Workers’ Compensation Edited by P. Matthew Darby
P. Matthew Darby is a partner in the firm of Albertini & Darby, LLP, of Baltimore and received his J.D. from the University of Maryland School of Law. Mr. Darby is a member of MTLA’s President’s Club as a Founder and serves as a member of the Membership Committee. His practice concentrates in the representation of injured workers in Maryland’s Workers’ Compensation Claims, Longshore and Harbor Workers’ Claims, Federal Employers’ Liability Act Claims and general liability claims before various state and federal courts.
Preventing the Use of Expert Testimony:
Attacking the Basis of the Occupational Disease Presumption by Kenneth M. Berman, Esquire
Kenneth M. Berman is a Partner in the law firm of Berman, Sobin & Gross, LLP, a seven-lawyer firm concentrating on representing injured workers throughout Maryland. He is a graduate of the University of Rochester, and received his J.D. from the George Washington University National Law Center. Mr. Berman has been an active member of MTLA since the 1980’s and has served as faculty for various MTLA Workers’ Compensation Seminars.
In 1957, the Maryland Legislature adopted Article 101, Section 64A with the express purpose of providing a presumption of com- pensability for certain occupational diseases to certain classes of public employees who, in the course of their daily activities, are sub- jected to unusual hazards, stresses, and strains. Over the years, the Legislature has fine-tuned the original version of the law to what is now currently codified at Section 9- 503 of the Labor and Employment Article of the Annotated Code of Maryland. Un- der the provisions of LE 9-503, the presumption has been extended to include both paid and volunteer fire fighters, police officers, certain deputy sheriffs, fire marshals, and various other public safety employees. In a nutshell, under LE 9-503, (or sim-
ply “the Heart-Lung Bill,” as it has come to be known among practitioners in the work- ers’ compensation arena as well as public safety employees), it is “presumed” that po- lice officers, fire fighters and other enumerated public safety employees who have developed heart disease, hypertension, lung disease or certain types of cancer, which result in total or partial disability, or death, have incurred these problems due to the unusual hazards, stresses and strains of their occupations. Thus, if a police officer or fire fighter develops heart disease, hypertension, or lung disease, these conditions will pre- sumptively be compensable and the police officer or fire fighter is then entitled to work- ers’ compensation benefits.
While the
presumption can be rebutted or overcome with evidence that the hypertension or heart disease was contracted by the public safety employee through some other means (such as family history, unrelated illness, or other non-work related factors), the presumption is extremely strong. Unlike the situation
Winter 2000
with alleged “accidental injuries” or ordinary occupational disease claims, in which the burden is on the Claimant to demonstrate compensability, the Maryland Court of Ap- peals has interpreted the presumption under LE 9-503 to mean that both the burden of production and the burden of persuasion remain fixed on the employer - neither ever shifts to the claimant and the presumption constitutes affirmative evidence on the [pub- lic safety employee’s] behalf throughout the case, notwithstanding the production of contrary evidence by the other side. Mont- gomery County Fire Bd. v. Fisher, 298 Md. 245, 468 A.2d 625 (1983). Notwithstanding the unambiguous in- tent of the Legislature in adopting and expanding the presumption and the Court’s liberal interpretation of LE 9-503, Employ- ers and Insurers have recently adopted a new strategy in an attempt to make an end-run around the presumption. In what can only be viewed as an attempt on the part of cer- tain Municipalities and their Insurers to re-write the law, it has become fashionable to attempt to “rebut” the presumption by eliciting expert testimony from medical pro- fessionals who “do not believe in” the presumption. In other words, Employers, in their attempts to rebut the presumption, have hired certain medical experts who have been willing to offer “medical opinions” that if a public safety employee has a heart dis- ease or hypertension, it is not, and, more importantly, could not be related to his/her employment as a public safety employee. This recent trend is exemplified in the ongoing battle being waged right now in the Maryland court system between Donald Shankle, a police officer, and the City of Frederick and its Insurer, Ohio Casualty In- surance Company, (formerly known as
Trial Reporter
Great American Insurance Company). Officer Shankle, a veteran police officer with the City of Frederick’s Police Department, with over twenty (20) years of experience, was first diagnosed with coronary heart dis- ease following his “years of service” retirement.
Officer Shankle filed a claim
with the Workers’ Compensation Commis- sion of Maryland, seeking compensation for an occupational disease (coronary heart dis- ease) suffered in the course of employment. (The presumption has been held to apply to public safety employees who develop heart disease after they are retired. SeeMont- gomery County v. Pirrone, 109 Md. App. 201, 674 A.2d 98). The City of Frederick filed issues disputing that Officer Shankle suffered from an occupational disease. A hearing was held before the Maryland Workers’ Compensation Commission on October 27, 1997. The Commissioner found Officer Shankle’s heart disease com- pensable as an occupational disease, pursuant to LE 9-503. The City of Frederick filed an appeal with the Circuit Court for Frederick County and a jury trial was set for July 7, 1999. Prior to the start of the jury trial in
Frederick Circuit Court, the Claimant/Ap- pellee filed a Motion To Exclude/Strike Testimony, seeking to prevent the testimony of Dr. Alan Wasserman, the Employer/In- surer/Appellant’s medical expert, from being put before the jury. Dr. Wasserman is the Chief of Cardiology at George Washington University Hospital in Washington, D.C. On the morning of the trial, the Honorable Julie Stevenson, before proceeding with tes- timony before the jury, reviewed the Motion and heard oral arguments out of the pres-
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