Workers’ Compensation (Continued from page 31)
ence of the jury. Judge Stevenson, ruling from the Bench, granted Claimant/ Appellee’s Motion To Exclude Testimony. Having the Employer/Insurer left with no other expert, and being armed with the pre- sumption under LE 9-503, as well as the presumption that the Workers’ Compensa- tion Commission’s decision below which had found the claim compensable was prima facie correct, the undersigned moved for a Directed Verdict, which was granted. The Employer/Insurer, filed an appeal of Judge Stevenson’s rulings with the Court of Spe- cial Appeals. The Appeal is currently pending before that Court and oral argu- ments have been tentatively scheduled for March, 2000. In his Motion To Exclude Testimony, upon which the Court relied in making its decision to grant the Motion, the Claimant presented two apparently compelling argu- ments for excluding Dr. Wasserman’s expert testimony. First, Claimant argued, Dr. Wasserman’s videotaped testimony should not be allowed to be presented to the jury because, as was evident to Claimant’s coun- sel during the taping of Dr. Wasserman’s’ testimony prior to the start of the trial, Dr. Wasserman clearly and outrightly rejects the presumption of casual relationship between any public safety employee’s occupation and his/her heart condition, and, as such, his opinion is tantamount to a repeal of the statutory presumption of LE 9-503. The Claimant contended that Dr. Wasserman should not be allowed to testify, inasmuch as his opinion was contrary to the law in Maryland which recognizes by way of the presumption, such a causal relationship. Claimant’s second argument was that even if, assuming arguendo, he was not repeal- ing the statute’s presumption, Dr. Wasserman’s testimony should be excluded because it is irrelevant and would, conse- quently, serve only to confuse the jury as to the statutory standard of LE 9-503. Starting with the basic and indisputable fact that LE 9-503 expressly creates a statu- tory presumption of a causal relationship
between, in this case, a police officer’s heart disease and his employment, the Claimant argued that the factual basis for Dr. Wasserman’s opinion expressly rejecting the statutory presumption is clearly refuted by the legislative history and interpretation of the Maryland Workers’ Compensation stat- ute, as interpreted by the courts in, inter alia, Montgomery Co. v. Pirrone, 109 Md. App. 201, 674 A.2d 98 (1996), Montgomery Co. Fire Bd. v. Fisher, 298 Md. 245, 468 A.2d 625 (1983), Lovellette v. City of Baltimore, 297 Md. 271, 465 A.2d 1141 (1983), Colgan v. Bd. of Comm’rs, 21 Md. App. 331, 320 A.2d 82 (1974), aff’d, 274 Md. 173, 334 A.2d 89 (1975). Thus, the Claim- ant argued, notwithstanding Dr. Wasserman’s opinion to the contrary, the Maryland Legislature enacted Section 9- 503, granting police officers like Officer Shankle a presumption of causal connec- tion between their employment as police officers and any heart disease, hypertension or lung disease of which they suffer due to the unique stresses they incur within the course of their employment. When an expert’s opinion is legally mis- taken or based on an erroneous concept of law, numerous courts have held the testi- mony to be devoid of competency. See Federated Dept. Stores, Inc., v. Doe, 454 So.2d 10 (Fla.App. 3 Dist. 1984). In such instances, courts have noted that such an opinion is irrelevant and should be stricken or excluded all together. Sorenson v. Lower Niobara Nat. Res. Dist., 376 N.W. 2d 539 (Neb. 1985); Stubbs v. State Dept. of Trans- portation, 332 So.2d 155 (Fla.App. 1 Dist. 1976); Rodriquez v. Pino, 634 So.2d 681 (Fla.App. 3 Dist. 1994). Arguing that Dr. Wasserman’s opinion in this case is clearly contrary to the express provisions of the Workers’ Compensation statute, is based on an erroneous concept of law, and is legally mistaken, Claimant urged the Court to ex- clude Dr. Wasserman’s opinion. Although there appears to be a dearth of case law in Maryland on this particular point, almost the exact factual situation presented in the Shankle case has arisen numerous times in other states having simi- lar presumptive provisions for public safety
employees. As a whole, courts in other ju- risdictions have uniformly refused to allow such “expert” opinion to be offered.
In
Stephens v. Workers’ Comp. App. Bd., 97 Cal.Rptr. 713, 20 Cal.App. 3d 461 (1971), the California Court of Appeals for the Third District, when confronted with an opinion for the Employer/Insurer’s expert nearly identical to the one being proffered by Dr. Wasserman’s (i.e. contrary to the statutory presumption that stress and stress- ful occupations, such as fire fighting or police work, cause or relate to the accelera- tion of heart disease), stated in a strongly-worded and unambiguous opin- ion:
...[W]hat we can and must assert is that the legislature has declared that in workmen’s compensation applications stress and tension are to be taken into
consideration...It is impermissible for a compensation carrier to “repeal” this leg- islation, wiping out the presumption (created by section 3212.2), by seeking out a doctor whose beliefs preclude its possible application.
Id. at 716, 467. [Emphasis supplied]. In another California case, Pinion v.
Board of Retirement, 152 Cal.Rptr. 383, 89 Cal.App.3d 192 (1979), the Court sought to resolve any conflict between the legislature and a physician seeking to testify in direct contradiction of a statutory pre- sumption:
...the Legislature has resolved in favor of workmen in the enumerated stressful oc- cupations a question which some members of the medical community (as disclosed by the evidence in this matter) dispute - do stressful occupations cause heart trouble? It has delivered a legisla- tive mandate: stressful occupations of these classes not only cause heart trouble, there is a presumption that they do.
Id. at 386. [Emphasis supplied]. Similarly, in City and County of San
Francisco v. Workers’ Comp.
App.Bd., 22 Cal.3d 103, 148 Cal.Rptr. 626 (1978), the Court again faced a situation where the Employer’s expert attempted to offer expert testimony contrary to a legislatively-man- dated presumption afforded to public safety employees. The Court in that case focused on the purpose of the statutory presump- tion and recognized that the presumption was legislatively established for the very pur- pose of tipping the scales in favor of a Claimant when experts disagree over the theory of stress related heart disease: In light of the division in medical theory on this critical issue, the Legislature thus faced a situation in which the fate of an in- dividual worker’s claim generally did not turn on the facts of his particular employ-
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