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Down the Workers’ Compensation Rabbit Hole: Mastering the Statute of Limitations in Occupational Disease Cases and the Notion of “Disablement” by Kenneth M. Berman and Jason R. Engel

Kenneth M. Berman is a founding partner of the law firm of Berman, Sobin & Gross, LLP. He graduated cum laude from the‘University of Rochester and attended George Washington University Law Center. He is a member of the Maryland State Bar Association, Inc. and the District of Columbia Bar.

Jason R. Engel is an associate of the law firm of Albertini & Darby, L.L.P. He is a graduate of Rutgers University, Rutgers College and the University of Maryland School of Law. He is admitted to practice in Maryland, the District of Columbia, and the United States District Court for the District of Maryland. He is the Vice-Chairman of the Workers’ Compensation Section of the Maryland Trial Lawyers Association. His practice focuses his practice on workers’ compensation and personal injury related matters.

The first hurdle in filing any occupa-

tional disease claim is to file the claim within the statute of limitations. The problem in occupational disease cases is often determining when the statute of limitations begins to run. The control- ling section is the only one in the entire Workers’ Compensation Act that has an “actual knowledge” requirement, tied to the definition of “disablement,” which may bring forth as many varied answers as those individuals answering. The Act sets forth the statute of limi-

tations period for occupational disease claims.

(a) Filing claim.——If a covered employee suffers a disablement or death as a result of an occupational disease, the covered employee or

the dependents of the covered employee shall file a claim with the Commission within 2 years, or in the case of pulmonary dust disease within 3 years, after the date:

(1) of disablement or death; or

(2) when the covered employee or the dependents of the covered em- ployee first had actual knowledge that the disablement was caused by the employment.

Md. Labor & Emp. Code Ann. §9-711(a) (2004).

Section 9-711(a) (2) creates two seem-

ingly independent tests to determine when the statute of limitations period

begins in an occupational disease claim. The Court of Special Appeals has held that a covered employee may file a claim either two years after the “disablement,” or upon “actual knowledge” that the disablement was caused by the employ- ment. In essence, this section provides to the covered employee or his dependents a choice of alternatives; but a prerequisite to filing remains, however, in that a sine qua non must exist. Helinski v. C & P Tel. Co., 108 Md. App. 461, cert. denied, 342 Md. 582 (1996). Thus, the limitation period does not effectively begin until two years after both the disablement and the actual knowledge of said disablement are satis- fied, thereby often extending the time to file the claim. Proving that the claimant possessed

“actual knowledge” is a very difficult task to satisfy for an employer/insurer. The Court of Special Appeals defined the term “actual knowledge” as used in §9-711(a) (2):

The Act does not define the term [actual knowledge], and, being clear and unambiguous, we are inclined to accord those words their common and ordinary meaning. In addition, we note that, in a legal context, the use of the word “actual” means, inter alia: “Something real, in opposition to con- structive or speculative.... It is used as a legal term in contradistinction to [the terms] virtual or constructive[.]

Lombardi v. Montgomery County, 108 Md. App. 695, 709 (1996)(quoting Black’s Law Dictionary 34 (6th

ed. 1990)). Lom-

bardi noted that the “actual knowledge” standard is very stringent, compared to the “constructive” knowledge standard set forth in statute of limitations provisions in other areas of the law. Id. Therefore, in addition to establishing “disablement,”

(Continued on page 44) 42 Trial Reporter Summer 2006

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