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Workers’ Compensation (Continued from page 42)


an employer would still have to prove that the claimant had “actual knowledge” that the “disablement” was due to his employ- ment. See Md. Labor & Emp. Code Ann. §9-711(a)(2) (2004). Lombardi held that the “actual knowledge” requirement is not satisfied until the covered employee has actual knowledge that he was suffer- ing from a compensable occupational disease. Id. In Lombardi, the claimant testified


that he did not suspect or believe that he was suffering from a compensable occupational disease, diagnosed in 1988, until more than three years later, in 1991. The Court of Special Appeals held that reasonable minds could have differed as to when the claimant had the requisite knowledge. Id. Therefore, the Court held that disposing of the issue by way of summary judgment was completely inappropriate, and that the trial court had erred in ruling, as a matter of law, that the employee’s claim was barred by the statute of limitations. Id. The second part of the relevant defi-


nition, “disablement,” is a bit more amorphous. “Disablement” is defined in Section 9-502 to mean:


(a) “Disablement” defined. —— In this section, “disablement” means the event of a covered employee becoming partially or totally in- capacitated:


(1) Because of an occupational disease; and


(2) From performing the work of the covered employee in the last occupation in which the covered employee was injuriously exposed to the hazards of the occupational disease.


Md. Labor & Emp. Code Ann. §9-502 (a)(2004). Both elements set forth in §9-502(a) must be satisfied to trigger “disablement.”


The terms “disablement” and “inca- pacitated” have been clarified only to a limited extent in case law. The Court of Special Appeals noted that “disable-


ment” is equivalent to incapacitation, and must relate to the requirements of the job last performed. Helinski, supra, at 471. Furthermore, the Court of Appeals held that while the word “incapacitated” is not defined in the statute, it is a word which is neither ambiguous nor equivo- cal and imports no technical industrial meaning. It found that an employee is not incapacitated within the intent of the law if the employee, though injured, has the capacity, ability, or continues to perform the regular work for which he/she was employed, and receives his/her usual pay for the work. Belschner v. Anchor Post Prods. Inc., 227 Md. 89 (1961). The question often arises whether the


statute of limitations has run, assuming that the claimant had “actual knowledge,” in situations when the claimant did not miss time from work, e.g. is on medica- tion, or simply visited a physician. The response to the argument by an employer that such circumstances amount to a “disablement,” is simply that attending a doctor appointment and/or receiving medication do not, by themselves, equate


(Continued on page 46)


• Forensic Accounting • Fraud Investigating


• Forensic Computer Analysis


• Asset Tracing


• Recovery of Deleted and Altered Data


• Business Valuation • Expert Witness Testimony


44


Trial Reporter


Summer 2006


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