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City of Frederick v. Shankle12/4/2001
The issue before us in this workers' compensation case is whether, when a police officer (or fire fighter) seeks compensation for heart disease as an occupational disease and relies on the presumption of compensability provided in Maryland Code, § 9-503 of the Labor and Employment Article (LE), a medical expert retained by the employer may be permitted to testify that stress from police work is never a factor in causing heart disease. The Circuit Court for Frederick County said "no," the Court of Special Appeals said "no" (Frederick v. Shankle, 136 Md. App. 339, 765 A.2d 1008 (2001)), and we shall say "no."
BACKGROUND
The Maryland Workers' Compensation Act requires employers to pay certain workers' compensation benefits to covered employees who suffer disability resulting from an occupational disease. LE § 9-502. Under that provision, the employer is liable only if (1) the occupational disease that caused the disability either (i) is due to the nature of an employment in which the hazards of the occupational disease exist and the employee was employed before the date of disablement, or (ii) has manifestations that are consistent with those known to result from exposure to a biological, chemical, or physical agent that is attributable to the type of employment in which the employee was employed before the date of disablement; and (2) on the weight of the evidence, it reasonably may be concluded that the occupational disease was incurred as a result of the employment.
Ordinarily, the burden is on the claimant to show that he/she comes within the provisions of the occupational disease statute - that the claimant suffers from an occupational disease that was incurred in his/her employment. Maryland Bureau of Mines v. Powers, 258 Md. 379, 384, 265 A.2d 860, 862 (1970); Mutual Chemical Co. v. Thurston, 222 Md. 86, 94, 158 A.2d 899, 903 (1960); see also King v. Board of Education, 354 Md. 369, 731 A.2d 460 (1999). In LE § 9-503(b), however, the Legislature has created a limited presumption of compensability in favor of police officers who contract heart disease or hypertension. In relevant part, that section states that a paid police officer "is presumed to be suffering from an occupational disease that was suffered in the line of duty and is compensable under this title if: (i) the police officer . . . is suffering from heart disease or hypertension; and (ii) the heart disease or hypertension results in partial or total disability or death."
Donald Shankle was employed as a police officer for Frederick County from 1974 to 1996. On April 2, 1996, he filed a workers' compensation claim, asserting that he was suffering from occupational heart disease due to the stress of his job as a police officer for over 20 years. There is no dispute that Shankle actually suffers from heart disease; in May, 1996, he underwent by-pass surgery. The Workers' Compensation Commission found that he sustained a compensable occupational heart disease in the course of his employment and awarded him benefits for two periods of temporary total disability. The county sought judicial review.
In preparation for trial in the Circuit Court, the county took the de bene esse deposition of Dr. Alan Wasserman, whose general expertise as a cardiologist is not in dispute. Dr. Wasserman began his testimony by describing coronary artery disease as a buildup of plaque and fatty tissue in the (coronary) arteries, which eventually can cause an obstruction that reduces the blood flow in times of stress. He noted, in addition, that the plaques can break and bleed and that, when they do, they can cause a blood clot that, itself, may obstruct the blood flow and cause a heart attack. Dr. Wasserman then iden
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