Montgomery County Fire Board v. Fisher

Liss, J., delivered the opinion of the Court. These appeals arise from a decision by the Superior Court of Baltimore City affirming an order of the Workmen’s Compensation Commission (hereinafter the "Commission”). The Commission had found the claimant to be permanently and totally disabled, 50% disability attributable to the employer ⁴³⁷ and insurer and 50% pre-existing disability chargeable against the Subsequent Injury Fund (hereinafter the "Fund”). The employer, the Montgomery County Fire Board (hereinafter the "employer” and its insurer, the Insurance Company of North America (hereinafter the "insurer”) and the Fund as appellants challenge their 50% liability respectively to the appellee, Donald M. Fisher.

The employer and insurer also appear as appellees/cross appellants in support of the declared liability of the Fund. Donald M. Fisher, claimant, a fire fighter for Montgomery County, suffered a myocardial infarction on June 2, 1976 while at home. He was hospitalized and returned to restricted duty work on September 16,1976 for thirty days, then went on limited duty work. On October 27, 1976, after driving a fire truck and returning to the firehouse around 11:00 a.m., he ate lunch at noon, had chest pains and was hospitalized.

He did not return to work on his doctor’s advice and subsequently retired from his employment with Montgomery County on May 26, 1977. Appellee filed two claims for occupational disease under Maryland Code (1957, 1979 Repl. Vol.) Art. 101, 8 64A, one for the June 2, 1976 incident and one for the October 27, 1976 incident. The Fund was joined as a party for alleged pre-existing impairments.

The Medical Board held a hearing on the two claims on October 25,1977 (Dr. J. Howard Franz, presiding). Claimant testified in his own behalf and offered into evidence reports of Dr. Robert R. Montgomery, Dr. Harris M. Kenner and the deposition of Dr. William H. Killay in support of his claim. In contravention, reports of Dr. Sidney Scherlis were introduced on behalf of the employer and insurer and the Fund and the testimony of Dr. Scherlis was also received into evidence. On August 9, 1978, the Medical Board issued its report and findings on the medical questions involved in the claim and concluded as follows: It is medically accepted that the underlying basis for most myocardial infarctions is arteriosclerotic ⁴³⁸ cardiovascular disease, a long term process which progresses slowly to the point where it becomes clinically manifested.

Testimony and medical reports agree on an episode of myocardial infarction on June 2, 1976, but no specific myocardial infarction on October 27, 1976. The claimant incurred the myocardial infarction on June 2, 1976 while starting a lawn mower at home. The second incident, on October 27, 1976, "was not precipitated by exertion but had followed his driving a fire truck by three to four hours” * * * It is the opinion of the Medical Board that the disability of the claimant is attributable to arteriosclerotic cardiovascular disease, resulting in a myocardial infarction and subsequent episodes of angina. Multiple "risk factors” are recognized in the claimant.

Accordingly the Medical Board feels that the claimant’s condition is neither caused by or aggravated by his occupation. Following the decision by the Medical Board, claimant filed a petition for review and requested the Commission to review the record and proceedings before the Medical Board. On September 19, 1980, the Commissioner of the Workmen’s Compensation Commission issued an award of compensation which included the following findings of fact and of law: The Commission finds: 1. on and before the event of June 2, 1976 the claimant developed a progressive disease of arteriosclerotic cardiovascular disease; 2. that on June 2, 1976 and [sic] event off-duty due to exertion precipitated the pre-existing disease and/or disability; 3. that on October 29,1976 claimant within one hour after the operation of a fire truck had a myocardial infarction; 4. the presumption under Article 101 Section 64A is rebutted by the substantial and overwhelming evidence by Dr. Scherlis, Dr. Kenner and Dr. Montgomery as to the ⁴³⁹ incident of June 2, 1976; 5. the presumption under Article 101, Section 64A, though rebutted by Dr. Scherlis and Dr. Kenner and the testimony of Dr. Killay and Dr. Montgomery are sufficient legally to create compensability as to the incident of October 29, 1976; 6. that the pre-existing disability caused by the incident of June 2, 1976 was 50% industrial disability; 7. that the incident of October 29, 1976 precipitated the pre-existing arteriosclerotic cardiovascular disease and the disability of June 2, 1976 and the disability is 100%; 8. that the employer and insurer be assessed 50% disability and 9. that the Subsequent Injury Fund is assessed 50% disability; therefore, the Commission reverses the decision of the Medical Board and finds that the claimant did sustain an occupational disease arising out of and in the course of employment on June 2, 1976 and on October 29, 1976 and as a result thereof is permanently totally disabled, 50% of such disability is due to the occupational disease and 50% is due to pre-existing condition. It should be noted that this case was decided upon the law in effect and its philosophy of Article 101, Section 64A.

Without this presumption the Commission would not find compensability for the incident alleged herein. A petition for rehearing was requested by the employer and insurer and an appeal petition was filed by the Fund on October 16, 1980. On October 20, 1980, a rehearing took place before the Commission and legal argument was heard. An affidavit was filed by the claimant stating that since the incident of October 29, 1976 he had not worked at any gainful employment and that he was placed on disability retirement on May 26,1977.

On November 5,1980, the Commission issued an order granting the motion for rehearing. As a result of the rehearing, the Commission reaffirmed its order dated September 19, 1980 in all respects. ⁴⁴⁰ The employer and insurer filed an appeal to the Superior Court of Baltimore City and moved to consolidate its appeal with the appeal petition of the Fund dated October 16,1980. Claimant moved for summary judgment and answers to the motion were filed by the Fund and by employer and insurer. The employer and insurer also filed a cross-motion for summary judgment and a memorandum in support of the cross-motion.

On January 29,1982, trial was held before the Superior Court of Baltimore City and oral arguments were made. The court affirmed the decision of the Commission on January 29, 1982. The Fund then filed a motion for reconsideration on February 4, 1982, and the employer and insurer filed a motion for reconsideration on February 9, 1982. Oral arguments were again presented before the court on February 23, 1982.

By order dated March 2, 1982, the court affirmed the orders of the Commission, stating its reasons as follows: What he [the Commissioner] is saying is that this is an occupational disease. The legislature has put a cloak around occupational diseases, which he doesn’t really agree with. However, because of that, together with other evidence, there is sufficient in the case to find this man totally disabled. The court will, therefore, again affirm the decision of the Commission.

From that order an appeal was filed to this Court by the Fund on March 24, 1982, and by the employer and insurer on April 5, 1982. The three following issues are presented by these appeals: I. Whether the decision of the Workmen’s Compensation Commission was supported by legal sufficient evidence?

II

Whether the Workmen’s Compensation Commission committed an error of law in its application of the statutory presumption created by Maryland Code (1957, Repl. Vol.) Article 101, § 64A? ⁴⁴¹ III. Whether the Workmen’s Compensation Commission committed an error of law in finding that the Subsequent Injury Fund was liable for a portion of the claimant’s disability? I. and II.

We shall consider these issues together because they are inextricably joined by the enactment of the presumption created by Maryland Code, Article 101, § 64A. Section 64A (a) provides in part as follows: (a) Any condition or impairment of health of any paid municipal, county, State, airport authority or fire control district, fire fighter or fire fighting instructor caused by lung diseases, heart diseases, or hypertension and any condition or impairment of health of any paid State, municipal, Maryland-National Capital Park and Planning Commission, county or airport authority police officer caused by heart diseases or hypertension resulting in total or partial disability or death shall be presumed to be compensable under this article and to have been suffered in the line of duty and as a result of his employment. The Medical Board, which was established pursuant to Maryland Code (1957, 1979 Repl. Vol.) Article 101, § 27, consists of three members who "shall be licensed physicians in good professional standing” with specific expertise in the fields of industrial diseases and roentgenology.

See Big Savage Refractories Corp. v. Geary, 209 Md. 362 , 121 A.2d 212 (1956). The primary functions of the Medical Board are to conduct investigations, hearings, and file reports concerning occupational disease claims. These functions are essential to the process of establishing a right to compensation resulting from occupational diseases. Duncan v. McNitt Coal Co., 212 Md. 386 , 129 A.2d 523 (1957). ⁴⁴² Article 101, § 28 requires the Commission to refer every claim for compensation for an occupational disease to the Medical Board.

No award may be made in any such case until the Medical Board has completed its consideration of the case by filing a report in writing, stating its findings and conclusions on every medical question in controversy. Any party aggrieved by the findings of the Board may file a petition for review with the Commission. The Commission may review and reverse the findings of the Medical Board even though the Board may have substantial evidence to support its findings. Kelly-Springfield Tire Co. v. Roland, 197 Md. 354 , 79 A.2d 153 (1951); Bethlehem-Sparrows Point Shipyard, Inc. v. Bishop, 189 Md. 147 , 55 A.2d 507 (1947); Maryland Code, Article 101, § 29.

In the instant case no hearing was held by the Commission prior to its award, which reversed the Medical Board’s findings. Appellants concede that Article 101, § 29 does not expressly require the Commission to hold a hearing and review the proceedings, findings and report of the Medical Board; however, they contend that the language of the statute presumes that a hearing should be held because it sets the standard for review on appeal of the Commission’s decision. The relevant language is stated as follows: In any hearing, as provided for in §§ 22-30 of this article, held by the Workmen’s Compensation Commission in any case to determine any controversial questions, no finding of fact by the Workmen’s Compensation Commission shall be subject to be reviewed or set aside, reversed or modified. We do not agree with the appellant’s contention that the Commission was required to hold a hearing prior to or in conjunction with its review of the proceedings, findings and report of the Medical Board.

We are even less persuaded by the argument that because the Commission held no hearing, the trial court, in direct contravention of the provisions of the statute, had the right to review the findings of fact of the Commission. The purpose of the establishment of the elab ⁴⁴³ orate Medical Board proceedings was to provide a forum where complicated and technical medical issues derived from occupational disease claims could be properly investigated and hearings conducted, including the testimony of expert witnesses, and the record of proceedings submitted to the Commission for its fínal decision. To require a hearing in each case, upon review, would defeat the very purpose for creating the Medical Board. This is not intended to suggest that under the circumstances of a given case that the Commission could not require further testimony at its discretion.

We see nothing in the statute, however, which requires an additional hearing in every case submitted to the Commission for its review. Appellants next contend that there was insufficient evidence to support the finding of the Commission granting the award to the claimant. The joint record extract discloses that the appellee suffered a myocardial infarction for which he was treated in a hospital in a coronary care unit. He was returned to light duty several months later.

Approximately a month thereafter, after returning from a fire call, he experienced the onset of severe chest pains. He was again admitted to coronary care under the supervision of his attending physician, Dr. Killay. In the hospital he also consulted with Dr. Robert R. Montgomery. Both the attending physician and the consultant agreed that the claimant should retire and not return to work as a fire fighter.

At the hearing before the Medical Board the deposition of Dr. William Killay was submitted. He stated in pertinent part: Q Now I think I will ask you the opinion question again. Do you have an opinion, based upon reasonable medical certainty, as to whether Mr. Fisher’s employment caused in whole or in part, the myocardial infarction of June 2nd, 1976? A In my opinion, the emotional stress contributed in all probability to his underlying arteriosclerotic heart disease and thus to his myocardial infarction and his subsequent hospitalization for prolonged angina, yes.