Montgomery County v. Pirrone

WENNER, Judge. Montgomery County, Maryland, appealing from a judgment of the Circuit Court for Montgomery County, entered in favor of appellee, Austin A. Pirrone, presents us with the following questions: (1) Did the lower court err when it denied appellant’s Motion for Summary Judgment and applied the presumption of compensability under Article 101, § 64A(a)(l) to a Workers’ Compensation claim filed by a nearly two-year retired fire-fighter/paramedic who had voluntarily retired for non-medical reasons? (2) Did the lower court err when it refused to provide requested jury instructions of appellant when it instructed the jury, and/or when it responded to jury questions? (3) Did the lower court err when it denied appellant’s Motions for Judgment?

Finding no error, we shall affirm the judgment of the circuit court. Former Proceedings On 22 May 1990, appellee filed a claim with the Workers’ Compensation Commission (“Commission”) claiming to have suffered a heart attack because of his many years as a fire fighter. His claim was based upon Article 101, § 64(a) of Maryland’s Workers’ Compensation Law which, among other ²⁰⁷ things, provides a presumption of compensability in favor of fire fighters 1 suffering from heart related illnesses. After a hearing officer determined that Article 101 § 64A(a)(l) covers retired fire fighters, the Commission concluded that “[a]ppellee had sustained an occupational disease arising out of and in the course of employment.” Appellant then noted an appeal to the Circuit Court for Montgomery County.

Appellant’s subsequent Motion for Summary Judgment was denied. At trial, appellant once again moved for summary judgment after playing for the trial court a de bene esse video deposition of an expert witness, endeavoring to reveal a lack of connection between appellee’s condition and his years as a fire fighter/paramedic. The motion was denied. Appellant then moved to have the case remanded to the Workers’ Compensation Commission.

That motion was also denied. The trial court then granted appellee’s motion for summary judgment, concluding that appellee had suffered an occupational disease as a result of his employment as a fire fighter/paramedic. Undaunted, appellant journeyed to Annapolis, where, in an unreported per curiam opinion, we declined to decide whether Article 101, § 64A(a)(l) applied to retired fire fighters but concluded that appellant had presented sufficient evidence to rebut § 64A(a)(l)’s presumption of compensability. We reversed the judgment of the circuit court and remanded the case to that court for further proceedings.

On remand, appellant again moved for summary judgment which was again denied. Following a three day trial, the jury returned a verdict in favor of appellee. Appellant again noted an appeal. ²⁰⁸ Facts Appellee had been a fire fighter/paramedic for various fire departments for twenty-eight (28) years, twenty-one (21) of those years for Montgomery County. In January of 1988, appellee took an early retirement.

On 30 October 1989, he suffered a heart attack. At the time of the attack, appellant was working two jobs for approximately 50 to 55 hours per week. In a hearing before the Commission, appellee presented medical evidence from a board certified cardiologist who opined that appellee’s heart attack was precipitated, at least in part, by his years as a fire fighter/paramedic. Appellee’s cardiologist also testified that there was insufficient time between appellee’s retirement and heart attack to account for the level of progression of appellee’s coronary artery disease.

In short, appellee’s expert felt that it had taken more than two years for appellee’s condition to ripen into a heart attack. At the Commission’s hearing, appellant offered no rebuttal evidence, merely asserting that appellee was not covered by Article 101, § 64A(a)(l). The Commission, however, concluded: (1) [Appellee] sustained an occupational disease arising out of and in the course of employment, under the provisions of Article 101, § 64A(a)(l) (heart disease); and (2) the first date of the disablement was October 30, 1989; and (3) the disability of [appellant] is the result of the occupational disease; and (4) as a result thereof, was temporarily totally disabled from October 31, 1989 through March 15,1990 inclusive; and (5) that the employer and insurer shall pay medical expenses in accordance with the Medical Fee guide of this Commission. At trial, appellant also produced a board certified cardiologist.

Appellant’s cardiologist opined that appellee’s heart ²⁰⁹ attack was more likely to have been precipitated by appellee’s continuing elevated cholesterol and triglyceride levels as well as appellee’s having been an incessant smoker since he was 18 years old, concluding that: [Appellee’s] occupation had nothing to do with what was going on in his arteries. No matter what occupation [appellee] had, he was destined to develop coronary artery disease and have a heart attack ... Patients with high cholesterol, patients with cigarette smoking to this degree, have a great risk of developing coronary artery disease and developing a heart attack, as is commonly known, and that is irrelevant to what occupation a patient is in. Predictably, appellee’s cardiologist concluded otherwise.

Although he was unable to apportion the role of multiple risk factors such as smoking, elevated lipid levels, and job stress 2 in the development of appellee’s coronary artery disease, appellee’s cardiologist nonetheless maintained that appellee’s having been a fire fighter/paramedic for 28 years contributed to his eventual heart attack. Discussion I. Appellant first contends that the trial court erred in denying its Motion for Summary Judgment, having mistakenly concluded that Article 101, § 64A(a)(l) entitled appellee to a presumption of compensability. As this is a question of law, we must determine whether the trial court was legally correct. Beatty v. Trailmaster, 330 Md. 726, 737 , 625 A.2d 1005 (1993).

Article 101, § 64A(a)(l) provides in pertinent part: 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 ²¹⁰ impairment of health * * * 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 (emphasis added). According to appellant, as appellee suffered a heart attack after retiring, he was not a paid fire fighter and therefore not entitled to § 64A(a)(l)’s presumption of compensability. We do not agree. To the contrary, after examining § 64A(a)(l)’s legislative history and the relevant opinions of the Court of Appeals, we do not believe appellee’s retirement deprived him of § 64A(a)(l)’s coverage.

In fact, we believe the insidious and often elusive nature of occupational diseases compels the opposite conclusion. Although the Court of Appeals has recognized that prior to the enactment of § 64A(a)(l) “heart disease [was] not generally recognized as an occupational disease,” Lovellette v. Mayor and City Council of Baltimore, 297 Md. 271, 284 , 465 A.2d 1141 (1983), the enactment of § 64A evidenced “the legislature’s clear intention to afford fire fighters ... a presumption that the disease was work related.” Id. In short, “it does not matter how the fire fighter contracted the disabling heart disease or how it first became evident since it is presumptively compensable as an occupational disease[.]” Montgomery Co. Fire Bd. v. Fisher, 298 Md. 245, 256 , 468 A.2d 625 (1983). As in the present case, “[w]hen the issue is who must pay compensation, it is the date of [the] last injurious exposure to the hazard of the disease, and not the date of disability that governs.” James v. General Motors Corp., 74 Md.App. 479, 486 , 538 A.2d 782 (1988) (citing Shifflett v. Powhattan Mining Co., 293 Md. 198, 203 , 442 A.2d 980 (1980)).

Appellant attempts to circumvent James by asserting that appellee was not suffering from coronary artery disease when he retired, and thus was not suffering from an occupational disease at the time of his last injurious exposure. Both cardiologists con ²¹¹ ceded at trial, however, that appellee was suffering from coronary artery disease 3 while still a fire fighter/paramedic. Even a conclusion that appellee was not suffering from coronary artery disease on his retirement, would be of no avail to appellant. As the Court of Appeals observed in Montgomery County v. Fisher, “[o]nce the presumption of compensability has been applied, the Commission ‘must then consider whether it has been rebutted by other evidence in the case showing that non-job related factors either caused or contributed, in whole or in part, to [the fire fighter’s] heart disease ____’” As appellant sees it, in order to be entitled to § 64A(a)(l)’s presumption, appellant must have been employed as a fire fighter/paramedic on 30 October 1989, the date of his last injurious exposure to the hazard of the disease. 4 We disagree.

We reiterate that the purpose of Article 101 § 64A(a)(l) was: ²¹² to grant fire fighters a presumption that a disability arising from lung and heart diseases was suffered in the line of duty and as a result of their employment [, and to reinforce the notion that] [t]here is general public knowledge that fire fighters in the course of their daily activities, are exposed to inhalation of smoke or noxious fumes and are subjected to unusual stresses and strains (citations omitted). Soper v. Montgomery County, 294 Md. 331, 335-36 , 449 A.2d 1158 (1982). Thus, it would be anomalous to hold that appellee is not entitled to § 64A(a)(l)’s presumption. In appellant’s view, a fire fighter who works for one year and suffers a heart attack is entitled to § 64A(a)(l)’s presumption of compensability, while one who is a fire fighter for 28 years, retires, and then suffers a heart attack, is not.

In our view, however, we believe that § 64A “should be construed as liberally in favor of [fire fighters] as its provisions will permit in order to effectuate its benevolent purposes.” Soper, 294 Md. at 335 , 449 A.2d 1158 . We are mindful that after the last injurious exposure to a hazard and the conclusion of employment the nexus between an occupational disease and an occupation becomes increasingly remote. In our view, however, this simply makes § 64A(a)(l)’s presumption easier to rebut, but in no way renders it inapplicable. Accordingly, we conclude that appellee is