Smith v. Howard County

KENNEY, J. In June of 2004, appellant, Owen E. Smith, Jr., a retired 26-year veteran of the Howard County Police Department, filed a claim with the Workers’ Compensation Commission (the “Commission”). Appellee, Howard County, did not file a timely response and the Commission entered an order in favor of Smith. Howard County appealed the Commission’s order by requesting a jury trial in the Circuit Court for Howard ³³⁰ County. At the close of evidence, the circuit court granted Howard County’s motion for judgment.

On appeal, we address the following questions: I. Was sufficient evidence presented to the jury to defeat Howard County’s motion for judgment?

II

Can a claimant, who prevailed before the Commission on an uncontested claim because of the employer’s late filing, establish a prima facie case for worker’s compensation before a jury in the circuit court based solely on the claimant’s victory before the Commission? For the following reasons, we shall affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL HISTORY On October 14, 1975, Smith began his service with the Howard County Police Department. He graduated from the police academy in 1976 and was immediately assigned to patrol duties.

With the exception of a brief assignment in traffic enforcement in 1988, Smith was a patrol officer until his retirement on July 1, 2002. On June 24, 2004, Smith filed a worker’s compensation claim with the Commission. He alleged injuries to his hips and knees from continuously entering and exiting his patrol vehicle over a 26-year period, which was aggravated by the weight of the equipment routinely carried on his person. On the claim form, Smith wrote: “Repeated entering/exiting of police vehicle in performance of duties, wearing gun belt, ballistic vest, etc. Over 26.3 years averaged 800-1000 entries/exits per month.” The stated date of disablement was October 5, 2002. 1 Howard County did not file a response and, on August 6, 2004, the Commission issued the following order on Smith’s uncontested claim: ³³¹ After due consideration of the above entitled case, it is determined that the claimant sustained an accidental injury or occupational disease/illness as defined in The Labor and Employment Article, 9-101 (b) or (g) Article 101, Sec. 67(6) arising out of and in the course of employment on 10/05/2002 It is, therefore, this day, 08/06/200/ by the Workers’ Compensation Commission ORDERED that the claim for compensation filed with this Commission in this case by the said claimant against the said employer and insurer be held pending until such time as the nature and extent of the claimant’s disability, if any, can be determined.

On August 19, 2004, Howard County filed an appeal with the circuit court and requested a jury trial. After both parties presented their evidence, Howard County moved for judgment, pursuant to Maryland Rule 2-519. The court granted Howard County’s motion. Judgment was entered on August 23, 2006.

Smith filed a notice of appeal on that date. DISCUSSION I. The Burden of Production at Trial Smith claims that he suffered an “occupational disease” during the course of his employment. 2 Under Maryland Code Annotated (1991, 1999 RepLVol.), § 9 — 502(d)(1) of the Labor and Employment Article (“LE”), an employer is liable to his or her employees for an “occupational disease” that: ³³² (i) is due to the nature of an employment in which the hazards of the occupational disease exist and the covered 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 covered employee was employed before the date of disablement!;.] LE § 9-101(g) defines an “occupational disease” as “a disease contracted by a covered employee: (1) as the result of and in the course of employment; and (2) that causes the covered employee to become temporarily or permanently, partially or totally incapacitated.” We have described an occupational disease as, one which arises from causes incident to the profession or labor of the party’s occupation or calling. It has its origin in the inherent nature or mode of work of the profession or industry, and it is the usual result or concomitant. If, therefore, a disease is not a customary or natural result of the profession or industry, per se, but is the consequence of some extrinsic condition or independent agency, the disease or injury cannot be imputed to the occupation or industry, and is in no accurate sense an occupation or industry disease.

LeCompte v. United Parcel Service, Inc., 90 Md.App. 651, 654 , 602 A.2d 261 (1992). To satisfy the burden of production, a party must establish “some minimal evidence.” Darcars Motors of Silver Spring, Inc. v. Borzym, 150 Md.App. 18, 53 , 818 A.2d 1159 (2003). The burden is “slight,” but “more than a ‘mere scintilla of evidence, ... more than surmise possibility, conjecture’ ” is required. Mc Quay v. Schertle 126 Md.App. 556, 569 , 730 A.2d 714 (1999) (citation omitted).

To prevail on his claim, Smith was, therefore, required to produce some evidence, even if minimal, to demonstrate: (1) that the alleged occupational disease is inherent in the nature of the work of a police officer; (2) that his injuries were causally related to his performance ³³³ of that work; and (3) that as a result, he was incapacitated as of October 5, 2002, the date of his alleged disablement. See Luby Chevrolet, Inc. v. Gerst, 112 Md.App. 177, 183 , 684 A.2d 868 (1996); see also Richard R. Gilbert and Robert L. Humphreys, Jr., Maryland Workers’ Compensation Handbook, § 8.1, at 164 (1993). When Howard County moved for judgment, the parties’ arguments were primarily directed to whether Smith satisfied his burden of producing evidence that he was “incapacitated.” 3 Smith contended not only that the evidence presented to the jury demonstrated that he was incapacitated, but that his victory before the Commission constituted a prima facie case. Even if minimal evidence was produced to satisfy the first two elements of his claim, we are not persuaded that Smith demonstrated “incapacity” or “disablement,” within the meaning of the Maryland Workers’ Compensation Act (the “Act”), LE 9-101 et seq.

LE § 9-502(a) states: “Disablement ” defined.-In this section, “disablement” means the event of a covered employee becoming partially or totally incapacitated: (1) because of an occupation disease; and (2) from performing the work of the covered employee in the last occupation in which the covered employee was incuriously exposed to the hazards of the occupational disease. The question is whether Smith demonstrated that he was partially incapacitated from performing the duties of a patrol officer as of October 5, 2002. See Waters v. Pleasant Manor Nursing Home, 361 Md. 82, 98 , 760 A.2d 663 (2000) (“the date ³³⁴ of injury for determining benefits for an occupational disease is the date of disablement.”). In Helinski v. C & P Telephone Co., 108 Md.App. 461, 472 , 672 A.2d 155 (1996), we stated: An incapacity to work in one set of conditions applicable to a particular job does not necessarily indicate or equate with an incapacity to perform the work in an occupation.

Whether a disablement suffices to be occupational in scope would depend, at least in part, upon how the occupation is defined and how much of the range of activity fairly included within the occupation is in fact foreclosed to the claimant. If, indeed, the claimant is able to continue to perform reasonably analogous work within the same occupational classification!;,] ... he is not incapacitated ‘from performing his work in the last occupation.’ (Citation omitted.) At trial, Smith relied on his testimony and the taped deposition of his orthopedic surgeon, Dr. Drapkin, to demonstrate that he was disabled. Smith testified: (1) that he suffered pain in his hips from entering and exiting the vehicle; (2) that “several times getting in and out of the car, [his] right knee would give way”; and (3) that his condition was getting worse. He offered two reasons for his retirement on July 1, 2002.

First, he stated that he “was having more difficulty getting in and out of the car without the pain.” Second, “the fact that we did have a new retirement [schedule] made it easier to accept.” Smith first visited Dr. Drapkin on August 18, 2004. Dr. Drapkin testified that: (1) Smith “had a little loss of motion and a little pain in the front of his hip”; (2) his right knee “had a fair amount of crepitus,” which causes “discomfort” in the knee; (4) an x-ray of his right knee “revealed some minimal degenerative changes due to normal wear and tear”; and (5) his condition “need[ed] to be treated or improved if he wants to do this job at all.” Dr. Drapkin diagnosed Smith as suffering from “inflamation of both of his hips” and “an internal derangement to his right knee.” ³³⁵ On direct examination, Smith testified that a patrol officer’s job includes various tasks: The normal duties are you go to your vehicle, obviously. You start your patrol after you call in service. You’re available for dispatch calls.

If somebody calls in a complaint, something in progress, they dispatch that; we respond to those. You also do business checks, liquor establishment checks, traffic enforcement, any type of special assignment that may be in your area.... [Y]ou investigate collisions. There’s a myriad of things that you do [] as a patrol officer. You handle everything that comes in at the first line of policing. [COUNSEL]: So, do you spend most of the day in and out of your vehicle? [SMITH]: Yes. [COUNSEL]: How many times, would you say, an average sort of day, you’re in and out of the vehicle, of the car? [SMITH]: You’d have to average it out by how much traffic the individual officer does.

If you make a traffic stop to run a