City of Frederick v. Shankle

• Decision Date: 04 December 2001
• Docket Number: No. 24,24
• Parties: CITY OF FREDERICK, et al. v. Donald SHANKLE.
• Court: Maryland Court of Appeals

785 A.2d 749

367 Md. 5

CITY OF FREDERICK, et al. v. Donald SHANKLE.

No. 24, Sept. Term, 2001.

Court of Appeals of Maryland.

December 4, 2001.

Michael J. McAuliffe (Quinn, McAuliffe & Rowan, on brief), Rockville, for petitioners.

Kenneth M. Berman (Alan B. Gross of Berman, Sobin & Gross, L.L.P., on brief), Gaithersburg, for respondent.

Thurman W. Zollicoffer, Jr., City Sol. for Baltimore City, Charles W. Thompson, Jr., County Atty., Rockville, on brief of Amici Curiae, Mayor and City Council of Baltimore City, Montgomery County and Prince George's County on behalf of petitioners.

P. Matthew Darby, Albertini, Singleton, Gendler & Darby, L.L.P., Baltimore, on brief of Amicus Curiae Md. Trial Lawyers Ass'n on behalf of respondent.

Molly A. Elkin, Thomas A. Woodley, Erick J. Genser, Denise M. Dunkin, Woodley, Genser & McGillivary, Washington, DC, on brief of Amicus Curiae Intern. Ass'n of Fire Fighters on behalf of respondent.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL, and BATTAGLIA, JJ.

WILNER, Judge.

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 the City Frederick 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 city sought judicial review.

In preparation for trial in the Circuit Court, the city 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 identified a number of "risk factors," or circumstances that make one more likely to develop heart disease. The five generally recognized risk factors, he said, were family history, male gender, diabetes, high cholesterol levels, hypertension, and smoking, but he observed that other factors had been recognized in recent years as well, among them insulin resistance and high levels of homocystine, fibrinogen, and PAI or PAI-1 resistance (which he did not further identify). Dr. Wasserman noted that some people believed that obesity and a sedentary life style were also risk factors, and, although he accepted that a sedentary life style might be such a factor, he did not believe that obesity was one.

Although Dr. Wasserman never examined Officer Shankle, he reviewed Shankle's medical records and, from those records, concluded that Shankle had at least four, and likely had all five, of the generally recognized risk factors: his father died suddenly at age 60 and, without any direct knowledge of the event, Wasserman presumed merely from the suddenness of the demise that the cause of death was heart disease, thus giving Shankle a family history of heart disease;¹ Shankle was obviously a male; he had an elevated cholesterol level, particularly the "bad" or LDL cholesterol; he may have had hypertension, although that was not entirely clear; and he was a smoker.

The part of Wasserman's testimony that generated the issue now before us concerned his belief that there was utterly no correlation between job stress and heart disease. He first expressed the view in terms of Shankle individually, opining that his occupation "played no role" in the development of his coronary artery disease. That conclusion, it was later revealed, was based on his broader belief, from 20 years of experience and from teaching preventive medicine "that it is not accepted in the medical community that stress causes coronary artery disease or is a risk factor for it." He added that "[t]here is no body of literature that is accepted in the cardiac field that says that stress is a risk factor for coronary artery disease." When confronted with § 9-503, Dr. Wasserman made clear that he rejected the premise of the statute that "being a policeman or fireman contributes to the development of the coronary artery disease." It was irrelevant, he said, what a police officer's duties were; stress simply did not cause heart disease. Indeed, Dr. Wasserman asserted that, even if Shankle had none of the risk factors he described, he still would be of the view that there was no connection between Shankle's occupation and his heart disease.

Prior to trial in the judicial review action, Shankle moved in limine to exclude Dr. Wasserman's video-taped deposition testimony. Wasserman, he declared, rejected outright the presumption created by the Legislature, and, quoting from Stephens v. Workmen's Comp. Appeals Bd., 20 Cal.App.3d 461, 467, 97 Cal.Rptr. 713 (1971), which dealt with a comparable California statute, he urged that "[i]t is impermissible for a compensation carrier to `repeal' this legislation, wiping out the presumption created by [the statute] by seeking out a doctor whose beliefs preclude its possible application." Such testimony, he added, would create confusion in the minds of the jurors, who would hear from the court about the legislative presumption and hear from Dr. Wasserman that there was no medical basis for the presumption, and that the testimony should therefore be excluded under Maryland Rule 5-403. Though acknowledging that Dr. Wasserman does not believe occupational stress is associated with heart disease, defense counsel complained that, unless Dr. Wasserman was permitted to express that opinion, the legislative presumption, which this Court held was rebuttable, would become incapable of being rebutted and would assume the status of strict liability.

Relying, in part, on our conclusion in Franch v. Ankney, 341 Md. 350, 365, 670 A.2d 951, 958 (1996) that trial judges may strike expert opinions based on an incorrect interpretation of Maryland law, the court granted Shankle's motion and excluded Dr. Wasserman's testimony. As Wasserman was the city's only medical witness, the exclusion left the city without any evidence to rebut the statutory presumption of compensability and, accordingly, the court granted summary judgment for the claimant. The city appealed, and, as noted, the Court of Special Appeals affirmed. Shankle, supra, 136 Md.App. 339, 765 A.2d 1008. We shall also affirm.

DISCUSSION

As we made clear in Montgomery Co. Fire Bd. v. Fisher, 298 Md. 245, 259, 468 A.2d 625, 632 (1983) and Lovellette v. Mayor and City Council of City of Baltimore, 297 Md. 271, 284, 465 A.2d 1141, 1148 (1983), and in some earlier cases cited in those decisions, LE § 9-503 constitutes a legislative determination that there is a correlation between job stress and heart disease with respect to fire fighters and police officers.² In furtherance of that determination, the Legislature has created a presumption of compensability when a fire fighter or police officer contracts heart disease. In Lovellette, supra, 297 Md. at 284, 465 A.2d at 1148, which dealt with a comparable...