In re Shindle
| Docket Number | 976-2022 |
| Decision Date | 02 August 2023 |
| Parties | IN THE MATTER OF CHARLES E. SHINDLE |
| Court | Court of Special Appeals of Maryland |
IN THE APPELLATE COURT OF MARYLAND [*]
Friedman, Ripken, Eyler, Deborah S., (Senior Judge, Specially Assigned) JJ.
Before the Workers' Compensation Commission ("the Commission"), Charles Shindle, the appellee, filed a claim for benefits based on an occupational disease. He alleged that as a result of working as a firefighter for the appellant, Washington County Volunteer Fire and Rescue Association ("the Association"), a position from which he had retired, he contracted throat cancer. Following a hearing, the Commission disallowed the claim. Mr. Shindle filed a petition for judicial review in the Circuit Court for Washington County. The matter was tried before a jury, which found in Mr. Shindle's favor.
The Association noted this appeal, posing three questions, which we have rephrased slightly:
For the following reasons, we shall affirm the judgment of the circuit court.
For roughly 30 years, between 1953 and sometime in the 1980s, Mr Shindle worked as a volunteer firefighter for the Maugansville Volunteer Fire Department, a division of the Association. In June 2017, at age 82, he was diagnosed with squamous cell carcinoma of his right tonsil, a type of throat cancer. He underwent a tonsillectomy followed by chemotherapy and radiation. Two years later, he filed an occupational disease claim with the Commission, alleging that his throat cancer was caused by his work as a volunteer firefighter and that on June 20, 2017, he became temporarily disabled due to that disease. The Commission held a hearing at which Mr. Shindle testified. Both parties submitted written reports prepared by their medical experts.
The Commission issued an order deciding two issues. First, it ruled that the statutory presumption that firefighters, including volunteer firefighters, who develop certain cancers, including throat cancer, suffer from a compensable occupational disease did not apply because as of his date of disablement Mr. Shindle no longer was working as a volunteer firefighter.[1] Second, it ruled that Mr. Shindle "did not sustain an occupational disease of throat cancer arising out [of] and in the course of employment[.]" As a consequence of its rulings, the Commission disallowed Mr. Shindle's claim. A petition for rehearing was denied.
Mr. Shindle filed a complaint for an essentially de novo review of the Commission's decision and prayed a jury trial.[2] The Association moved in limine to preclude the testimony of Jonathan Gitter, M.D., Mr. Shindle's medical expert, on the ground that he lacked a "legally sufficient factual basis" to support his opinions that Mr. Shindle's throat cancer was causally related to his employment and was inherent in the nature of the occupation of a volunteer firefighter. It attached to its motion a transcript of Dr. Gitter's de bene esse deposition. Simultaneously, the Association moved for summary judgment on the ground that, without Dr. Gitter's testimony, Mr. Shindle could not satisfy his burden to produce evidence that his throat cancer arose from his employment and was inherent in the nature of his occupation.[3]
The court took up both motions on the morning of trial, June 7, 2022. After hearing argument, the court reserved ruling until it had an opportunity to hear Dr. Gitter's video deposition testimony.
Mr. Shindle testified that he began working as a volunteer firefighter with the Maugansville Volunteer Fire Department in 1953, when he was 16 years old. Beginning in 1966, he also worked as an electrician. As a firefighter, he rose through the ranks to become chief of the department. He responded to his last emergency call in the 1980s but could not recall the exact date or year. In the 1950s and 1960s, Mr. Shindle responded to approximately 100 calls per year. By the 1980s, he routinely was responding to 250 calls per year.
In his early years with the department, Mr. Shindle and the other volunteer firefighters shared a "canister type of breathing . . . apparatus[.]" There were not enough canisters for all the firefighters. Mr. Shindle used them when they were available. The face masks attached to the apparatuses were not fitted to individual firefighters. In the late 1970s, the department switched to self-contained breathing apparatuses with oxygen tanks. The firefighters continued to share the apparatuses, however, and the face masks remained unfitted. Mr. Shindle recalled that he could "smell smoke through the face piece[.]" He explained that a firefighter would wear the apparatus when fighting an active fire, but routinely would remove it during the "overhaul processes," which included extinguishing remaining hot spots and the preliminary investigation into the cause of the fire.
As noted, Mr. Shindle was diagnosed with throat cancer in 2017. He did not have a family history of cancer. He had smoked cigarettes for four years while serving in the army in the 1950s and for a few years thereafter. He had not smoked since then.
Dr. Gitter, a board-certified internist, was accepted without objection as an expert in the field of internal medicine. On September 12, 2019, he performed an "independent medical examination" of Mr. Shindle. He reviewed Mr. Shindle's medical records from his primary care physician, the report of a biopsy, and a PET scan report. He explained that Mr. Shindle had been diagnosed with squamous cell carcinoma of the right tonsil that was P16 positive, which means that he previously had contracted the human papillomavirus ("HPV").
Dr. Gitter testified that cancer itself is an "abnormal growth of . . . cells." The development of any cancer is always "multifactorial," meaning that different processes cause "the DNA . . . to deteriorate and the cells, at some point, [to] start growing out of control." Dr. Gitter opined that Mr. Shindle's throat cancer was "causally related to his employment as a volunteer firefighter[.]" Specifically, "the exposures" Mr. Shindle experienced while working at fire scenes "were contributors to his . . . development . . . of that cancer" because they "increased the chance that he would develop . . . that cancer." In Dr. Gitter's opinion, working as a firefighter is a risk factor for developing throat cancer, generally, and was a risk factor for Mr. Shindle, specifically.
Mr. Shindle's exposure to HPV also was a risk factor for developing throat cancer (and other cancers). According to Dr. Gitter, although individuals exposed to HPV are more likely to develop throat cancer than those not exposed to it, not every person with an HPV exposure will develop throat cancer. Likewise, Mr. Shindle's exposure to carcinogens during his work as a volunteer firefighter increased his risk of developing throat cancer and "more likely than not" was a "contributing factor" in his eventual development of that disease. Moreover, "if someone has more than . . . one risk factor for a disease," they are "more likely" to develop that disease.
On cross-examination, Dr. Gitter was asked about his knowledge of Mr. Shindle's duties as a volunteer firefighter. Dr. Gitter could not recount the number of calls Mr. Shindle responded to each year but was aware that Mr. Shindle was "very active" and "did . . . all of the normal firefighting duties." He recalled that Mr. Shindle informed him that in the "earlier years . . . they weren't really using the respirators on a . . . very regular basis[.]" Dr. Gitter knew that Mr. Shindle "attended a lot of . . . fires" for "many years[.]" When asked, hypothetically, whether, had Mr. Shindle told him that he only worked a limited schedule as a volunteer firefighter, he would have qualified his opinion, Dr. Gitter declined to accept the hypothetical because Mr. Shindle in fact had "worked frequently throughout the week[.]"
Dr. Gitter did not know when Mr. Shindle stopped responding to calls or how much time had passed between his "last call and his diagnosis . . . with cancer." He opined that it was common for "many years" to pass after exposure to a carcinogen and before a diagnosis of cancer. Dr. Gitter estimated a "ballpark" range of between 15 and 30 years. Consequently, if he knew that Mr. Shindle had not responded to fires for many years, that "wouldn't change [his] opinion that the exposures played a role."
When asked if a "risk factor is different than a cause[,]" Dr. Gitter replied:
[T]o some extent it's a matter of semantics. Because there are many conditions . . . where the causation is multifactorial. So, the more risk factors you have the more likely you are to develop that . . . condition. High blood pressure[']s another one. . . that's . . . [a] similar thing. There can be a family history, there can be, you know, there can be stresses[,] there can be . . . other things in somebody's life that could . . . contribute to it. But so, there's multiple risk factors and a lot of times people have one or two of the risk factors and they never get it and other times, you know, . . . they have three or four risk factors, and they are more likely to get it.
Dr Gitter added that there was a "strong association" between HPV and throat cancer, between...
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