Mayor and City Council of Baltimore v. Schwing

• Court: Maryland Supreme Court
• Writing for the Court: Argued before BELL; WILNER; Concurring opinion by RAKER, J., in which RODOWSKY; RAKER; RODOWSKY
• Citation: Mayor and City Council of Baltimore v. Schwing, 717 A.2d 919, 351 Md. 178 (Md. 1997)
• Decision Date: 01 September 1997
• Docket Number: No. 83,83
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE v. Joseph Charles SCHWING, Jr. ,

Page 178

351 Md. 178

717 A.2d 919

MAYOR AND CITY COUNCIL OF BALTIMORE v. Joseph Charles SCHWING, Jr.

No. 83, Sept. Term, 1997.

Court of Appeals of Maryland.

Sept. 16, 1998.

Amaza S. Reid, Asst. Solicitor, Herbert Burgunder, Jr., Principal Counsel (Otho M. Thompson, City Solicitor; Frank C. Derr, Deputy City Solicitor, all on brief), Baltimore, for petitioner.

Harvey Greenberg (Law Offices of Harvey Greenberg), Towson, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ.

WILNER, Judge.

This case arises from an attempt by Joseph Schwing, a Baltimore City firefighter, to recover workers' compensation benefits for a disablement arising from his cardiovascular disease, which he contends qualifies as a compensable occupational disease under Maryland Code, §§ 9-101(g) and 9-502 of the Labor and Employment Article (1991 Repl. Vol). Baltimore City opposed his effort, principally on limitations grounds. We shall direct that the Workers' Compensation Commission conduct further proceedings with respect to Mr. Schwing's March, 1994 claim. To reach that result, we shall revisit and overrule our holding in Waskiewicz v. General Motors Corp., 342 Md. 699, 679 A.2d 1094 (1996).

To understand the issues raised in this case, it is necessary, at the outset, to review briefly some of the statutes governing compensation for occupational diseases. We start with the definition of "occupational disease"set forth in § 9-101(g): an occupational disease is "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." The word "incapacitated" is not defined in the statute.

The right to compensation for an occupational disease is provided for in § 9-502. Section 9-502(c) requires an employer, generally, to provide compensation to a covered employee "for disability of the covered employee resulting from an occupational disease." (Emphasis added). Section 9-502(d) provides an exception to that liability, however, intended to assure that the occupational disease for which compensation is claimed really did arise from the employment by the employer sought to be held liable. The employer is liable only if:

"(1) the occupational disease that caused the death or disability:

(i) is due to the nature of an employment in which 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; 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 of the covered employee."

(Emphasis added.)

The term "disability" is not defined, in either the general definition section (§ 9-101) or in § 9-502. For purposes of § 9-502(d), "disablement" is defined as "the event of a covered employee becoming partially or totally incapacitated: (1) because of an occupational disease; and (2) from performing the work of the covered employee in the last occupation in which the covered employee was injuriously exposed to the hazards of the occupational disease." § 9-502(a). The only place in § 9-502 that the defined term "disablement" appears is in § 9-502(d)(1).

The limitations of § 9-502(d) are modified to some extent by § 9-503. Section 9-503(a) provides, in relevant part, that a paid firefighter employed by a county "is presumed to have an occupational disease that was suffered in the line of duty and is compensable under this title" if the individual has "heart disease" and that heart disease results in partial or total disability or death. The issues raisable under § 9-502(d) may still be raised, of course, with respect to a firefighter having a heart disease, but, in light of the presumption in § 9-503, the employer has a heavy burden of producing sufficient evidence to persuade the Commission and any reviewing court that the heart disease did not arise from an occupational disease. Montgomery Co. Fire Bd. v. Fisher, 298 Md. 245, 468 A.2d 625 (1983).

Those are the principal substantive statutes, defining and limiting the right to compensation for occupational disease. The statutes most particularly at issue here are §§ 9-711 and 9-736, setting forth certain time requirements for filing new claims and requests to reopen and modify adjudicated claims. Section 9-711 requires that, if a covered employee suffers "a disablement" as a result of an occupational disease, the employee must file a claim with the Commission within two years after the date (1) of disablement, or (2) when the employee first had actual knowledge that the disablement was caused by the employment. Unlike in § 9-502, neither the term "disablement" nor the term "date of disablement" is defined in, or for the purpose of, § 9-711. Disablement has been held to be the equivalent of incapacitation. Helinski v. C & P Telephone Co., 108 Md.App. 461, 471, 672 A.2d 155, 160 (1996). ¹ Section 9-736 gives the Commission broad continuing jurisdiction to terminate or adjust compensation payments if an aggravation, diminution, or termination of disability takes place or is discovered "after the rate of compensation is set." Section 9-736(b)(3), however, provides, with an exception not relevant here, that "the Commission may not modify an award unless the modification is applied for within 5 years after the last compensation payment."

In essence, the admixture of these statutes requires that a covered employee seeking compensation for an occupational disease (1) establish, through evidence or, if applicable, through the presumption created in § 9-503, that he or she has a compensable occupational disease, (2) file a claim with the Commission within the two-year period set forth in § 9-711, and (3) if the employee seeks to reopen a claim because of an aggravation of disability, apply for a modification within the five-year period established in § 9-736(b)(3). With this background, we may turn to the facts of this case.

PROCEDURAL HISTORY

Joseph Schwing became a firefighter for Baltimore City in 1963. On December 1, 1982, at the age of 42, he experienced a 15-minute bout of chest pains. He initially treated the problem with aspirin, but the next day he was admitted to Franklin Square Hospital. While there, he again developed chest pain, accompanied by nausea, and was diagnosed as having had a non-transmural myocardial infarction. His cardiologist, Dr. Rudikoff's, impression was "Coronary artery disease, S/P posterior wall and nontransmural inferior wall MI 12-2-82, dysnea, class 2." Mr. Schwing was released from the hospital on December 14, 1982, and returned to work on or about February 6, 1983. He was first placed on light duty, but eventually he resumed his full duties.

In July, 1983, Mr. Schwing returned to Franklin Square for a cardiac catheterization which, according to Dr. Rudikoff, "showed a 70% lesion of a small circumflex marginal but only minor disease in the remainder of the coronary tree except for a small right posterior descending. [The] large right posterior descending circumflex and LAD [left anterior descending] were all normal." Due to the catheterization, Schwing was off from work from July 12 to July 15, 1983. No surgery was deemed necessary, and Schwing lost no other time from work. In accordance with the collective bargaining agreement between the City and the firefighters' union, Schwing continued to receive his regular salary during the period he was off from work, and all of his medical expenses were paid through a Blue Cross/Blue Shield policy provided by the City as part of Schwing's compensation package.

On May 23, 1983--prior to the catheterization--Schwing filed a claim for worker's compensation benefits due to his heart attack. We shall refer to that claim as Claim A. Schwing asserted that December 3 was the first day he was unable to work and that he performed no work during his "period of disability." The City impleaded the Subsequent Injury Fund and filed a number of Issues, among them being whether Schwing was "disabled from performing his work and did he incur loss of wages," what percentage, if any, of his "alleged disease, condition or impairment, pre-existed [his] present disease, condition or impairment," and whether his disease, condition, or impairment was attributable to and was incurred in Schwing's employment. On June 21, the Subsequent Injury Fund also filed Issues, including whether Schwing sustained any compensable occupational disease, what the date of disablement was, and what portion of Schwing's alleged disability was due to the alleged occupational disease and what portion was due to any previous permanent impairment. Contemporaneously with its filing of Issues, the Fund informed the Commission and counsel that it had no information regarding any preexisting impairment for which the Fund might be liable and, unless medical records and reports were submitted, it would be necessary to have live medical testimony.

The Commission responded immediately. On June 21--the same day it received the Fund's communication--it sent a Notice to all parties requiring that certain documents and information be supplied to the Fund within 20 days and advising that the case would not be scheduled for a hearing until the parties filed a stipulation (1) that the information had been supplied, (2) stating an estimate of the time necessary to try the case, and (3) stating the number of witnesses to be called. It is not clear whether any of the information sought by the Fund was supplied; nor does it appear that the required stipulation was filed. It is clear that no...