Smith v. Howard County
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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1367 September Term, 2006 OWEN E. SMITH, JR. v. HOWARD COUNTY, MARYLAND Sharer , Woodward, Kenn ey, James A, III.., (R etired, specially assigned), JJ. Opinion by Kenney, J. Filed: November 6, 2007 In June of 2004, appellant, Owen E. Smith, Jr., a retired 26-year veteran of the Howard County Po lice Department, filed a claim with the Workers Compensation Commission (the Comm ission ). Appellee , Howa rd Coun ty, 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 County. At the close of ev idence, the c ircuit court granted Howard County s motion for judgment. On appeal, w e address th e followin g question s: I. Was sufficient evidence presented to the jury to defeat Howa rd Coun ty s motion for judgmen t? II. Can a claimant, who prevailed before the Commission on an uncontes ted claim because of the emplo yer s late filing, establish a prima fa cie case for worke r s compensation before a jury in the circuit court based solely on the claimant s victory before the Commission? For the fo llowing rea sons, we s hall affirm th e judgme nt of the circu it court. FACTUAL AND PROCEDURAL HISTORY On October 14, 1975, Smith began his service with the Howard County Police Departm ent. 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 injurie s 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 -1- routinely carried on his pers on. On the claim form, Smith wrote: Repeated entering/exiting of police veh icle in perfor mance o f duties, we aring gun belt, ballistic vest, etc. Ov er 26.3 years averaged 800-1 000 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: After due consideration of the ab ove entitled c ase, it is determined that the claimant sustained an accidental injury or occupational disease/illness as defined in Th e 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, theref ore, this d ay, 08/06/2004 by the Workers Compensation Commission ORDERED that the claim for compensation filed with th is Comm ission 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 H oward County s motion. Judgment was entered on August 23, 2006. Smith filed a notice of appeal on that date. DISCUSSION 1 Other than the claim form, no evidence was submitted to the Commission. -2- I. The Burden of Production at Trial Smith claims that he suffered an occupational disease during the course of his employme nt. 2 Under Maryland Code Annotated (1991, 1999 Repl. Vol.), § 9-502(d)(1) of the Labor an d Emplo yment Article ( LE ), an employer is liab le to his or her employees for an occu pational dise ase that: (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 man ifestations tha t are consisten t with those k nown to result from exp osure to a biological, chemical, or physical agent that is attributable to th e type of em ployment in w hich the covered employee was employed before the date of disable ment[ .] LE § 9-101(g) defi nes a n occup ation al dis ease as a disease contract ed by a covered employee: (1) as the resu lt of and in the course of employment; and (2) that causes the covered employee to become temporarily or p ermanen tly, partially or totally inc apacita ted. 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 prof essio n or industry, 2 In its order, the Commission stated that the claimant sustained an accidental injury or occupational disease/illness . . . . (Emphasis added.) In order to establish an accidental injury, Smith w ould have to demon strate that, on a particular date, he suffered a specif ic injury. See Waters v. Pleasant Manor Nursing Home, 361 Md. 82, 98, 760 A.2d 663 (2000) ( [T]he date of determination for accidental injuries is the date of occurrence of the injury and the inju ry is one that is unusual or un expected. ). Nothing in th e record suggests that Smith sustained an accide ntal injury. He d id not a llege an a ccid enta l inju ry before the circuit court, and does not do so on appeal. -3- and it is the usual result or concomitant. If, therefore, a disease is not a customar y or natural resu lt of th e pro fess ion o r 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. Ap p. 651, 654, 602 A .2d 261 (1992). To satisfy the burden of pro duction , a party must establish some minim al evide nce. 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, possib ility, or conje cture is requir ed. McQ uay v. Sch ertle, 126 Md. App. 556, 569, 730 A.2d 71 4 (1999) (c itation omitted ). To preva il on his claim , Smith was, therefore, required to prod uce som e evide nce, 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 of that work; and (3) that as a result, he was incapacitated as of October 5, 2002, the date of his alleged disablement. See Lub y Chevro let, Inc. v. Gerst, 112 M d. App. 17 7, 183, 684 A.2d 86 8 (1996); see also Richard R. Gilbert and Robert L. Hum phreys, Jr., Ma ryland Work ers Com pensation Handbook, § 8.1, at 164 (1993). When Howard County moved for judgment, the parties arguments were prim arily directed to whether Smith satisfied his burden of producing evidence that he was -4- incap acitated . 3 Smith con tended no t only that the evid ence presented to the jury demonstrated that he was incapacitated, but that his victory before the Commission constituted a prima fac ie case. Even if minimal e vidence w as produc ed 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: Disab lement 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 dutie s of a p atrol of ficer as of Oc tober 5 , 2002. See Waters v. Pleasant Manor Nursing Home, 361 Md. 82, 98 , 760 A.2d 663 (2000) ( the date of injury for determining benefits for an o ccupa tional di sease is t he date of disa bleme nt. ). In Helinski v. C & P Telephone Co., 108 Md. App. 461, 472, 672 A.2d 155 (1996), we stated: 3 Howard County also argued that Smith failed to demonstrate that his injuries were common hazards affecting police officers and that Smith presented no evidence that [his injuries were] inherent [to] the job of a police officer. The parties arguments, however, were focused on whether Smith demonstrated that he was incapacitated under LE § 9-502. -5- An incapacity to work in one set of conditions a pplicable to a particular job does not n ecessarily indicate or eq uate 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 occup ation is in fact fo reclose d to the c laiman t. If, indeed, the claimant is able to continue to perform reasonably analogous work within the same occupational classification[,] . . . he is not incapacitated from pe rforming his work in the last occu pation. (Citatio n omitte d.) At trial, Smith relied on his testimo ny and the tap ed depos ition of his orth opedic 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 visite d Dr. D rapkin on Au gust 18 , 2004. D r. 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 improv ed if he w ants to do this job at all. Dr. Drapkin diagnosed Smith as suffering from inflamation of both of his hips and an internal derang emen t to his rig ht knee . -6- On direct examination, Smith testified that a patrol officer s job includes various tasks: The normal duties are you go to your vehicle, obvious ly. You start your patrol afte r you call in servic e. 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 establish ment che cks, traffic enforcem ent, 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 com es in at th e first line of polic ing. [COU NSEL]: So, do you sp end mos t of the day in and out of your vehicle? [SMITH]: Yes. [COU NSEL]: How many times, would you say, an average sort of day, you re in and out of the ve hicle, of the car? [SMITH ]: You d have to average it out by how m uch traffic the individual office r does. I f you make a traffic stop to run a citation, you norma lly get in and out of the car for each incident four times. . . . If you do a foot patrol in a business section, you normally get out o nce, do your foo t patrol, c ome back, ge t in your car. If you get a c all for a specific complaint, there s no way of knowing how many times you re go ing to be getting in an out of the car. Because you m ay have to return to your car, call somebody on the radio if you don t have a portable; in preportable days, we had to do that. Get paperwork out of your vehicle and respo nd back to the comp lainant; you may have to go back to your v ehicle to get equipment ou t, if you re handling something like a burglary or theft, to process the scene or anything like that. So it s kind of hard to say . . . how many times they would get in the car. -7- Smith also testified that while he perform ed the duties of a patrol off icer, his ballistics vest and the equipment on his gun belt added twenty to twenty-five pounds of total weight. Dr. Drapkin s testimony that Smith would need treatment to continue performing the duties of a patrol officer does not indicate that Smith could not perform the duties of a patrol officer on Oc tober 5 , 2002. Even if S mith wa s having m ore difficu lty getting in and out of the car without the pain, no evidence demons trates that he av oided suc h activity partially or complete ly. [I]t has been said that an e mployee is no t incapacitated within the intent of the law if . . . though injured, [he] still has the capacity, the ability to, and does con tinue to perform his regular work, for which he was employed . . . . Belschner v. Anchor Post Products, Inc., 227 Md. 89, 93 , 175 A.2d 419 (1961) (citation omitted). II. Victory before the Commission Smith argues that, even if he did not satisfy his bu rden of p roduction b efore the c ircuit court, his victory before the Commission constitutes a prima fac ie case of an occupational disease. Under the circumstances of this case, we disagree. After the Commission issues an order, [a] party dissatisfied by the action of the Commission may seek rev iew in a circ uit court by either proceeding on the record made before the Commission . . . or [by] receiv[ing ] a new evidentiary hearing and decision before a jury . . . . Baltimor e Coun ty v. Kelly, 391 M d. 64, 891 A .2d 1103 (2006); see also Board of Educatio n for Mo ntgome ry Coun ty v. Spradlin , 161 Md. App. 155, 166-67, 867 A.2d 370 (2005). LE § 9-745 controls the appellate framework: -8- (a) In general. - The proc eedings in a n appeal sh all: (1) be informal and summary; and (2) provide each party a full opportunity to be heard. (b) Presumption and burden of proof. - In each court proceeding under this title: (1) the decision of the Commission is presumed to be prima facie correct; and (2) the party challenging the decision has the burden of proof. (c) Determination by court. - The cou rt shall determine whether the Commission: (1) justly considered all of the facts about the accidental personal injury, occupational disease, or comp ensable hernia; (2) exceeded the powers granted to it under this title; or (3) misconstrued the law an d facts app licable in the case decided. (d) Request for jury trial. - On a motion of any party filed with the clerk of the court in accordance with the practice in civil cases, the court shall submit to a jury any question of fact involved in the case. (e) Disposition. (1) If the court determined that the Commission acted within its powers and correctly construed the law and facts, the court shall confirm the decision of the Commission. (2) If the court determines that the Commission did not act within its powers or did not correctly construe the law and facts, the court shall reverse or modify the decision or remand the case to the Commission for further procee dings. -9- Subsections (c) and (d), respectively, permit the appeal to be heard by either a judge in the circuit court or a jury. Where, as here, a party elects a jury trial, the proceedings are not truly de novo: A true trial de novo [is] described as one in which all of the parties [are] put back at squ are one to begin aga in just as if the adjudication being challenged had never occurred. Acc ordingly, [w]hichever party . . . had the burden of production and the burden of persuasion before the Commission would again have those same burdens before the circuit co urt. An essential trial de novo differs, however, due to the conditions required by [LE] § 9-745(b) that the decision of the Commission be presumed as prima facie correct, and that the burden of proof be placed on the party attacking the decision. Kelly, 391 Md. at 75 n. 4 (quoting Kelly v. Baltimore County , 161 Md. App. 128, 137, 867 A.2d 355 (20 05) (citation omitted)). If the claiman t does not p revail before the Comm ission and e lects to proce ed in circuit court by way of a jury trial, the parties retain their initial burdens of proof and pe rsuasio n. Kelly, 391 Md. at 75 (citation o mitted). For p ractical purp oses, this means that the claimant has the burden of producing a prima fac ie case before the trial court, lest he suffer a directed verdict against him, just as he, as the original proponent, had that same burden before the Commission. General Motors Corp. v. Bark, 79 M d. App . 68, 79, 5 55 A.2 d 542 ( 1989) . If, on the othe r hand, the c laimant prevails before the Commission, the burden of proof, which was borne by the claimant before the Commission, switches to the employer before the circuit court. In such a case, the decision of the Com mission is, ipso facto, the claimant s prima fac ie case . . . . Indeed, the successful claimant, as the non-m oving par ty -10- on appea l, has no burden of production. Kelly, 391 Md. at 75-76 (quoting Bark, 79 Md. App. at 80). T he claim ant can not, ther efore, suffer a summ ary judgm ent (or, p erhaps , a directed verdict at the end of the [employer s] case) against it on the ground that it failed to produce a prima facie case. Spradlin, 161 Md. App. at 197. This switching of burdens, however, is based on the Commission s actual consideration of conflic ting eviden ce as to esse ntial facts or the deduction of permis sible but diverse inferen ces ther efrom . . . . Moore v. Clarke, 171 Md. 39, 45, 187 A. 88 7 (1936); see also Kelly , 391 M d. at 75- 77. It is the Com mission s s olution of s uch conf lict [that] is presumed to be correct, and the party attacking its solution must demons trate why it is erroneou s, if at all. Moore, 171 Md. at 45. But, in the absence of conflicting evidence as to essential facts bein g presented to and resolved b y the Comm ission, there is no presumption of correctness. In such a case, the claimant continues to shoulder the burdens of proof and persuasion as to essential fa cts necessary to supp ort the cl aim. See Kelly , 391 M d. at 76-77; Moore, 171 Md. at 45. In Moore, the Court of Appeals explained: The provision that the decision of the Commission shall be prima facie correct and that the burden of proof is upon the party attacking the same does not mean, therefore, that if no facts are established before the Commission sufficient to su pport its decision, that there is any burden of factual proof on the person attacking it, for the decision of the Commission cannot itself be accepted as the equivalent of facts which do not exist, and, in all cases, whether there is evide nce legally sufficient to support the decision of the Commission, is necessarily a matter of law to be decided by the court as any other question of law -11- would be. Id. at 45. See also, 8 Arth ur Lars on and Lex L arson, Larson s Workers Compensation Law, § 130.06[3][b] (200 6) ( Although claim ants are aided, in some jurisdictions, by presumptions that help to supply the minimum evidence necessary to support an award, they must first establish the facts required to invok e the presumption. ). In this case, due to a late filin g by H owa rd County, Smith s claim was uncontested. The Commission concluded that Smith suffered an occupatio nal disease b ased solely on his written statement, which read: 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 mon th. No c onflicting ev idence as to essential facts was presented to the Commission, and thus n o deductio n of perm issible but diverse inference s [could be made] therefr om. Because no facts [were] established befo re the Com mission su fficient to support its decision that Smith suffered an occupational disease, the circuit court was permitted to grant a motion for judgment against the party that prevailed before the Commission. JUDGMENT AFFIRMED; COSTS TO BE PAID BY APPELLANT. -12-
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