Occupational Diseases

• Jurisdiction: Maryland

V. OCCUPATIONAL DISEASES

A. In General

In addition to accidental personal injuries, the statute covers certain occupational diseases if the worker suffers a disablement or dies as a result of the disease.

"Disablement" in occupational disease cases is not easy to define. The statute defines it as the event of becoming partially or totally incapacitated because of an occupational disease from performing the work in the last occupation in which the employee was injuriously exposed to the hazards of the disease.¹⁴⁵

Loss of time from work usually constitutes a disablement.¹⁴⁶ But if the lost time amounted to only a few days and the claimant then returned to regular work without difficulty, this might not constitute a disablement.¹⁴⁷

Moreover, an employee does not have a disablement if the employee is capable of performing work which is reasonably analogous to the last occupation in which the employee was injuriously exposed.¹⁴⁸

Nevertheless, if the employee is performing the same job as the employee's last occupation but due to an occupational disease, the employee is unable to perform the job as well as he or she did previously, the employee is entitled to compensation, even though he or she may have sustained no loss of wages.¹⁴⁹

B. Compensation Benefits

The date of disablement in occupational disease cases is essentially the equivalent of the date of accident in accidental injury cases, and the benefits payable are those in effect as of that date.¹⁵⁰

Nevertheless, the average weekly wage is based on the amount of the worker's earnings as of the date of his or her last injurious exposure to the hazards of the disease and not the date of disablement.¹⁵¹

C. The Responsible Employer and Insurer

When the worker has been employed by a succession of different employers, each of whom exposed the claimant to hazards that could have been a contributory cause of the disease, the employer which is liable for payment of compensation is the one in whose employment the claimant was last injuriously exposed before the date of disablement. The insurance carrier responsible is the one that covered the employer on the date of that last injurious exposure.¹⁵²

The last injurious exposure rule does not apply in cases of occupational deafness. In those cases, liability is shared equally among successive employers and their insurers, or apportioned if the evidence establishes the particular amount of deafness caused by exposure to noise in each employment.¹⁵³

In the absence of a disablement, an employer and insurer are not liable even if the worker was diagnosed as having the occupational disease and was receiving treatment for it.¹⁵⁴

If an employer exposes the worker to the hazards of an occupational disease after the worker already has a disablement from that disease due to a prior employment, then that employer may be liable for an exacerbation or recurrence of the existing disability. But if the new disablement is merely due to the natural progression of the disease, then the previous employer and insurer remain liable for payment of compensation benefits and the current employer will not be liable.¹⁵⁵

D. Compensability

A compensable occupational disease is some ailment, disorder, or illness that is the expectable result of working under conditions naturally inherent in and inseparable from the employment, and is usually slow and insidious in its approach.¹⁵⁶ As defined in LAB. & Empl. § 9-502(d), an employer is not liable for an occupational disease unless:

Such disease is due to the nature of an employment in which the hazards of the disease actually exist, and it may reasonably be concluded, based on the weight of the evidence, that the disease was incurred as a result of the employment; or
The manifestations of the disease are consistent with those known to result from exposure to a given physical, biological, or chemical agent attributable to the type of employment, and it may reasonably be concluded, based on the weight of the evidence, that the disease was incurred as a result of the employment.¹⁵⁷

1. Nature of the employment

To be compensable, an illness must be due to a hazard inherent in the nature of the worker's employment or profession in general rather than a hazard of the particular job the worker was performing.¹⁵⁸ A "hazard" is a risk factor, and it is the risk factors for the disease, not the disease itself, that must be inherent in the nature of the employment. Baltimore County v. Quinlan, 466 Md. 1, 215 A.3d 282 (2019).

? Both sides should determine whether other employees doing similar work developed the same condition, since this may be relevant in establishing whether the condition was due to the nature of the employment.

2. Repetitive trauma

In Lettering Unlimited v. Guy,¹⁵⁹ the Supreme Court of Maryland stated that while ordinary or usual job-related repetitive trauma cannot predicate a claim for accidental injury, it might form the basis for an occupational disease claim.

In Lettering, the Supreme Court of Maryland held that the trier of fact could find an occupational disease compensable where the claimant's longest continuous exposure to the hazards of the disease lasted two weeks.

In LeCompte v. United Parcel Serv., Inc.,¹⁶⁰ the Appellate Court of Maryland (formerly the Court of Special Appeals) held as a matter of law that an injurious exposure of only one week was not sufficient to establish a compensable occupational disease because in such a case the amount of repetitive trauma is not sufficient.

E. Presumption in Favor of Police Officers, Fire Fighters, and Members of Rescue Squads

Under LAB. & EMPL. § 9-503, any impairment of health of police officers, certain correctional officers, fire fighters, or members of a rescue squad caused by heart disease or hypertension (or additionally, in cases of fire fighters and members of rescue squads, lung disease and certain cancers) is presumed to be compensable or to have been suffered in the line of duty and as a result of employment.¹⁶¹

The presumption applies even in cases where the employee...