Maryland Workers’ Compensation benefits are available for employees who suffer a disablement as a result of an occupational disease. Occupational diseases develop over an extended period of time and are due to prolonged exposure to hazards that are unique to a particular type of employment. Usually, a compensable occupational disease will involve some sort of physical ailment; however, it is possible that certain psychological, emotional and stress-related diseases could also warrant compensation. In contested cases, a hearing is held and the Commissioner determines whether a compensable occupation disease exists.
As is the case with accidental personal injuries, the burden of proof is generally on the injured worker who is seeking compensation for an occupational disease. In other words, the burden is on the Claimant to show that the occupational disease arose out of and occurred during the course of the individual’s employment. Unlike accidental personal injuries, however, an occupational disease may take years to emerge. Therefore, it is quite possible that an employee will incur an occupation disease years before the effects of the disease actually surface; in some cases, an individual may even work multiple different jobs in the interim.
Where an employee works numerous jobs between the inception of the disease and the subsequent disablement, the Workers’ Compensation Commission must determine which of the previous employers is liable. This is where the concept of “last injurious exposure” comes into play. In short, the employer responsible for workers’ compensation benefits is the employer that the employee was working for at the time of the last injurious exposure to the cause of the occupational disease. It does not matter if the actual date of disablement is much later. Rather, the crux of the inquiry focuses on when, and for whom, the Claimant was working when he or she was last injuriously exposed to the hazard which caused the disease.
Occupational disease claims can be more complex and may require more litigation when compared to other types of comp cases. For this reason, among others, it is recommended that a lawyer’s representation be obtained prior to filing an occupational disease claim. Also, there are certain time deadlines that must be met for such a case to go forward; thus, it is important to seek legal advice as soon as one has reason to believe that they may have a claim.
Hearing loss is one example of a potentially compensable occupational disease. Unlike other types of occupational disease, however, an individual is not required to be disabled for an occupational deafness claim to stand. Compensable hearing loss may develop over a long period of time, such as when a factory worker is exposed to loud noise for a prolonged period, or may derive from a single incident, such as a sudden loud bang at the workplace.
The burden is on a Claimant to demonstrate that his/her hearing loss is occupationally related. The law mandates that audiometric testing be conducted so that a Commissioner can assess the extent of loss. If it is shown that the hearing loss is in any way causally related to the employment, then the employer is presumed to be “liable for the full extent of the occupational deafness.” However, an employer may rebut this presumption with competent evidence that establishes the extent of the deafness that existed before the employee was exposed to the harmful noise in the employment of the employer.
A critical concept available to certain kinds of employees is known in the legal world as “presumptions.” A presumption simply means that certain diseases are “presumed” to be employment related for purposes of workers’ comp benefits. Generally, the burden of proof in comp cases is on the Claimant to prove that his/her employment caused his/her disability. Where there is a presumption, however, the burden of proof shifts to the insurance company/employer to prove that an employee’s disease is not occupationally related. This is difficult to do and therefore presumptions can be very valuable to an injured worker.
One way an insurer contests presumptions is through expert testimony. However, an injured worker also has the ability to call an expert to testify and dispute the insurer’s expert—a workers’ comp attorney could be useful in this regard.
Below are a few examples of certain occupational diseases that carry a legally recognized “presumption” in Maryland.
Heart Complications in Public Safety Employees
Police, firefighters and certain other public safety employees, including some correctional officers, who suffer from heart complications like hypertension and heart disease are entitled to a presumption in Maryland that their ailment is causally related to their employment. In other words, it is presumed that their employment is the cause of the disease, and the burden is on the insurance company to prove that it is not.
Lung Disease & Cancer in Firefighters
Another presumption in MD comp law pertains to lung disease and certain forms of cancer that develop in firefighters. It should be noted that the law mandates that certain timing requirements be met for these claims. Also, there are differing rules for volunteer firefighters.
For cancer claims in particular, it is recommended that legal representation be obtained. Because it is can be hard to pinpoint the precise cause of cancer in light of different variables and possibilities, these types of cases are often vigorously contested by the insurance company. In this context, a seasoned attorney may be invaluable.
Lyme Disease in Natural Resource/Park Employees
A paid law enforcement employee of the Department of Natural Resources and a park police officer of the Maryland-National Capital Park and Planning Commission is presumed to have a compensable occupational disease if he/she incurs lyme disease as a result of their employment. It should be noted that the law mandates that certain timing requirements be met for these claims. Additionally, an employee of the Maryland-National Capital Park and Planning Commission other than a park police officer may also be presumed to have an occupational disease if he/she incurs lyme disease as a result of their employment and certain timing requirements are met.