*1
v.
GENERAL MOTORS CORPORATION. TERM,
No. SEPT. 1995. Appeals Maryland. Court of
July 1996. brief) (David Baltimore, MD, Kimmelman, E. Fink David for Petitioner. (Diane Deros, Mason, Ketterman & III F. S.
Joseph Zauner *2 brief) MD, Baltimore, Respondent. on Morgan, C.J.; ELDRIDGE, MURPHY, before and Argued CHASANOW, KARWACKI, BELL, RODOWSKY, RAKER, JJ.
KARWACKI, Judge. Act,
The Maryland Compensation Maryland Workers’ (1991 seq. 9-101 et Employ Code Labor & Repl.Vol.), Act”)1, (hereinafter §in 9-502 for provides ment Article “the are result of an for workers who disabled as a by disease. Such diseases are nature insidious occupational worsening time is continual gradual, over as an ly today We are asked exposed the hazards disease. exposure such continued to hazardous determine whether for a new claim for workplace duties constitutes basis 9-502, exposure meaning benefits within when an existing not cause a new but exacerbates does has already for which the claimed workers’ one that, 9-502, benefits. hold We already claimed benefits for employee who by an disease cannot base a new claim for caused upon injurious exposures which cause a benefits additional disability. or her condition not a new worsening his but I. parties stipulated to this case Circuit Court to the Waskiewicz, and peti-
facts we recite here. Robert claimant case, assembly in this was line worker employed tioner (hereinafter “GM”) for Corporation twenty Motors General (1991), statutory Maryland 1. are to & All references herein Code Labor Article, Employment unless otherwise indicated. 1973, Early employment, developed on his he years. syndrome2 as a of his carpal repetitive bilateral tunnel result assembly surgery motion work on the line. He underwent condition, and filed a claim for workers’ compensation In an order benefits based disease.3 dated (here- April Compensation the Workers’ Commission Commission”) inafter “the found that Mr. Waskiewicz had prey indeed fallen to the disease of It him certain total and syndrome. temporary per- awarded finding on its that he partial disability manent benefits based had of 15% loss of use of both permanent sustained hands.
Mr. Waskiewicz had further treatment for his carpal tunnel 1976, 1983, 1986, syndrome, including surgeries, several *3 Carpal syndrome complex symptoms tunnel is defined as "a 2. tunnel, resulting compression carpal from of the median nerve in the hand, pain burning tingling paresthesias fingers with and or in the and extending sometimes to the elbow.” The Sloane-Dorland Annotated (Richard Sloane, ed.) (1987) Medical-Legal Dictionary p. 689. The Supreme Mississippi provided perhaps descrip Court of a more useful tion, describing carpal syndrome inflammatory tunnel as "an disorder by in which the tendons in the wrist area which are bound down (become ligaments surrounding in a band-like fashion the wrist in use, especially might factory flamed] due to excessive be seen with movement, motion, type job work where one or is done continuous Garan, Inc., 164, (Miss.1980). ly....” Segar v. 388 So.2d If the "bilateral,” syndrome occurring isit in both wrists. “Occupational 9-101(g) disease” is defined in of the Act thus: 3. "(g) Occupational disease.—"Occupational disease” means a disease by employee: contracted a covered (1) employment; the as result and in the course of and (2) temporarily that causes the covered to become or permanently, partially totally incapacitated.” or Early history compensation on in the of workers’ law we described an ailment, disorder, occupational disease as some or illness "which is the expectable working naturally result of under conditions inherent in the therefrom, employment inseparable ordinarily and and is slow and 474, 486, approach.” Knefely, insidious in its 48, Foble v. 176 Md. (1939). Carpal syndrome certainly tunnel meets both the statu- disease, tory description definition as well as our of an appears generally accepted and in the case law to be as an compensable under the Act.
1987,1988, and this case reflect 1989.4 medical records 1987, his continuing aggravation that in result of pain of his Mr. Waskiewicz on carpal syndrome, placed tunnel GM “light heavy lifting. no use of duty” involving power tools Meanwhile, he care treat- continued under the constant 1991, Dr. May ment Dr. surgeon, of his Dennis Franks. to GM certain restrictions on Mr. Wask- Franks recommended duties, motion lifting, repetitive iewicz’swork “no no including physician’s and no use of air the recommenda- guns.” Despite tion, record, unexplained in the GM and for reasons decided job on line in the place requiring Mr. Waskiewicz back result, As a repetitive use of hand tools in a manner. hands, syndrome by in both confirmed carpal tunnel worsened 27, performed February conduction test on 1992. On nerve 1992, 3, to Mr. March Dr. Franks recommended Waskiewicz work; more performed that he not return to doctor 1992, avail, to no be- surgery September apparently but cause Mr. never returned to work. In March Waskiewicz 1994, joint Facts and according “Stipulation Agreed case, “the to the trial in this Agreed judge Issues” submitted carpal a result of [Mr. doctor stated that as Waskiewicz’s] tunnel motion of hands and syndrome, repetitive caused tools, he no power longer engage gainful use of could stipu- employment.” Although specifically stated facts, portray lated briefs to Court parties’ 100% of use of both hands. suffering claimant as loss 25, 1992,
On Mr. Waskiewicz filed the instant claim August March disability beginning He noted on his claim resulting syndrome. he form that this was the workers’ claim *4 trial, Occupational had “this or Disease.” At filed for Accident injured right workplace 4. Waskiewicz also his wrist in a accident in Mr. according carpal syndrome, stipu- to 1988 unrelated tunnel to the judge. lated to the trial We facts submitted cannot determine from pursued compen- record whether Mr. Waskiewicz a successful workers’ injury injury sation claim for that or what extent the caused the later surgeries capacity. parties As the have made no diminished arguments concerning how it his total the incident or relates to current disability, speculate we will not further. however, contrary to the that “the Claimant’s stipulated he syndrome is the disease from which he carpal bilateral tunnel since it was first varying degrees diagnosed has suffered ” early request 1970s.... Mr. Waskiewiez did not file previous carpal syndrome, claim for tunnel reopen permanent partial disability he had last received com- which in 1976. pensation May claim on
The Commission disallowed Mr. Waskiewicz’s 26, 1993, that “the claimant did not sustain an tersely stating out of syndrome arising disease employment alleged and in course of to have occurred ” reasoning The of the Commission is not 3/3/92.... illuminated hearing either of the transcript Commission order, from its glean holding the one-sentence but we regard the Commission did not Mr. Waskiewicz’s condition in 1992 as a new appealed disease. Mr. Waskiewiez the Commission’s decision to the Circuit Court for Baltimore City, judge jury. where the case was tried before a without a judge The trial reversed the Commission in an oral opinion. He reasoned that the 1992 date Mr. Waskiewicz’s most injurious exposure recent to the hazards of the occupational disease, which caused total disability, effectively constituted To compensable event. relate Mr. Waskiewicz’s current exposures condition and most recent back to the first date 1970s, ruled, disablement in partial judge the trial would “unnecessarily create a result in an hardship would unrea- sonable interpretation [§ 9-502].” Special
The Court of the trial Appeals reversed court opinion, agreeing with the Commission that Mr. unreported did not sustain a new disablement in 1992 and Waskiewiez finding his current instead to be an of an aggravation existing disability from 1973. intermediate appellate injurious exposures court noted that continued to hazards of leading aggravation existing resulting disability disease and could not the basis for a be new claim pointed 9-502. The court also out that Mr. could have recovered for his Waskiewiez disability through reopening current 100% and modification *5 claim, limitations five-year of his 1973 but statute of § of claims 9-736 of Act barred reopening found any attempt reopen. to
II. instant is question impression presents The of first case claim, a new rather simply whether workers’ award, existing can be request than a for modification of an injurious to exposure aggrava- based on an additional hazards disability resulting an from an dis- ting existing ease. The is no. Mr. increase in disabil- answer Waskiewicz’s ity syndrome due to from 15% loss of use of both non-compensable hands to loss of use under the 100% is parties’ arguments current scheme. review the statutory We explain holding. within the of the relevant law to our context a. Appeals argues Special
Mr. Waskiewicz that the Court claim of misinterpreted regarded the facts when it first his 25, 1992, to August attempt reopen original claim, found in by barred the statute limitations attempt 9—736(b)(3) Instead, of the Act. contends Mr. Waskiewicz Court, entirely his brief to the 1992 claim is “an new claim this him to totally for a new which caused become exposure disease,” 9- brought disabled due to the to essentially any 502. Mr. asks us hold that Waskiewicz worsening for which injurious compensa- exposure claim, support a new already paid tion been sufficient existing simply a reconsideration claim. GM, naturally, disputes interpretation Mr. Waskiewicz’s and the stipulated company facts law. contends that, worsening of an contrary existing while injurious exposure may support caused an additional original period modification of an award within the limitations 9-736, file claim. right it does not create a a new the Act in relevant provides part: Section 9-502 of Occupational disease—Compensation. “§ 9-502. (a) section, ‘disablement’ ‘Disablement’ defined.—In becoming partially event of a covered means the totally incapacitated: *6 disease; (1) and of an occupational because (2) in employee the work of the covered performing from in the was employee which covered occupation the last occupational to hazards of the dis- injuriously exposed the ease.
(b) employer to and insurer.—Subsec- Scope application of (c) of this to: applies tion section (1) em- employment in whose the covered employer the injuriously exposed to the hazards of the ployee was last disease; occupational
(2) insurer liable for the risk when the covered em- employed by employer, injuriously was last ployee, while to of the disease. exposed the hazards (c) insurer.—Subject to Liability employer and subsec- of (d) provided, tion of this section and as otherwise except and insurer to whom this shall employer applies subsection in with this title to: provide compensation accordance (1) a covered of employee resulting the covered from an dis- employee ease; Mr. compensation,
To bolster his claim that he is entitled interpretation a strained of subsection proposes Waskiewicz (a) 9-502, § merely By which defines “disablement.”5 his account, “[b]y provision, Legislature intended that occupa- whenever an to the hazards of an exposed thereby ‘precluded per- tional disease and he becomes from actually argument 5. Mr. Waskiewicz bases his to this Court on 9- statute, 22(a) predecessor 502's of Article 101. The claim at issue here, his second claim for workers’ syndrome, was filed in after the revision of the Code and the Compensation recodification of the Workers’ Act in Title 9 of the Labor Employment applies we discuss his & Article. The current statute arguments within the context of 9-502. his work in in he forming occupation the last which was ” injuriously exposed,’ he be compensation.’ ‘shall entitled to added.) are Although we not insensitive Mr. (Emphasis find predicament, interpretation we his Waskiewicz’s statute rather disingenuous. misquoted note that Mr. preliminarily
We Waskiewiez he statutory provisions phrase “precluded when uses the work”; performing “partial” from his statute includes “disablement,” such as incapacitation the definition Mr. of use of partial incapacitation 15% loss Waskiewicz’s him which hindered but did “preclude” hands his work. performing
Second, mistakenly language Mr. interprets Waskiewiez (a), “... in the last which the occupation subsection injuriously exposed to the hazards covered was disease,” argue injurious the last *7 disease, occurring to the a exposure hazards of whether before disabling, effectively compen- the disease a or after becomes is an of simply reading sable event. This is incorrect the statute, reading of the which with the language conflicts rest § as well of the parts of 9-502 as other Act. 9-502(a) that under an argues correctly
GM event of occupational from an is the resulting only disablement disease to entitling compensation. Compensation event claimant is 9-502(c) on the basis event singular awarded of the of “... ... employer provide compensa- disablement: an shall in this title to ... employee tion accordance with a covered of ” of the employer employee.... the covered cites of language merely part The Mr. Waskiewiez is the “Disablement,” by plain of the definition “disablement.” of the is defined “event” meaning language, singular as a of becoming partially totally incapacitated or because of an occu- disease, exposures not as a series of to the hazards of pational the same disease. Included within definition of “disable- phrasing indicating exactly employee ment” is what totally ... ... ”: not “partially incapacitated simply from whatsoever, of any specifically work but from performance in the last employee of the covered “the work performing injuriously was employee covered in which the occupation In other disease.” hazards of to the exposed does not “disabled,” employee an words, to found in order be doing virtue precluded by have be from the last incapacitated only anything, but rather must be See him to the disease. exposed which occupation type Co., 587, 592-93, Electric 63 Md.App. Adams v. Western (1985). upon which phrase purpose A.2d clarify that simply his claim is bases Mr. Waskiewicz incapacitation limited scope to a refers disablement was employee in the covered which occupation from “the last injuriously exposed.” after the date of exposure for each new claims
Allowing
(c) meaningless, because
render subsection
would
disablement
“disability.”
event of
compensable
pinpoint
one could never
(b) demonstrates
Moreover,
reading of subsection
a careful
identifying
only has relevance
injurious exposure
that
the “last”
on the date
disablement:
the liable
contributing to the
exposure
the last
injurious exposure is
date of
Once the
onset
disability,
of a
not its exacerbation.6
(b)
assigns liability for
caused
statute
6. Subsection
is,
employer”;
occupational disease to the last “causal
statute,
employment the
employer "in whose
words of the
to the
injuriously exposed
the hazards of the
last
covered
was
rule,”
injurious exposure
Known as “the last
disease.”
language
typically
used when the
9-502 is
the cited
ultimately causing
multiple workplaces
hazards
the same
endured
See, e.g., Lowery
leading
disability.
v.
Co.,
(1984);
Card
Mr. to the hazards Waskiewicz’s itself, if compensable put as a event in occupational disease would lead to untenable outcomes. For exam- practice, into successfully if one ple, theory prevailed, might argue the first claim of contrib- day following each of work uted, worsening disability, to a of the there- slightly, however day. to a claim each by entitling the claimant b. statute, therefore, language Mr. Wask- plain
On 9-502(a) interpretation persuasive. iewicz’s is not More- over, Assembly could not have intended such an General outcome, they reopen provision would not have enacted the §in aggravation found 9-736 of the Act to address the continuing jurisdic- 9-736 existing grants disabilities. Section claims tion over workers’ to the Commission injurious exposure by rather than definition "caused” the disablement aggravated it: injuri- that in disease cases the date of last hold "[W]e effect, exposure disability. ous can never come after the date of In defining ‘injurious exposure’ exposure we are as an that contributed disability—not may to the onset of one that have exacerbated an Card, supra, Md.App. existing disability.” CES at at 338. Special Appeals' reasoning The Court of in CES Card is sound and we adopt it. however, Certainly, exposed 7. if one employee’s history, the hazards of the work single employer party then that will be the liable 9-502. case, therefore, compensation, if indeed Waskiewicz is entitled be, question, employer. GM would without the liable
709 if award compensation aof workers’ for modification provides rate of original occurs after the aof aggravation or terminated: has been set compensation juris- continuing powers and Readjustment; “§ 9-736. diction; modification.
(a) aggravation, compensation.—If rate Readjustment of of or is diminution, place takes or termination of or compen- is set after the rate discovered Commission, terminated, application on the sation is motion, may: its own in interest any party (1) compensa- the rate of application future readjust for tion; or
(2) payments. appropriate, if terminate (b) modification.—(1) Continuing powers jurisdiction; and continuing jurisdiction and powers The Commission under this title. over each claim (3) subsection,
(2) the Com- of this Subject paragraph or order as Commission modify any finding may mission justified. considers (c) section,
(3) subsection Except provided modifi- unless the may modify award the Commission compensa- after the last years for within applied cation tion payment.8 to the grants power expressly unequivocally statute and
The its just, it even on modify awards as considers Commission to Waskiewicz, limits also, unfortunately for Mr. motion. It own modifications to an to make of the Commission power following payment the last five-year period to a original award to the claimant. history purposes extensively reviewed We recently most on modifications of awards of limitations statute Inc., Stores, A.2d 340 329 Md. v. Giant Food Vest rule of the statute. (1993), straightforward and reiterated (c) estoppel preventing a or fraud addresses 8. Subsection 9-736 section; filing application for modification under this claimant relevance to the instant case. the subsection has no back petitioner compensable Vest suffered total and then benefits temporary partial received years the course of months. Seven from the *10 eighteen over attempted of to payment compensation, date of his last Vest condition, on of his worsening his claim based back reopen 40(c) of limitations in of arguing part that the statute 9-736) inapplicable Article 101 statute to was (predecessor hearing. decided on the record without a because his case was contention, five-year held that the rejecting period his we awards, applies quoting of limitations for modifications to all on the authority from a well-known workers’ statutory reopening of time limits on cases: purpose “As Professor Larson has noted: injury to a case based on an ten or
‘[A]ny attempt reopen encounter awkward years necessarily fifteen old must long delay because of the and the problems proof, some difficulty determining relationship between An- present aggravated disability. ancient and a other is that the insurance carriers would never argument incur, they might know what kind of future liabilities and difficulty have reserves.’ computing appropriate would omitted.) (Footnotes 81.10, Larson,
2 at 15-94 to Compensation, A. Workmen’s (Desk 1976). any A total absence of limitations 15-95 ed. cases decided on the record would period many potentially such risks and overload the compound further docket.” Commission’s
Vest,
Md. at
“The cannot restriction on Commission authority. agency meaning its An ‘cannot override the plain the clear beyond its provisions or extend statute of the from the It is clear employed.’ language of the import 40(c) provision, limitations that, enacting §of history ability the Commission’s restricted Assembly General (Citations awards.” reopen prior authority its exercise omitted.) 475-76, A.2d at 347.
Id. at that he could recognized must have Mr. Waskiewiez as statute reopening meaning plain under the prevail was made law, original award his our case because well so dramat- condition worsened before his years five more than for modifica- Therefore, application not file an he did ically. particular distinguish tion, attempts us and before existing of an claim. reopening simple from a situation that his additional argument is of Mr. Waskiewicz’s essence syn- to the hazards injurious exposure *11 having line assembly to the drome, his return caused after line, analogous to more assembly was from the removed been of an aggravation injury than an personal new accidental re- who are Thus, as just employees disability. existing entitled accident are of another job on the because injured § 9-501 of the claim under compensation new workers’ file a of new claim because to file a Act, he be entitled so should 9-502(a) Act. “injurious exposure” another in Mr. Waskiew- underlying assumptions question We had if Mr. clear that Waskiewiez quite It seems analogy. icz’s assembly on the stayed 1970s and in the suffered syndrome his interruption, line without time, only opportunity his over that continued to worsen reopening provision. be under benefits would increased before argument that Mr. Waskiewicz’s must assume Thus we in actions employer’s notion that founded on the us is repetitive him the reassigning him from and then removing triggering a new events significant were the motion work argue explicitly does not Mr. Waskiewiez Although claim. faith, intention- negligently, in bad acted that his entire underlies Mr. Waskiewicz’s impliedly “fault” ally, GM’s a “no-fault” is recovery. Workers’ theory system, rendering very foundation of Mr. Waskiewicz’s argument quite shaky.
Second, Mr. in his the five- Waskiewicz asserts brief year period reopening simply limitations a claim does not in apply his circumstances: however, year provision,
“The five
limitations
was never
to bar a new claim when the employer again
intended
such an
to the distinct
haz-
exposed
employment
thereby
ards of the
disease and
caused an
is
maintain
certainly
increased disablement. He
entitled to
a claim for additional
for the increase
his
if
disability,
just
any employee
would be entitled
he
accidental
which
prior
sustained
worsened his
(Citations
added.)
disability.”
emphasis
omitted and
Mr.
does not
support
analysis
Waskiewicz
intention of the
with
9-
Legislature
any legislative history
authority,
any.
736 or other
nor could we locate
we
While
acknowledge some
seeming
must
unfairness
the instant
case,
recognized
legitimate
we have also
purposes
periods,
bright-line
limitations
and noted that all
rules will
some individual unfairness. See Debusk
occasionally result
Hopkins Hospital,
v. Johns
(1996);
342 Md.
Moreover, analogous his contention that his claim is to a new injury simply unpersuasive, is on the basis of the facts to stipulated. which he Stevens, supra,
In we noted that reopening provision exists “for in a claimant’s typically situations which condition Id. to increased benefits.” the claimant entitling degenerates, case simple 647 n. 11. is the 667 A.2d at Such n. at 565 from a condition suffering has been Mr. Waskiewiez here: rate of his degenerated original since drastically which Mr. was set. disability partial permanent Agreed Waskiewiez, Facts “Stipulation Agreed in court, that his current the trial admitted submitted to Issues” he has from which syndrome is “the disease tunnel carpal in the first diagnosed since it was varying degrees suffered 1970s,” from aggravation permanent 15% with the recent early a occurring use “as loss of permanent of use to 100% loss on March 1992.” We injurious exposure his last result that this appellate court with the intermediate are accord Mr. ruling favor of fact us from prevents alone stipulated Waskiewiez: tunnel carpal suffered a first
“[Waskiewiez] exposure purposes injurious His last 1973. syndrome therefore, claim, prior his filing a occurred subsequent in 1973. His syndrome a claim. filing the basis of cannot be exposures have short, injury for his current could any recovery it original claim. Since reopening secured a by been claim, is not his current reopen now too late to result, does this is harsh the statute compensable. While claim in the facts subsequent accordance with permit upon.” agreed
III. of Mr. Waskiew- recognize aggravation that the recent We knowingly least in because part occurred at GM iez’s him at risk of such light duty placed him from removed job him line assembly to an assigning back aggravation hand Were his duties include motions. repetitive where would statutory rather equity than question the issue before us for Mr. law, Unfortunately not fare surely GM would so well. Waskiewiez, however, statutory the workers’ preempts and thus addresses his situation specifically scheme of our equitable powers. exercise *13 that,
We conclude for Mr. Waskiewicz to prevail, we would have to hold that the removal from line work and then harmful re-exposure constituted a new compensable event not recog- nized the Act. Although reassignment the to a hazardous set duties is somewhat analogous to a new accidental injury causing a disability, as Mr. argued, Waskiewicz has analogy persuasive is not enough cause this Court overstep its boundaries by judicially the Act. modifying As Debusk, we supra, recently discussed key one of the virtues of a statutory workers’ compensation system is predictabili- its ty. The General Assembly has determined that both a dis- ablement from an resulting occupational disease and an acci- personal dental job on the compensable constitute scheme; events under the statutory determined, it has not at least as the date of this opinion, that an employer’s knowing reassignment of an already disabled worker to hazardous more, duty, without compensable is a event.9 it Perhaps course, 9. workplace Of if an entered type with some condition, preexisting impairment or subsequent and then suffered a disease, workplace accident or he would be entitled to compensation proportion disability for the of the attributable to the 9-655, subsequent accident or disease. Sections 9-656 and 9-802 govern liability place both the of the last employment and compensation ultimate to the claimant. provide Sections 9-655 statutory apportionment and 9-656 "preexisting between a infirmity,” disease or and a disease, subsequent permanent accident or in cases of disability body of less than of the as a 50% whole. The claimant is proportion entitled to benefits for disability reasonably of the disease, subsequent attributable to the accident or but not for the proportion of the attributable to preexisting disease or infirmity. If preexisting permanent a covered impairment with a subsequent suffers a accident resulting whole, body of more than § 50% 9-802 and the Subsequent Injury Fund become requires relevant. Section 9-802 substantially greater be due to the combined effects of the preexisting permanent impairment subsequent compensable and the event; responsible is then payable subsequent which would have been compensable for the event. met, 9-802(b) If the numerous factors in employee may are also be entitled to Subsequent Injury additional benefits from the Fund. apportionment Neither Subsequent Injury 9-656 nor the case, applicable Fund under 9-802 are in this require because both us, determination, as the situation before make such a should unfair; if facts, we but appears particularly on the stipulated *14 job to in Mr. Waskiewicz re-assigning that actions held GM’s compensable in a past he had held constituted duties This event, writing legislation. in we would be essence usurp Assembly’s the General cannot and will Court Act in this manner. scope of the authority expand to AFFIRMED, COSTS. JUDGMENT WITH J., CHASANOW, in which Dissenting Opinion BELL, JJ., join. ELDRIDGE and
CHASANOW, Judge, dissenting.
Act
Compensation
majority
The
holds that
the Workers’
(the
(1991
Act),
Repl.Vol.,
Supp.),
1995
Labor
Maryland Code
Article, §
a disabled
seq.,1
9-101 et
bars
Employment
and
claim for a
total disabil-
maintaining
permanent
worker from
a
1992,
in
simply
from an
disease that occurred
ity
for a 15 percent
award
because the worker received an
years
16
earlier.
from the same
result,
its
recognizes
In
that
hold-
reaching
majority
this
712,
unfairness,”
seeming
342 Md. at
ing has “some
unfair,”
715,
1101,
The facts in the instant case are 1973, in syndrome in and 1976 he developed carpal tunnel par- permanent for a received workers’ benefits 1980s, During tial of 15 Waskiewicz percent. syn- tunnel carpal continued to further treatment receive no use of light duty drome and was that involved placed heavy lifting. and no In Waskiewicz’s power tools preexisting impairment subsequent accidental both a and job did line with a Mr. Waskiewicz return to his disease. not, disease, already, length at preexisting but did as we have discussed subsequent occupational disease. suffer (1991 Repl.Vol., Maryland statutory to 1. All are Code references Supp.), Employment Article. Labor physician specifically directed assign General Motors to Wask- iewicz with jobs lifting, repetitive “no no motion and no of air guns.” use Despite General warning, again Motors placed job Waskiewiez where required he was use hand tools a repetitive manner. As a result this new work- place exposure, Waskiewicz’s syndrome wors- ened, and the parties agreed have totally he is now engage gainful disabled unable to in any employment. Waskiewiez, ruling against the majority asserts that he not support “does of the intention analysis Legisla with any history ture legislative 9-736 or authority, other any.” nor could we locate 342 Md. at at A.2d 1101. I disagree. legislature mandated 9-102 that the Act is be construed liberally favor of workers like Waskiewiez. That can mandate be considered a part *15 legislative history. Moreover, Act’s the rule fundamental the Act should liberally be construed in favor of workers has recognized by been in Court numerous cases. See Para v. 241, 251, (1995) Richards 339 Group, 737, Md. 661 A.2d 742 “ (noting that Act liberally the ‘should be in construed as favor of injured employees provisions permit its will in order to ”) (citations effectuate its purposes’ omitted); benevolent Vest Stores, Inc., v. 461, 467, 340, Giant Food Md. 329 620 A.2d 342 (1993); Walls, Howard Co. Ass’n. Retard. Cit. v. 288 Md. for (1980). 526, 530, 1210, 1213 418 A.2d of construing liberally
Instead
the Act
in favor of the
employee,
majority
disabled
seems to construe all ambigu-
ous provisions against the worker and holds that Waskiewiez
compensation
cannot recover
for his
disability
increased
either
through a reopening
by
of his 1976 claim
filing
or
a new claim
solely
based
on his 1992 increase in disability.
to
According
majority,
once a
worker
deemed “disabled” from an
disease,
that worker
any
cannot recover for
in-
in disability,
crease
even though
by
it
was caused
hazards,
to
exposure workplace
unless the worker files for a
reopening of his or her original award
years
within five
payment
last
on the original claim. Because Waskiewiez did
not file for a reopening of his
original
percent disability
barred
majority holds that he is
years,
within five
claim
recovering
disability.
for his increased
9-736
for
course,
apply
could
Of
the reason Waskiewicz
years
in
within five
of the 1976
increase
injurious
that caused
exposure
the second
award was because
1992,
occur until
more
did not even
disability
his increased
essence,
that the
majority holds
later.
years
than 15
disability
limitations
claim for total
statute of
Waskiewicz’s
disability had even occurred.
total
expired
years
ten
before the
limita-
five-year
intend that the
did not
Surely
legislature
recovery
an increase
reopening an award would bar
tion on
caused, not
progression
in
natural
workplace
disease,
injurious exposure to
by subsequent
but
Lutter,
334,
342 Md.
Employers’ v.
hazards. See Uninsured
(1996)
that courts should avoid
(noting
statutes).
construing
or
absurd
unreasonable results when
great
increase
majority’s holding
The
should result
modify permanent partial disability
to
awards.
trivial motions
partial
on a permanent
A worker who receives an award based
have
file for a
disease will
disability from
or
disability every
modification
four
five
increase
any
additional
right
years
losing
risk
substantially
her
disease worsen
should his or
employment
hazards.
exposure
due to continued
that if Waskiewicz’s in-
majority apparently concedes
resulted from a new accidental
crease
had
after his 1976
years
more than five
he suffered
*16
ended,
be
to additional
he would
entitled
award
at
disability.
§
342 Md.
9-501 for the increase
under
711,
Waskiewicz’s increase
“(a) by Determination appears Commission.—If it that a permanent disability of a covered following injury accidental or personal disease due personal to the accidental partly or disease partly to a preexisting infirmity, disease Commission shall determine: applies 2. Section 9-656 in cases where the combined effects of a preexisting infirmity subsequent occupational and a result disease in a permanent disability percent body that does exceed 50 of the as a § whole. See 9-655. where cases the combined result effects in a whole, disability that percent body does exceed 50 as a 9-802 9-802(a), applies. Under is liable for the subsequent occupational caused disease. The is also entitled to additional Subsequent Injury state if preexisting Fund the combined effects condition and the subsequent occupational cause "substantially greater” disabil- ity than would have case subsequent occupational been the from 9-802(b). disease alone.
719 (1) disability reasonably that is of the proportion the injury occupational or personal to the accidental attributable disease; and
(2) disability reasonably that is proportion the infirmity. or preexisting the attributable (b) employee: covered compensation.—The Payment of (1) the the portion is entitled of for reasonably attrib- employee that is the covered disability of personal occupa- or to the accidental solely utable disease; and tional
(2) of portion for the the is not entitled to to the reasonably preexisting that is attributable added). infirmity.” (Emphasis disease or provides pertinent part: 9-802 Section “(a) a insurer.—If liability employer Limitation impairment and suffers permanent has a covered injury, dis- personal accidental subsequent ease, permanent partial resulting or hernia compensable greater substantially that is permanent or total impairment previous to the combined effects due it would have been event than subsequent compensable alone, subsequent compensable from event compensation payable its is liable or insurer inju- subsequent personal under title accidental this disease, (Empha- or hernia.” ry, compensable added). sis § 9-656 or 9-802 to nothing language
There from car- original percent disability preclude Waskiewicz’s being “preexisting considered a pal syndrome If his disabil- impairment.” original or a “permanent disease” 9-802, § 9-656 it preexisting is a ity impairment compensa- entitled to clear that Waskiewiez should be seems reasonably current attrib- portion tion for the his exposure. utable § 9-656 and majority dismisses construction summarily by simply pronouncing footnote 9-802 disease.” subsequent did not “suffer
Waskiewiez
Neither 9-656 nor 9-802 any requirement contains that an employee suffer a subsequent occupational and different qualify disease in order for compensation. to These provisions merely an require employee that be due permanently disabled partly preexisting to a disease to a partly subsequent occupational That exactly disease. is what is have alleged to in occurred the instant case. is no dispute There that Wask- iewicz from carpal syndrome suffered tunnel when General Motors assigned him 1991 to with in a work hand tools repetitive manner. It is also that stipulated this repetitive work in subsequent worsening 1991 and resulted of the carpal syndrome point to that Waskiewicz became unable to work. Sections 9-656 and 9-802 do not require that a preexisting worker’s disease be of a different type subsequent than the occupational disease. We should not statute, read such a into requirement especially when unfairly deny result is to Waskiewicz workers’ compensation benefits for a he a result received as of his employ- ment.
The right workers’ for a disability caused by 9-502(c), an occupational disease is conferred which provides: “(c) Liability employer insurer.—Subject to subsec- of (d)
tion of this section and except provided, as otherwise employer and insurer to whom this subsection shall applies provide with accordance this title to: (1) for employee a covered from an dis- resulting covered employee ease; or
(2) of the covered death dependents dis- resulting the covered ease.” a strained majority adopting
It seems
me
com-
deny
§ 9-502
order
Waskiewicz
interpretation
§ 9-502
disability.
majority
for his
construes
pensation
single
single type
occupa-
claim for
only permitting
disease,
within the
may
reopened
that claim
be
although
tional
majority’s construction com-
statutory period.3 The
five-year
(e)
clearly
the statute that
envi-
pletely ignores subsection
claim
the same
more than one
sions
*19
legislature
if the
superfluous
been totally
and that would have
tacitly approved
filing
the
one
3. This Court on at least
occasion
occupational
the
dis-
separate
for disablement from
same
claims
two
McDonald,
466,
County
564
797
Montgomery
317 Md.
A.2d
In
v.
ease.
attacks,
(1989),
one in 1977 and
employee
the
suffered two heart
1984,
separate occupational
he
disease
in 1984. In
filed two
another
claims,
dating
other
from
dating
the
heart attack and the
one
from
1977
that
attacks involved the
heart
It was conceded
both
the 1984
attack.
Compensation
occupational
The Workers’
Commission
disease.
same
(the
Commission)
by
was
the
the claim for the 1977 attack
barred
found
the
for
The Commission also found that
claim
statute of limitations.
by
statute
limitations because it
1984 heart
was barred
attack
appeal to
casually
attack. On
the circuit
related to the 1977 heart
was
court,
together
number. The
two
were
under one case
claims
filed
heart attack was not
court held that the claim for
1977
circuit
court, however,
by
circuit
did not
of limitations. The
barred
statute
ruling
specific
on the claim for the 1984 heart attack. The
make a
attack,
ruling
appealed
the claim for the 1977 heart
on
order for immediate
was no certification of the circuit court’s
but there
2-602(b). This
reversed the circuit
appeal
Maryland
Rule
Court
by
was
held
the claim for the 1977 heart attack
barred
court and
that
however,
doing,
In so
we indicated that the
the statute
limitations.
dependent on the 1977 claim
for the 1984 heart attack was not
claim
pending,
though it was
increased
was still
even
McDonald,
disease as the 1977 claim.
caused
the same
n. 2. This was at least a tacit
Md. at 469 n.
The majority cites no cases from any jurisdiction to support holding. its I appellate decision have been able to locate that is clearly point decides the contrary issue to the majority’s holding. Mikitka v. Johns-Manville Products (N.J.Su Corp., 139 N.J.Super. *20 per.Ct.App.Div.1976), the court faced a set of circumstances similar to that presented Mikitka, in the instant case. a worker who suffered asbestosis, from work-related received an award for a seven percent and one-half permanent disability. Despite her disability, Mikitka continued to work for her for several more years before retiring. After her retirement, Mikitka filed a new workers’ compensation claim seeking additional compensation for an increase her disabili ty that resulted from continued exposure employment occurring hazards after the initial award for a seven and one- half percent disability but before her retirement. The new two- Jersey New statute’s however, filed after the claim, was claim had reopening for of limitations statute year Mikitka could main- Nonetheless, held that the court expired. disability: for increased her claim tain a new claim case, ... has filed petitioner present “In the [original] modification of seeking she is not petition; Rather, exposure that because contends she award. after occurring employment conditions alleged deleterious disabili- award, additional she has suffered the 1967 entry of modification of claim, attempted not an This is a new ty. appli- no time limitation two-year [has] award. prior [The] new claim. cation to this
[*] [*] [*] [*] * * has once recovered [W]here additional suffers and thereafter to the conditions exposure disability from additional award, such an original after rendition employment disability so caused for the petition file a claim employee can (or knew after the years) now two year within stemming of the increased to have known ought as to the knowledge employment despite from the continued original with the connection disability acquired type limited circum- rule, these applied to be award. This barring possibly result of stances, the absurd will avoid (Citation omitted). even existed.” they claims before Mikitka, at 593-94. instant applied rationale should be
I a similar believe a new claim allowed to maintain should be Waskiewicz case. he has suffered for the increased hazards employment to the exposure of additional as a result According- to worsen. syndrome that caused his I dissent. ly, me to state Bell have authorized Eldridge Judge
Judge dissenting opinion. in join expressed in the views they