Warnken, LLC Attorneys at Law, Attorneys & Lawyers, Pikesville, MD

Hypertension and Police Officers

Workers’ Compensation and Hypertension

What Every Officer Should Know Before Filing a Claim

By: Rebecca L. Smith, Esq.

Warnken, LLC, Attorneys-at-Law

443-921-1100

 

(PLEASE NOTE: This article was originally written for our clients, the Maryland State Troopers.  Most applies to law enforcement throughout Maryland.  Please contact us directly for differences based on your agency, you job, or your situation.  If you are from out of Maryland, we may be able to assist you in finding counsel.)

In Maryland, workers’ compensation law is clear that a work-related injury is either classified as an accidental injury or an occupational disease.  Generally, an occupational disease is an ailment, disorder, or illness, which is the expected result of working under conditions naturally inherent in the employment. Occupational diseases are usually, but not always, slow and insidious in its approach.[i]

A compensable occupational disease requires that the claimant satisfy two tests.  First, the claimant must satisfy an objective test requiring the claimant to show either that (1) the disease is an occupational disease, due to the nature of the employment in which the hazards of the disease actually exist, or (2) the disease and its manifestations are consistent with those known to result from a given physical, chemical, or biological agent attributable to the employment.  Second, the claimant must prove disablement.

Presumption for Police Officers

If a paid police officer employed by the State is suffering from hypertension, it is presumed that the hypertension was suffered in the line of duty and is compensable, but only if the hypertension results in partial or total disability.[ii]  This presumption means that the claimant never bears the burden of producing evidence that the hypertension is work-related and compensable, nor is the claimant responsible for persuading the Workers’ Compensation Commission that the hypertension is work-related and compensable.  Rather, the employer, or its insurance company, must produce evidence that proves that the hypertension is not work-related, not compensable, or both.[iii]

In order for the employer to prove that the hypertension is not work-related, the employer would need to prove that the hypertension is not attributable to the employment, but rather from some other source, such as stress related to family or monetary pressures.[iv]  The employer may hire expert witnesses to testify that a Trooper’s hypertension did not result from his/her occupation as a police officer, but only if there is a sufficient factual basis for that conclusion. To prove that the hypertension did not result from his /her occupation as a police officer, the employer must present evidence that is particular to that individual Trooper, and not particular to the profession as a whole.[v]  To prove that the hypertension is not related to a Trooper’s employment, the expert may proffer evidence that the hypertension was present prior to employment as a police officer or that the police officer was only employed by the agency for a short period of time, and therefore, the hypertension could not have resulted from the employment.[vi]

Due to the presumption, most employers do not contest that the hypertension is work-related, unless there is clearly another cause for the illness.  For example, if a Maryland State Trooper files a workers’ compensation claim for hypertension after he/she has been charged with violating a provision of the Administrative Manual, or after a significant family event not related to the employment, or a financial hardship, the insurance company may be more inclined to question whether the hypertension is the result of the employment or the stress of other major life events.

Thus, although Maryland State Troopers enjoy a presumption that the occupational disease of hypertension is a work-related, compensable condition, that presumption is not irrebuttable.[vii]  The employer may show evidence that the hypertension is not work-related. However, even if the employer offers evidence to rebut the presumption that a police officer’s hypertension is work-related, the presumption remains in the case as affirmative evidence of causation.[viii]

Disablement

What is often unclear for Maryland State Troopers who file a hypertension workers’ compensation claim is whether that occupational disease has caused disablement.  The Workers’ Compensation Act defines disablement as the event of a covered employee becoming partially or totally incapacitated.[ix]  Incapacity may take on four main forms: (1) temporary partial incapacitation; (2) temporary total incapacitation; (3) permanent partial incapacitation; or (4) permanent total incapacitation.[x]  The incapacitation must be related to the employee’s ability to perform whatever work that employee was engaged in last.[xi] Although the definition of incapacity seems clear, and, in fact, in the context of an accidental injury it would be entirely clear, the Workers’ Compensation Commission has yet to outline a precise rubric for determining disablement for police officers suffering from hypertension. Most insurance companies will argue that if a Maryland State Trooper does not miss time from work, he/she is not incapacitated and thus, there is no disablement.

For instance, in Helinski v. C & P Tel. Co., the Maryland Court of Special Appeals found that “an incapacity to work in one set of conditions applicable to a particular job does not necessarily indicate or equate with 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 occupation is in fact foreclosed to the claimant.  If, indeed, the claimant is able to continue to perform reasonably analogous work within the same occupational classification at the same or higher wages, he is not incapacitated from performing his work in the last occupation.”  Thus, according to Helinski, a Maryland State Trooper who suffers from hypertension may not be disabled if he/she can continue to perform his/her duties for the same or higher wages, regardless of whether he/she cannot do all of the same duties for that specific assignment.

Maryland courts have also determined that an employee is not incapacitated within the intent of the law if, although injured, the employee has the capacity and ability to perform his/her regular work, and actually continues to perform his/her regular work for which he/she is employed.[xii]  For example, a Trooper who claims that he/she suffers from an occupational disease but, despite that disease, continues to work under the same conditions, may not be disabled as defined by statute.  In order to prove disablement, the Trooper would have to be unable to perform the required functions of his/her assignment and, in fact, stop performing his/her regular work.

Although there must be some type of partial or total disability, loss of wages is not a pre-requisite to determining whether a claimant is disabled.[xiii]  In Miller v. Wester Elec. Co., the claimant was diagnosed with carpal tunnel syndrome.  As a result of her injury, she was unable to work as quickly as before and unable to handle tools necessary for her job; however, the claimant did not suffer any reduction in her wages. In fact, over the period of time that the claimant suffered from her occupational disease, she received increases to her wages and received overtime pay. In finding that actual wage loss is not a factor to be considered in determining whether a claimant is disabled, Miller looked to the legislative history and intent of the accidental injury and occupational disease statutes.  Miller reasoned that that actual wage loss cannot be the sole consideration for determining whether an employee is partially or totally incapacitated because of an occupational disease.  Miller determined that just because the Legislature required a showing of actual incapacitation in occupational disease cases that did not mean that it intended a wage-loss requirement as a prerequisite to compensation.[xiv]

Miller also cautioned that strict adherence to a “wage loss requirement” to determine whether an employee is actually incapacitated may lead to absurd results.  Specifically, it may deprive a physically-disabled worker of a workers’ compensation award, which essentially penalizes the workers’ laudable efforts to keep working.  Furthermore, such a requirement would promote the fiction that a worker, simply because of his/her level of earnings, is not suffering from permanent partial disability.

Filing a Successful Workers’ Compensation Claim

Employees suffering from an occupational disease have one year after the employee knows or should have reason to know that he/she suffers from an occupational disease to notify the employer.[xv]  Maryland State Troopers should complete the necessary forms to notify their employer that a work-related injury has occurred. Thereafter, employees have two years from the date of disablement or when the employee first had actual knowledge that the disablement was caused by the employment to file a workers’ compensation claim.[xvi]  Thus, the statute of limitations to file a workers’ compensation claim for hypertension does not begin to run until a Trooper is diagnosed with hypertension and the Trooper actually knew that the hypertension was work related.   If a Trooper does not file a workers’ compensation claim within two years of when he/she had actual knowledge that the hypertension was work-related, the claim will be barred absent extenuating circumstances, such as fraud on behalf of the employer or insurer.[xvii]

In order to be successful in a workers’ compensation claim for hypertension, Troopers must be able to prove that they are disabled.  If the Trooper is feeling symptomatic at work, he/she should handle the matter quickly. In a typical, successful workers’ compensation claim for hypertension, a Trooper who begins to experience symptoms associated with hypertension would see a physician immediately, regardless of whether that Trooper is mid-shift or about to start a shift.  If the Trooper actively seeks medical treatment for any symptoms and that those symptoms are affecting the Trooper’s ability to perform his/her duties, it is much easier to convince the employer that the Trooper is disabled within the meaning of the statute.  In addition, seeing a physician when the Trooper is symptomatic, the medical records asst in documenting the issues and it supports a claim of factual disability. If a Trooper misses work because of hypertension, the Trooper would, if possible, see a physician that same day and should ensure that the necessary forms are completed for the Maryland State Police in a timely fashion.  The forms should clearly reflect the cause of taking sick leave.

It is an open question as to whether a Trooper who suffers from hypertension, who does not miss time from work, but who cannot complete all of the essential functions of a Trooper, is disabled. If a Trooper is able to perform all of the essential functions of a Trooper, but does not perform those duties as well as he/she would have absent hypertension symptoms, the Trooper may be disabled. Additionally, a Trooper who is no longer able to run long distances due to hypertension and shortness of breath may not be deemed to be disabled if the Trooper is able to perform all other duties.  The simplest way to prove disablement is when the Trooper sought medical attention immediately after experiencing symptoms, he/she missed work because of those symptoms and/or treatment, and once the Trooper returns to work, they cannot perform the duties as well as before the hypertension.

Retired Members of the Maryland State Police

Current members of the Maryland State Police are not the only people covered under the presumption that hypertension is a work-related, occupational disease.  Retired Troopers who suffer from hypertension may also be covered under the Workers’ Compensation Act and its presumption.[xviii]  In fact, the insidious and elusive nature of occupational diseases compelled the court in Pirrone to conclude that the Legislature intended that retired public safety employees be covered under the Act.  Retired Troopers must still meet the requirements before filing a workers’ compensation claim for hypertension, such as the one-year notice requirement, filing within two years of actual knowledge that the hypertension is work-related, and proving disablement.   If, however, the Retired Trooper becomes employed after retirement by someone other than the Maryland State Police, the presumption may not apply and the Maryland State Police may not be the responsible employer.[xix]

Conclusion

Although Troopers enjoy a presumption that hypertension is work-related under workers’ compensation law, Troopers must also prove that the hypertension has caused disablement.  Disablement is not simply feeling ill and pushing through the day until the Trooper can treat the symptoms at home.  Disablement means that a Trooper who suffers from hypertension cannot continue to perform his/her duties for the same or higher wages, regardless of whether he/she cannot do all of the same duties for that specific assignment.

Troopers should keep in mind that the purpose of workers’ compensation is to ensure that the injured employee receives necessary medical care and to compensate those injured workers who suffer from any permanent disabling effects of injury.  If a Trooper begins to have symptoms associated with hypertension, and those symptoms are affecting his/her ability to perform his/her duties, he/she should see a doctor immediately and complete the necessary Maryland State Police forms associated with any illness. 



[i] City of Frederick v. Shankle, 367 Md. 5, 8 (2001).

[ii] Md. Code Ann, Lab. & Empl. § 9-503(b)(1).

[iii] Montgomery County v. Pirrone, 109 Md. App. 201 (1996).

[iv] See City of Frederick v. Shankle, 367 Md. 5 (2001)

[v] Id. at 15.

[vi] Id.

[vii] Id.

[viii] Montgomery Co. Fire Bd. V. Fisher, 298 Md. 245, 257 (1983).

[ix] Md. Code Ann, Lab. & Empl. § 9-501(a).

[x] Md. Code Ann, Lab. & Empl.  §9-101(g). See also Helinski v. C & P Tel. Co., 108 Md. App. 461, 472 (1996).

[xi] Helinski, 108 Md. App. at 470.

[xii] Smith v. Howard County, 177 Md. App. 327, 336 (2007) (citing Belschner v. Anchor Post Productions, Inc., 227 Md. 89, 93 (1961)).

[xiii] Miller v. Western Elec. Co., 310 Md. 173 (1987).

[xiv] Id. at 186.

[xv] The Trooper’s failure to notify the Maryland State Police within one year of the employee knows or has reason to know that the hypertension is work-related bars a claim for compensation unless the Commission excuses the failure on the ground that notice, for some sufficient reason, could not have been given, or that the employer or insurer suffered no prejudice from the lack of notice. Md. Code Ann, Lab. & Empl. §§ 9-404(d), 9-705(b), 9-706(a).

[xvi] Md. Code Ann, Lab. & Empl.  § 9-711.

[xvii] The employer or insurer’s defense as to the statute of limitations is waived if the employer makes compensation payments, or by affirmative conduct, leads the employee to believe that notice or claim has been waived.  Also, if the employer or insurer fails to raise this defense at a hearing before the Commission makes an award or decision, it is waived. Md. Code Ann, Lab. & Empl. §§ 9-705(d), 9-706(c), 9-711(c)

[xviii] Montgomery County v. Pirrone, 190 Md. App. 201, 210 (1996).

[xix] Id.