File Code: Workers' Compensation
Crossfiled with: HOUSE BILL 1070
Sponsored By:
Entitled:
Workers' Compensation - Presumptions
Synopsis:
Providing that the presumption of compensability of specified occupational diseases under workers' compensation law is rebuttable; limiting the application of specified presumptions of compensability to an individual who has been retired for a specified period of time; and stating the intent of the General Assembly regarding the ability of an expert witness to provide specified testimony.
History by Legislative Date
Senate Action
2/6
First Reading Finance
2/18
Hearing 3/2 at 1:00 p.m.
House Action
No Action
Bill indexed under the following Subjects:
http://mlis.state.md.us/2004rs/billfile/sb0557.htm
SB 557
Department of Legislative Services
FISCAL AND POLICY NOTE
Workers' Compensation - Presumptions
This bill provides that presumptions of compensability are rebuttable and specifies that if the employer or insurer presents medical or factual evidence contrary to the presumption of compensability, that claimant has the burden of production and persuasion.
The bill also specifies that presumption of compensability does not apply to employees who have been retired for more than five years from the employment that the employee alleges is the cause of the disease.
Fiscal Summary
State Effect: State payments for workers’ compensation claims, all funds, could decrease significantly in FY 2005 due to fewer awards for presumption. Special fund expenditures could increase to the extent that there are additional contested cases before the Workers’ Compensation Commission (WCC). Future year savings and WCC expenses would reflect caseload volumes.
Local Effect: Potential significant reduction in workers’ compensation claims or premium rates.
Small Business Effect: Potential significant reduction in workers’ compensation premiums.
Analysis
Bill Summary: In addition to providing that presumptions are rebuttable, the bill states that it is not the intent of the General Assembly to preclude an expert witness from testifying about the cause of the disease solely because the expert witness does not accept the basis for the statutory presumption.
Current Law: Presumptions of compensable injury exist for heart disease, hypertension, and lung disease for certain public safety employees and first-responders including paid and volunteer firefighters; paid and volunteer firefighting instructors; sworn members of the Office of the Fire Marshal employed by an airport authority, a county, a fire control district, a municipality, or the State; volunteer rescue squad members; volunteer advanced life support unit members; paid police officers employed by an airport authority, a county, the Maryland-National Capital Park and Planning Commission, a municipality, or the State; or a deputy sheriff of Montgomery County. Deputy sheriffs of Baltimore City and Prince George’s County deputy sheriffs and correctional officers have presumptions for heart disease and hypertension to the extent that the heart disease and hypertension are more severe than the individual’s heart disease or hypertension before employment.
Many occupations also have presumptions of compensability for occupational diseases directly related to contact with toxic agents. For example, paid law enforcement employees in the Department of Natural Resources have a presumption of compensability for Lyme disease.
State Fiscal Effect: The Injured Workers’ Insurance Fund (IWIF) advises that it is impossible to reliably estimate the impact of health care panels on workers’ compensation insurance medical care costs. IWIF notes 19 total State claims involving prescriptions in 2002 with costs (medical care plus indemnity) of $933,071. For illustrative purposes, if 50% of presumption cases are decided in the favor of the State under the provisions of this bill, State workers’ compensation payments could decrease by $466,500.
WCC indicates the provisions of this bill could result in an increase in contested issues and the length of contested cases. The Department of Legislative Services notes that a reliable estimate of potential workload increases is not possible.
Local Fiscal Effect: IWIF advises that one case in a local jurisdiction has incurred claims costs exceeding $112,000. To the extent that local jurisdictions are self-insured, the provisions of this bill could reduce claims paid for presumptions of compensability. To the extent that local jurisdictions have third-party workers’ compensation insurance, the provisions of this bill could significantly reduce workers’ compensation premium payments.
Small Business Effect: Businesses could recognize significant savings in workers’ compensation premiums if costly presumption awards decrease. That downward pressure on premium growth could be mitigated by insurers requiring additional legal services to produce medical or factual evidence to rebut a claim of presumption.
Additional Information
Prior Introductions: None.
Cross File: HB 1070 (Delegate Wood, et al.) – Economic Matters.
Information Source(s): Uninsured Employers’ Fund, Workers’ Compensation Commission, Injured Workers’ Insurance Fund, Subsequent Injury Fund, Department of Legislative Services
Fiscal Note History:
ncs/mdr
First Reader - February 27, 2004
Analysis by: Daniel P. Tompkins
Direct Inquiries to:
(410) 946-5510
(301) 970-5510
Fiscal Notes: http://mlis.state.md.us/pdf-documents/2004rs/fnotes/bil_0007/sb0557.pdf
SENATE BILL 557
Unofficial Copy 2004 Regular Session
K1 4lr1640
CF 4lr1649
____________________________________________________________________________________
By: Senator Astle
Introduced and read first time: February 6, 2004
Assigned to: Finance
_____________________________________________________________________________________
A BILL ENTITLED
1 AN ACT concerning
2 Workers' Compensation - Presumptions
3 FOR the purpose of providing that the presumption of compensability of certain
4 occupational diseases under workers' compensation law is rebuttable; providing
5 that the presumption of compensability shifts the burden of production to an
6 employer or insurer to overcome the presumption; providing that, if an employer
7 or insurer presents medical or factual evidence contrary to the presumption of
8 compensability, the claimant has the burden of production and the burden of
9 persuasion; limiting the application of certain presumptions of compensability to
10 an individual who has been retired for a certain period of time; stating the
11 intent of the General Assembly regarding the ability of an expert witness to
12 provide certain testimony; and generally relating to presumptions of
13 compensability under workers' compensation law.
14 BY repealing and reenacting, with amendments,
15 Article - Labor and Employment
16 Section 9-503
17 Annotated Code of Maryland
18 (1999 Replacement Volume and 2003 Supplement)
19 SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF
20 MARYLAND, That the Laws of Maryland read as follows:
21 Article - Labor and Employment
22 9-503.
23 (A) (1) THE PRESUMPTION OF COMPENSABILITY UNDER THIS SECTION IS
24 REBUTTABLE.
25 (2) THE PRESUMPTION OF COMPENSABILITY UNDER THIS SECTION
26 SHIFTS THE BURDEN OF PRODUCTION TO AN EMPLOYER OR INSURER TO OVERCOME
27 THE PRESUMPTION.
2 SENATE BILL 557
1 (3) IF AN EMPLOYER OR INSURER PRESENTS MEDICAL OR FACTUAL
2 EVIDENCE CONTRARY TO THE PRESUMPTION OF COMPENSABILITY UNDER THIS
3 SECTION, THE CLAIMANT HAS THE BURDEN OF PRODUCTION AND THE BURDEN OF
4 PERSUASION.
5 [(a)] (B) A paid firefighter, paid fire fighting instructor, or sworn member of
6 the Office of the State Fire Marshal employed by an airport authority, a county, a fire
7 control district, a municipality, or the State or a volunteer firefighter, volunteer fire
8 fighting instructor, volunteer rescue squad member, or volunteer advanced life
9 support unit member who is a covered employee under § 9-234 of this title is
10 presumed to have an occupational disease that was suffered in the line of duty and is
11 compensable under this title if:
12 (1) the individual has heart disease, hypertension, or lung disease;
13 (2) the heart disease, hypertension, or lung disease results in partial or
14 total disability or death; and
15 (3) in the case of a volunteer firefighter, volunteer fire fighting
16 instructor, volunteer rescue squad member, or volunteer advanced life support unit
17 member, the individual has met a suitable standard of physical examination before
18 becoming a firefighter, fire fighting instructor, rescue squad member, or advanced life
19 support unit member.
20 [(b)] (C) (1) A paid police officer employed by an airport authority, a county,
21 the Maryland-National Capital Park and Planning Commission, a municipality, or
22 the State, a deputy sheriff of Montgomery County, or, subject to paragraph (2) of this
23 subsection, a deputy sheriff of Baltimore City, Prince George's County deputy sheriff,
24 or Prince George's County correctional officer is presumed to be suffering from an
25 occupational disease that was suffered in the line of duty and is compensable under
26 this title if:
27 (i) the police officer, deputy sheriff, or correctional officer is
28 suffering from heart disease or hypertension; and
29 (ii) the heart disease or hypertension results in partial or total
30 disability or death.
31 (2) (i) A deputy sheriff of Baltimore City, Prince George's County
32 deputy sheriff, or Prince George's County correctional officer is entitled to the
33 presumption under this subsection only to the extent that the individual suffers from
34 heart disease or hypertension that is more severe than the individual's heart disease
35 or hypertension condition existing prior to the individual's employment as a deputy
36 sheriff of Baltimore City, Prince George's County deputy sheriff, or Prince George's
37 County correctional officer.
38 (ii) To be eligible for the presumption under this subsection, a
39 deputy sheriff of Baltimore City, Prince George's County deputy sheriff, or Prince
40 George's County correctional officer, as a condition of employment, shall submit to a
41 medical examination to determine any heart disease or hypertension condition
3 SENATE BILL 557
1 existing prior to the individual's employment as a deputy sheriff of Baltimore City,
2 Prince George's County deputy sheriff, or Prince George's County correctional officer.
3 [(c)] (D) A paid firefighter, paid fire fighting instructor, or a sworn member of
4 the Office of the State Fire Marshal employed by an airport authority, a county, a fire
5 control district, a municipality, or the State or a volunteer firefighter, volunteer fire
6 fighting instructor, volunteer rescue squad member, or volunteer advanced life
7 support unit member who is a covered employee under § 9-234 of this title is
8 presumed to be suffering from an occupational disease that was suffered in the line of
9 duty and is compensable under this title if the individual:
10 (1) has leukemia or pancreatic, prostate, rectal, or throat cancer that is
11 caused by contact with a toxic substance that the individual has encountered in the
12 line of duty;
13 (2) has completed at least 5 years of service as a firefighter, fire fighting
14 instructor, rescue squad member, or advanced life support unit member or in a
15 combination of those jobs in the department where the individual currently is
16 employed or serves;
17 (3) is unable to perform the normal duties of a firefighter, fire fighting
18 instructor, rescue squad member, or advanced life support unit member in the
19 department where the individual currently is employed or serves because of the
20 cancer or leukemia disability; and
21 (4) in the case of a volunteer firefighter, volunteer fire fighting
22 instructor, volunteer rescue squad member, or volunteer advanced life support unit
23 member, has met a suitable standard of physical examination before becoming a
24 firefighter, fire fighting instructor, rescue squad member, or advanced life support
25 unit member.
26 [(d)] (E) (1) A paid law enforcement employee of the Department of Natural
27 Resources who is a covered employee under § 9-207 of this title is presumed to have
28 an occupational disease that was suffered in the line of duty and is compensable
29 under this title if the employee:
30 (i) is suffering from Lyme disease;
31 (ii) was not suffering from Lyme disease before assignment to a
32 position that regularly places the employee in an outdoor wooded environment; and
33 (iii) except as provided in paragraph (2) of this subsection,
34 demonstrates that the employee had any Lyme disease vaccination required or made
35 available to the employee by the Department of Natural Resources.
36 (2) The requirement imposed by paragraph (1)(iii) of this subsection does
37 not apply to an individual who objects to immunization because it conflicts with the
38 individual's bona fide religious beliefs and practices.
4 SENATE BILL 557
1 [(e)] (F) (1) Except as provided in paragraph (2) of this subsection, any paid
2 firefighter, paid fire fighting instructor, sworn member of the Office of the State Fire
3 Marshal, paid police officer, paid law enforcement employee of the Department of
4 Natural Resources, deputy sheriff of Montgomery County, deputy sheriff of Baltimore
5 City, deputy sheriff of Prince George's County, or Prince George's County correctional
6 officer who is eligible for benefits under subsection [(a),] (b), (c), [or (d)] (D), OR (E) of
7 this section shall receive the benefits in addition to any benefits that the individual is
8 entitled to receive under the retirement system in which the individual was a
9 participant at the time of the claim.
10 (2) The benefits received under this title shall be adjusted so that the
11 weekly total of those benefits and retirement benefits does not exceed the weekly
12 salary that was paid to the paid law enforcement employee of the Department of
13 Natural Resources, firefighter, fire fighting instructor, sworn member of the Office of
14 the State Fire Marshal, police officer, deputy sheriff, or Prince George's County
15 correctional officer.
16 (G) THE PRESUMPTIONS OF COMPENSABILITY UNDER THIS SECTION DO NOT
17 APPLY TO AN EMPLOYEE WHO HAS BEEN RETIRED FOR MORE THAN 5 YEARS FROM
18 THE EMPLOYMENT THAT THE EMPLOYEE ALLEGES IS THE CAUSE OF THE DISEASE.
19 SECTION 2. AND BE IT FURTHER ENACTED, That it is the intent of the
20 General Assembly that the provisions under § 9-503 of the Labor and Employment
21 Article concerning workers' compensation presumptions should not be construed to
22 preclude an expert witness from testifying about the cause of the disease solely
23 because the expert witness does not accept the basis for the statutory presumption.
24 SECTION 3. AND BE IT FURTHER ENACTED, That this Act shall take effect
25 October 1, 2004.
Bill:
http://mlis.state.md.us/pdf-documents/2004rs/bills/sb/sb0557f.pdf