2014 HB 0977

Analysis

Current Law: Workers’ compensation law establishes a presumption of compensable occupational disease to certain public employees who are exposed to unusual hazards in the course of their employment. It is assumed that these injuries or diseases are due to the employee’s work and, therefore, require no additional evidence in the filing of a claim for workers’ compensation. As shown below, generally presumptions are based on particular occupations and their associated health risks.

Type of Personnel/Occupation

Volunteer and career firefighters; fire fighting instructors; fire marshals employed by an airport authority, a county, a fire control district, a municipality, or the State; rescue squad members; and advanced life support unit members

Deputy sheriffs, police officers, and correctional officers in specified jurisdictions

Department of Natural Resources (DNR) paid law enforcement employees, park police officers of M-NCPPC, and certain other employees of M-NCPPC

Under these circumstances, a covered employee is entitled to workers’ compensation benefits in addition to any benefits that the individual is entitled to receive under the retirement system. The weekly total of workers’ compensation and retirement benefits may not exceed the weekly salary paid to the individual.

Although statute is silent on the issue, occupational disease presumptions have long been considered rebuttable presumptions. Two court decisions address the use of “is presumed” in reference to occupational diseases in current law, specifying that the term “without contrary qualification, should be read to be a presumption, although rebuttable, of fact.” (See Board of County Commissioners v. Colgan, 274 Md. 193, 334 A.2d 89 (1975); and Montgomery County Fire Board v. Fisher, 53 Md. App. 435, 454 A.2d 394, aff’d, 298 Md. 245, 468 A.2d 625 (1983). However, the Court of Special Appeals has

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stated that, “after the last injurious exposure to a hazard and the conclusion of employment the nexus between an occupational disease and an occupation becomes increasingly remote.” (See Montgomery County, Maryland v. Pirrone, 109 Md. App. 201, 674 A.2d 98 (1996).)

The Lyme disease presumption for a DNR law enforcement officer applies if the employee did not have the disease prior to assignment to a position that regularly places him or her in an outdoor wooded environment. Chapter 98 of 2008 established a similar occupational disease presumption for a M-NCPPC park police officer who suffers from Lyme disease; however, it only applies while the officer is assigned to a position that regularly places him or her in an outdoor wooded environment and for three years after the last date of such an assignment. Moreover, this M-NCPPC presumption is in place for only seven years, with a scheduled termination date of September 30, 2015.

Chapter 709 of 2009 further extended the occupational disease presumption for Lyme disease to other employees of M-NCPPC who are not park police officers; however, more stringent requirements apply to these other employees. Specifically, such an employee has to (1) have worked for M-NCPPC on a full-time basis (not on a seasonal or intermittent basis) for at least one year prior to filing a claim for workers’ compensation; (2) have been assigned to a position that regularly stationed the employee in an outdoor wooded environment for at least one year; and (3) file the claim by the third anniversary of the last date the employee was in that assignment. This presumption is also temporary, remaining in place for six years and terminating on September 30, 2015.

Background: Workers’ compensation law has long recognized Lyme disease as a compensable occupational disease if the claimant is able to prove that a tick bite causing the disease occurred while he or she was on duty.

Lyme disease is a bacterial disease that is transmitted by the bite of an infected blacklegged tick. Symptoms include fever, headache, fatigue, and skin rash. Left untreated, Lyme disease may spread to the joints, heart, and nervous system. Most cases, particularly those cases diagnosed soon after transmission of the disease, can be effectively treated with antibiotics. Some patients, including those who are not treated in the early stages of the disease, can have persistent or recurrent symptoms and lingering health concerns long after initial treatment.

According to the U.S. Centers for Disease Control and Prevention, there were 1,113 confirmed cases of Lyme disease in Maryland in 2012. Maryland has the tenth highest rate of infection in the nation with 18.9 cases per 100,000 individuals.

Local Fiscal Effect: M-NCPPC is self-insured for workers’ compensation, meaning that all claims are paid directly by the commission rather than through an outside insurer.

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Thus, M-NCPPC expenditures increase because the commission may no longer deny tick bite or Lyme disease claims for park police officers if the specified conditions are met.

M-NCPPC reports an increase in cases and claims related to tick bites and Lyme disease after the occupational disease presumption for park police officers went into effect on October 1, 2008. As illustrated in Exhibit 1 below, in the five-year period prior to this presumption, there were 10 tick bite claims and only 1 Lyme disease claim. After the presumption, the number of tick bite claims and Lyme disease claims increased substantially. M-NCPPC advises that the only occasion in which it denied claims related to tick bites and Lyme disease before the presumption took effect was when claimants did not submit medical documentation. Additionally, M-NCPPC reports that the single case of Lyme disease that occurred prior to the presumption is a particularly severe case compared to those accepted after the presumption was established, explaining why the costs are greater in the period before the presumption took effect, despite the different amount of total cases.

The costs below represent only those cases that began in each five-year period. Due to the long-term nature of the effects of the disease, expenditures for individual cases may continue to rise as follow-up and additional treatments become necessary for long-term disability benefits and payments. The expenditure increase due to making the presumption permanent is unpredictable and depends on the number and severity of future cases of Lyme disease.

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Exhibit 1

Park Police Workers’ Compensation Claims for Tick Bites and Lyme Disease Comparison of Claims Experience

Before and After Effective Date of Presumption

(October 1, 2008)

Tick Bite Claims

Bite Claims Accepted

Bite Claims Denied

Bite Claims with No Medical Cost

Average Tick Bite Claims Per Year

Lyme Disease Confirmed Claims Confirmed Cases Accepted Confirmed Cases Denied

Average Lyme Claims Per Year

Payouts to Date

For All Tick Claims For Lyme Claims Only

43 330% 53 23 475% 24 0 -100% 2 20 400% 24 8.6 330% 5.3

4 300% 5 4 300% 5 0 0% 0 0.8 300% 0.5

Notes: “Claims Experience” reflects date of first report of injury “Payouts to Date” cannot capture future claims activity based on additional payments for claims that remain open or claims that are for these existing claims are likely to grow over time. Lyme Claims

Source: Maryland-National Capital Park and Planning Commission

filed by claimant, regardless of payment dates. an initial occurrence; thus, they do not reflect re-opened for further treatment. Actual payouts

are a subset of Tick Bite Claims.

Before Presumption Effective 2003-2008 10

4

2

4

2

1 1 0 0.2

$43,637 $42,129

After Presumption Effective

2008-2013 Change

10-year Totals

Additional Comments: The bill makes permanent only the occupational disease presumption for park police officers. The presumption for other employees of M-NCPPC under Chapter 709 of 2009 still expires on September 30, 2015.

$24,990 -43% $22,725 -46%

$68,628 $64,854

Prior Introductions: None.

Cross File: None. HB 977/ Page 5

Additional Information

Information Source(s): Chesapeake Employers Insurance Company, Maryland-National Capital Park and Planning Commission, Montgomery and Prince George’s counties, Workers’ Compensation Commission, U.S. Centers for Disease Control and Prevention, Department of Legislative Services

Fiscal Note History: First Reader - March 2, 2014 ncs/ljm

Analysis by: Richard L. Duncan Direct Inquiries to: (410) 946-5510 (301) 970-5510

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