Occupational Disease Must Be a Known Risk to a Particular Profession for Employer to Be Liable in Maryland

July, 2024  | By James S. Maloney

Under the Workers’ Compensation Act, an employee is to be compensated by their employer if they become partially or totally incapacitated due to an occupational disease acquired in the course of their employment. Md. Code, Lab. & Emp. § 9-101(g) defines occupational disease as “a disease contracted by a covered employee: (1) as the result of and in the course of employment; and (2) that causes the covered employee to become temporarily or permanently, partially, or totally incapacitated.”

Furthermore, the employer and insurer are only liable if: 1) the occupational disease that causes the death or disability: (i) is due to the nature of an employment in which hazards of the occupational disease exist and the covered employee was employed before the date of disablement; or  (ii) has manifestations that are consistent with those known to result from exposure to a biological, chemical, or physical agent that is attributable to the type of employment in which the covered employee was employed before the date of disablement; and  2) on the weight of the evidence, it reasonably may be concluded that the occupational disease was incurred as a result of the employment of the covered employee.

The Appellate Court of Maryland recently held, In the Matter of Morgan Stanley & Co. Inc., et al. No 1554 September 2022 that the claimant’s exposure must be a recognized risk of employment and that it is not enough that the ailment is caused by the specific place in which the claimant happens to work.

For an employer to be liable under an occupational disease claim the employee must show that the disease is a known risk of the particular profession. The employee cannot win by merely producing evidence that a particular workspace was exposed to this disease. The employee must show that all or most workspaces in the particular profession are prone to the disease. This standard places a higher burden on employees and a lower burden on employers.  

The claimant worked for Morgan Stanley for 11 years as a financial advisor. During the first four years of his employment, he started developing respiratory problems, which eventually turned into pneumonitis. The employer conducted testing in the claimant’s office and confirmed that there was visible mold growing in the claimant’s office. The employer permitted the claimant to work from home, and his symptoms improved. However, he then found out he needed a possible lung transplant.

He filed two claims alleging an occupational disease and accidental injury. The Commission issued an order finding that the claimant had “not sustained an accidental injury arising out of his employment” but did “sustain an occupational disease of pneumonitis arising out of and in the course of employment.” 

The decision was appealed to the Circuit Court for Anne Arundel County. The issue in front of the court was whether  the claimant’s condition was attributable to his employment as a financial advisor. The court found the claimant’s condition to be attributable to his employment and that it was up to the jury to determine whether  the claimant’s pneumonitis was an occupational disease.

The jury returned a verdict in favor of the claimant, finding that “he had sustained an occupational disease of pneumonitis due to his employment as a financial advisor for [the employer].”

His employer  filed a petition to the Appellate Court of Maryland.  The issue for the court to decide was what does the Act mean when it limits  compensation to diseases that result from exposure to an agent attributable to the “type of employment.”

It was the employer’s position that there was no occupational disease because there was no evidence that the employment of a financial advisor is likely to cause pneumonitis and that financial advisors are not prone to getting pneumonitis.

The claimant argued that pneumonitis was attributable to his employment as a financial advisor because “pneumonitis is consistent with exposure to mold that is attributable to the type of employment in which he was engaged, i.e., a financial advisor that works in an office.” In other words, pneumonitis is an occupational disease because it is caused by mold (a biological agent) and a financial advisor must sit in the office to conduct their work.

This decision reiterates that the disease must be a known risk of the particular profession. When faced with a question as to whether the claimant has an occupational disease, STOP and ask yourself, is this condition one that is particular to the profession in which the claimant is employed.

If you have questions about the information in this article, please contact attorney James Maloney at jmaloney@semmes.com.