Ces Card Establishment Services, Inc. v. Doub

656 A.2d 332, 104 Md. App. 301, 1995 Md. App. LEXIS 70
CourtCourt of Special Appeals of Maryland
DecidedApril 3, 1995
DocketNo. 1026
StatusPublished
Cited by6 cases

This text of 656 A.2d 332 (Ces Card Establishment Services, Inc. v. Doub) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ces Card Establishment Services, Inc. v. Doub, 656 A.2d 332, 104 Md. App. 301, 1995 Md. App. LEXIS 70 (Md. Ct. App. 1995).

Opinion

SALMON, Judge.

Appellants, CES Card Establishment Services, Inc. (CES) and Atlantic Mutual Insurance Company (Atlantic Mutual), challenge a decision of the Circuit Court for Washington County granting summary judgment in favor of appellees, Cynthia L. Doub (Ms. Doub), Citicorp Credit Services, Inc. (Citicorp), and Planet Insurance Co. (Planet). On appeal, appellants present three issues, which we have rephrased and condensed to one:

Whether, for purposes of assigning liability to a particular employer in an occupational disease case pursuant to § 9-502(b) of the Labor and Employment Article, the date of last injurious exposure may follow the date upon which the claimant became disabled from the disease.

We shall answer “no,” for reasons hereinafter explained, and remand the case to the circuit court for further proceedings.

BACKGROUND

On October 23, 1992, Cynthia L. Doub filed a claim with the Workers’ Compensation Commission (WCC) alleging that she had developed an occupational disease, carpal tunnel syndrome, arising out of her work as an input/output clerk. The chronology of events leading up to the claim, as shown by [305]*305the record, is not disputed.1

At a hearing held before WCC Commissioner Richard Teitel on May 19, 1993, Ms. Doub testified that her job involved processing the incoming mail, which included “keying it on the system.” She stated that she first began experiencing tingling and numbness in her hands in November of 1990. On November 19, 1990, Ms. Doub visited Dr. Guedenet, who diagnosed her with tenosynovitis2 of the right hand and advised her to take three days off from work. Ms. Doub testified that, after taking the three days off, she returned to work, and worked thereafter for four months without problems. She went back to see Dr. Guedenet on June 7, 1991, however, after she again began experiencing pain in her right hand. At that time, Dr. Guedenet diagnosed tendinitis,3 and Ms. Doub again took three days off from work.

Ms. Doub’s condition again improved temporarily, but the pain eventually resurfaced, and she was diagnosed with right carpal tunnel syndrome on August 21, 1992. She underwent surgery on her right hand on January 25, 1993.

Ms. Doub was employed by Citicorp from January 1986 until July 1, 1992, and Planet was on the risk during that entire period. On July 1, 1992, as a result of a change in ownership, Ms. Doub became employed by CES, and Atlantic Mutual was on the risk from June 15, 1992 through June 15, 1993. Although Ms. Doub initially named appellants as the [306]*306employer and insurer liable to her for her claim, appellants impleaded appellees Citicorp and Planet.

At the WCC hearing, CES and Atlantic Mutual argued that the first date- of disablement was November 19, 1990. Ms. Doub contended that the first date of disablement was September 15,1992. In an Award and Compensation Order dated May 24, 1993, the WCC ruled as follows:

The Commission finds on the issue presented that CES Card Establishment is the correct employer who is insured by Centennial Insurance Company
It is, therefore ... ORDERED that the above named employer and above named insurer pay unto [Ms. Doub], compensation for temporary total disability at the rate of $235.00 payable weekly, on September 15, 1992, on December 15, 1992 and beginning January 25, 1993 and ending March 2, 1993 inclusive....

After their motion for reconsideration was denied by the WCC on June 16, 1993, CES and Atlantic Mutual filed a Petition for Appeal to the Circuit Court for Washington County, contending that “CES is not the employer liable for disability related to the occupational disease of November 19, [307]*3071990, and that, for the purpose of determining liability, claimant was not injuriously exposed last on January 25, 1993.” Citicorp and Planet filed a motion for summary judgment. In their Memorandum of Law in support of the motion, Citicorp and Planet said:

It is undisputed between all parties that the Claimant did have carpal tunnel syndrome and was in fact first disabled on November 19, 1990, while under the employment of Citicorp. However, as will be set forth, the first date of disablement has absolutely no relevance to the issue of which employer is responsible for a claim for an occupational disease.... Rather, the date that the claimant is last injuriously exposed to the hazards of the disease is controlling.

Ms. Doub joined in the motion for summary judgment filed by Citicorp and Planet.

At the hearing on the motion held January 7, 1994, Citicorp conceded, based on its position that the date of disablement had no relevance to determining which employer is liable for a WCC claim, that Ms. Doub was disabled as of November 19, 1990. Ms. Doub did not present an argument at the hearing.

Maryland Code (1991 RepLVol.), § 9-502(b) of the Labor and Employment Article (LE) provides that liability for an occupational disease is imposed on the employer and insurer “in whose employment the covered employee was last injuriously exposed to the hazards of the occupational disease.” Both the WCC and the lower court imposed liability on CES and Atlantic Mutual, pursuant to the WCC’s determination that the date of last injurious exposure occurred on January 25, 1993, when Ms. Doub was working for CES.

Appellants argue, however, that, when applying the rule of last injurious exposure, it is the last injurious exposure occurring prior to the date of disablement that is determinative. In support of this contention, appellants rely on subsection (d) of LE § 9-502:

[308]*308(d) Limitation on liability.—An employer and insurer are liable to provide compensation under subsection (c) of this section only if:
(1) the occupational disease that caused 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 ....

(Emphasis added). In accordance with the above wording, appellants assert that, inasmuch as the first date of disablement in this case was on November 19, 1990 and CES did not employ Ms. Doub until July 1, 1992, appellants cannot be liable for Doub’s claim.

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Bluebook (online)
656 A.2d 332, 104 Md. App. 301, 1995 Md. App. LEXIS 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ces-card-establishment-services-inc-v-doub-mdctspecapp-1995.