Supreme Court of Maryland Holds That Financial Advisor Exposed to Mold Cannot Recover Compensation for an Occupational Disease under Md. Code Ann., Labor & Employment § 9-502
10/22/2024
In the Matter of Morgan Stanley and Co. Inc.,
et al. No.
1554, September Term, 2022. Filed: May
30, 2024. Opinion by Graeff, J.
Henry Gundlach was employed as a financial advisor at Morgan
Stanley since 2008. During Mr.
Gundlach’s period of employment with Morgan Stanley, his office was located in
two places, i.e., what he testified/described as one located in Building ‘B’
(for 6.5 to 7 years) and Building ‘A’ (for an additional 3.5 years). In 2012, Mr. Gundlach began to suffer
respiratory problems and a persistent
cough. Mr. Gundlach saw his physician that ordered x-rays in April 2014, which revealed “pulmonary infiltrates.” Mr. Gundlach followed up with a pulmonologist
who researched the cause of Mr. Gundlach’s respiratory problems/persistent
cough. The pulmonologist eventually suggested
that exposure to mold might be the cause and a search of the claimant’s office
confirmed the presence of mold.
On May 29, 2019, Mr. Gundlach filed two claims with the Worker's Compensation Commission; the first alleging he sustained an occupational disease and a
second claim alleging he sustained an accidental injury arguing that he was
exposed to mold in his workplace and consequently developed pneumonitis
(inflammation of the lungs). After a
hearing, the Commission’s order found in favor of claimant ruling that Mr.
Gundlach had sustained an occupational disease of pneumonitis arising out of
and in the course of employment.
[1]
The employer/insurer appealed to the Circuit
Court for Anne Arundel County on the issue of whether Mr. Gundlach’s condition
was related to his employment as a ‘financial advisor’ for Morgan Stanley.
At trial in the Circuit Court, counsel for the employer
argued, inter alia, that ‘pneumonitis is not consistent with exposure that is
attributable to his [Mr. Gundlach] type of employment as a financial
advisor. At trial, Mr. Gundlach
testified that “as a financial advisor, the office was the base of
operations. It is where you are
supervised." Additionally, he testified
that his office was where his desk, records and phone were located, and a lot
of his job was spent conversing with clients on the telephone. However, when Mr. Gundlach was asked “whether
there was anything about his job, itself, the duties of a financial advisor, a
senior vice president, a portfolio manager, that would cause him to have
pneumonitis?” Mr. Gundlach answered
“no”. At the close of all the evidence,
the employer/insurer moved for judgment arguing that as a matter of law, Mr.
Gundlach had not sustained an occupational disease that was compensable under
the Maryland Workers Compensation Act, specifically 9-502(d)(1)(ii). The jury found in favor of the claimant Mr.
Gundlach. The employer/insurer appealed
to the Court of Special Appeals which reversed the ruling of the Circuit Court
reasoning in agreement with the employer/insurer that “occupational diseases are
very specifically limited and circumscribed.
They are a creature completely of statute. Compensation for an
occupational disease is subject to LE §9-502(d), which is a limitation on
liability, and an occupational disease that causes disability is compensable
only if it is due to the nature of the employment or if manifestations of the
disease are consistent with exposure to an agent attributable to the type of
employment.” Basically, there was
nothing about Mr. Gundlach’s job as a financial advisor that was linked to
biologic, chemical or physical agent, or, in this example, mold, even if his
office as a financial advisor tested positive for the presence of mold. "If there was mold in this specific job
(office space), that has nothing to do with Mr. Gundlach’s type of employment."
The Appellate Court discussed examples of
employees that suffered a disease that
is due to the nature of an employment in which hazards of the occupational
disease exist, i.e., degenerative meniscal tears qualified as an occupational
disease as a matter of law because the occupation of a paramedic requires
frequent kneeling and stress in the knee, and these hazards led to the
development of degenerative knee conditions (Black and Decker Corp. V.
Humbert, 189 Md. App. 171, 191 (2009).
Shoulder impingement syndrome was a compensable occupational disease
because repeated overhead arm motions are a hazard inherent in the occupation
of an electrician (see Davis v. Dyncorp, 336 Md. 226, 237 (1994). Mental disease alleged to be the result of
harassment from fellow employees was not an occupational disease because
harassment by fellow employees is not a hazard within the nature of the
employment of a computer data operator (see Lettering Unlimited v. Guy,
321 Md. 305, 308-12 (1990).
The Appellate Court of Maryland reversed the Circuit Court
holding that in order to obtain compensation for an occupational disease in a
worker’s compensation case under Md. Code Ann., Labor & Employment
§9-502(d)(1)(ii), the employee must prove exposure to a biological, chemical or
physical agent that is a distinctive feature of the type of work performed, as
opposed to a specific condition at the
employee’s particular workplace … exposure must be a recognized risk of
employment, it is not enough that the ailment is caused by the specific place
in which the claimant happens to work. (see Dando v. Binghamton Bd. Of Educ.,
490 N.Y.S.2d 360, 361 (N.Y. App. Div.1985).
