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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1367 September Term, 2006

OWEN E. SMITH, JR. v. HOWARD COUNTY, MARYLAND

Sharer , Woodward, Kenn ey, James A, III.., (R etired, specially assigned), JJ.

Opinion by Kenney, J.

Filed: November 6, 2007

In June of 2004, appellant, Owen E. Smith, Jr., a retired 26-year veteran of the Howard County Po lice Department, filed a claim with the Workers' Compensation Commission (the "Comm ission"). Appellee , Howa rd Coun ty, did not file a timely response and the Commission entered an order in favor of Smith. Howard County appealed the Commission's order by requesting a jury trial in the Circuit Court for Howard County. At the close of ev idence, the c ircuit court granted Howard County's motion for judgment. On appeal, w e address th e followin g question s: I. Was sufficient evidence presented to the jury to defeat Howa rd Coun ty's motion for judgmen t? Can a claimant, who prevailed before the Commission on an uncontes ted claim because of the emplo yer's late filing, establish a prima fa cie case for worke r's compensation before a jury in the circuit court based solely on the claimant's victory before the Commission?

II.

For the fo llowing rea sons, we s hall affirm th e judgme nt of the circu it court. FACTUAL AND PROCEDURAL HISTORY On October 14, 1975, Smith began his service with the Howard County Police Departm ent. He graduated from the police academy in 1976 and was immediately assigned to patrol duties. With the exception of a brief assignment in traffic enforcement in 1988, Smith was a patrol officer until his retirement on July 1, 2002. On June 24, 2004, Smith filed a worker's compensation claim with the Commission. He alleged injurie s to his hips and knees from continuously entering and exiting his patrol vehicle over a 26-year period, which was aggravated by the weight of the equipment -1-

routinely carried on his pers on. On the claim form, Smith wrote: "Repeated entering/exiting of police veh icle in perfor mance o f duties, we aring gun belt, ballistic vest, etc. Ov er 26.3 years averaged 800-1 000 entries/exits per month." The stated date of disablement was October 5, 2002.1 Howard County did not file a response and, on August 6, 2004, the Commission issued the following order on Smith's uncontested claim: After due consideration of the ab ove entitled c ase, it is determined that the claimant sustained an accidental injury or occupational disease/illness as defined in Th e Labor and Employment Article, 9-101(b) or (g) Article 101, Sec. 67(6) arising out of and in the course of employment on 10/05/2002 . ... *** It is, theref ore, this d ay, 08/06/2004 by the Workers' Compensation Commission ORDERED that the claim for compensation filed with th is Comm ission in this case by the said claimant against the said employer and insurer be held pending until such time as the nature and extent of the claimant's disability, if any, can be determined. On August 19, 2004, Howard County filed an appeal with the circuit court and requested a jury trial. After both parties presented their evidence, Howard County moved for judgment, pursuant to Maryland Rule 2-519. The court granted H oward County's motion. Judgment was entered on August 23, 2006. Smith filed a notice of appeal on that date. DISCUSSION

1

Other than the claim form, no evidence was submitted to the Commission. -2-

I. The Burden of Production at Trial Smith claims that he suffered an "occupational disease during the course of his employme nt. 2 Under Maryland Code Annotated (1991, 1999 Repl. Vol.),

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