Listen Up! Maryland Court of Appeals Sets the Record Straight on Occupational Deafness
The Maryland Workers’ Compensation Act allows workers to recover benefits for hearing loss sustained on the job. However, the act also provides for a specific reduction in the measurement for hearing loss to account for natural age-related hearing loss. Specifically, there is a one-half of a decibel deduction for each year of the covered employee’s age over 50 at the time of the last exposure to industrial noise. While this principle seems somewhat straightforward, it can be a bit more complicated.
The Court of Appeals recently revisited this issue and other related issues in Montgomery County, Maryland v. Anthony G. Cochran and Andrew Bowen, 471 Md. 186 (2020). This case involved two Montgomery County firefighters, Anthony Cochran and Andrew Bowen. Both men retired from Montgomery County after serving over 30 years as firefighters. While working, both men were exposed to loud noises, which caused hearing loss and tinnitus. Several years after retiring, Mr. Cochran and Mr. Bowen filed workers’ compensation claims, alleging work-related hearing loss. Mr. Bowen also alleged tinnitus. In support of their claims, both Mr. Cochran and Mr. Bowen presented audiograms performed several years after retirement and demonstrated binaural hearing loss. It should be noted that Mr. Cochran had two audiograms with different results. Both claims were ultimately found compensable, and the benefits were awarded to the claimants. However, Montgomery County took issue with how the statutory reduction in benefits was applied to account for natural age-related hearing loss and which audiogram should be controlling in those calculations. Montgomery County also took issue with the benefits awarded for tinnitus. As a result, Montgomery County initiated an appeal in each case, and both joined together at the appellate level.
The Court of Appeals addressed three issues regarding the calculation of benefits in hearing loss cases. The questions addressed were as follows: (1) Did the commission err by using an earlier-in-time audiogram that showed more hearing loss than the later-in-time audiogram? (2) Did the commission err in determining that the decibels deducted from the total average hearing loss should be calculated by counting the number of years between the date the firefighter turned fifty and the date each firefighter retired? (3) Did the commission err in awarding permanent partial disability benefits to Mr. Bowen for tinnitus as an “unscheduled” or “other cases” loss?
In addressing the first issue, the Court of Appeals found the commission did not err in calculating Mr. Cochran’s total average hearing loss by relying on the results of an audiogram that showed more hearing loss, as opposed to relying on a subsequent audiogram that showed less hearing loss. In support of this decision, the court found that the plain language of the statute does not expressly provide for any parameters as to which audiogram should be used when there are multiple audiogram results.
In addressing the second issue, the Court of Appeals found the commission did not err in calculating the deduction of decibels from the average hearing loss sustained by Mr. Cochran and Mr. Bowen by counting the number of years between each of the firefighter’s 50th birthdays and the dates they retired from service, as opposed to using the post-retirement audiogram as the controlling end date for the deductions. In support of this decision, the court again reviewed the plain language of the statute, which provides that one-half of a decibel of hearing loss is to be deducted for each year of the covered employee’s age over 50 at the time of the last exposure to industrial noise. The court found that the last exposure to industrial noise of Mr. Cochran and Mr. Bowen would have been the date of each firefighters’ respective retirements.
The final issue addressed by the court was whether the commission erred in awarding permanent partial disability benefits to Mr. Bowen for tinnitus as an “unscheduled” or “other cases” loss. As a threshold question and a matter of first impression, the court held that tinnitus should be considered an ordinary occupational disease instead of a part of occupational deafness. With that said, the court found that the commission erred in awarding Mr. Bowen compensation for tinnitus because he alleged it as part of occupational deafness and did not attempt to establish disablement for this condition prerequisite for compensability in an ordinary occupational disease. Occupational deafness does not require a disablement. However, the court went on to say that had Mr. Bowen established a disablement for his tinnitus; there would not have been an error in awarding permanent partial disability benefits for tinnitus as an “other cases” injury pursuant to Labor & Employment § 9-627(k).
There are four takeaways from this case. First, in a situation where there are multiple audiogram results, the statute does not provide any guidance on which audiogram can be used when calculating the claimant’s hearing loss. Second, the end date for the statutory reduction for natural age-related hearing loss is when the claimant was last exposed to industrial noise, not the date of the post-retirement audiogram. Third, tinnitus is considered an ordinary occupational disease and is not a part of occupational deafness. Because of this distinction, the claimant must allege a disablement to recover from tinnitus. Finally, if the claimant is successful in alleging a disablement as a result of tinnitus, this disease is awarded benefits under “other cases” for the purpose of calculating permanent partial disability benefits.
