240 A.3d 1169
Md.2020Background:
- Anthony Cochran and Andrew Bowen were long‑service Montgomery County firefighters who retired and later underwent audiograms showing binaural hearing loss; Bowen also reported tinnitus.
- Both filed occupational deafness claims under LE § 9‑505; the Commission found occupational disease and awarded medical and permanent partial disability benefits (including 2% for tinnitus to Bowen).
- The Commission calculated the § 9‑650(b)(3) age deduction (½ dB per year over 50) by counting years from each firefighter’s 50th birthday to his retirement date (treated as the "last exposure to industrial noise").
- Montgomery County appealed, arguing the deduction should use the claimant’s age at the date of the audiogram (hearing test) because the statute adjusts for non‑occupational age‑related loss at the time hearing is measured.
- The Court of Special Appeals agreed with the Commission on the deduction but reversed the tinnitus award, holding tinnitus is not covered by the occupational deafness provision and, if separate, required a disablement showing under LE § 9‑502.
- The Court of Appeals granted certiorari and held: (1) "last exposure to industrial noise" means last workplace exposure (retirement date), so the Commission’s deduction method was correct; and (2) the Court of Special Appeals erred to reverse the tinnitus award because the disablement question was not before that court (the County had not appealed the earlier compensability finding).
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper date to calculate §9‑650(b)(3) age deduction ("time of the last exposure to industrial noise") | County: use claimant’s age at hearing test; ‘‘industrial noise’’ includes ubiquitous non‑work noise; deduction should reflect age at test. | Cochran/Bowen: "industrial noise" means workplace/occupational noise; use last workplace exposure (retirement date). | Court: "industrial noise" means occupational noise; "last exposure" = last workplace exposure (retirement); Commission’s use of retirement date affirmed. |
| Whether tinnitus award could be set aside because tinnitus must be claimed under §9‑502 (requiring disablement) rather than under occupational deafness statutes | County: if tinnitus is separate from hearing loss, claimant needed to prove disablement under §9‑502 and Commission made no such finding. | Bowen: Commission already found tinnitus compensable in its Jan 2017 order; County did not appeal that finding, so the issue was not before appellate court. | Court: Court of Special Appeals erred — issue of disablement was not before it; Commission’s tinnitus award stands. |
Key Cases Cited
- Green v. Carr Lowery Glass Co., Inc., 398 Md. 512 (Md. 2007) (explains relationship between LE §9‑505 and §9‑650 and that §9‑650 supplies technical criteria for occupational deafness)
- LaBonte v. Elec. Gen. Corp., 454 Md. 113 (Md. 2017) (standards for appellate review of administrative workers’ compensation decisions)
- Yox v. Tru‑Rol Co., Inc., 380 Md. 326 (Md. 2004) (definition of ‘‘disablement’’ for occupational disease cases)
- W.R. Grace & Co. v. Swedo, 439 Md. 441 (Md. 2014) (review limited to whether agency had substantial evidence or misstated law)
- Gang v. Montgomery County, 464 Md. 270 (Md. 2019) (Commission’s continuing jurisdiction to correct awards within statutory time limits)
- Belschner v. Anchor Post Prods., Inc., 227 Md. 89 (Md. 1961) (historical catalyst noted for legislative change to occupational deafness regime)