219 A.3d 122
Md. Ct. Spec. App.2019Background
- Anthony Cochran and Andrew Bowen were long‑service Montgomery County firefighters who retired in 2013 and later filed workers’ compensation claims for occupational hearing loss; Bowen also claimed tinnitus.
- Cochran had two audiograms: a September 23, 2015 test showing greater loss and a May 23, 2016 test showing lesser loss; the Commission relied on the earlier, worse test.
- Bowen’s audiogram (Oct. 13, 2016) showed binaural hearing loss; the Commission found an earlier date of disablement for Bowen, awarded binaural scheduled benefits, and separately awarded a 2% “other cases” impairment for tinnitus.
- The County sought judicial review in Montgomery County circuit court; the circuit court affirmed the Commission decisions; the County appealed to the Court of Special Appeals.
- The central legal questions: (1) whether the Commission must use the lowest or most recent audiogram results when multiple tests exist under LE § 9‑650(b)(2)(i); (2) whether the age‑deduction under LE § 9‑650(b)(3) is measured to the date of the audiogram or to the claimant’s last exposure to industrial noise; and (3) whether tinnitus is compensable as part of occupational deafness or only as an ordinary occupational disease requiring disablement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commission must use the audiogram showing the "lowest" (least) hearing losses among multiple tests when calculating average loss under LE § 9‑650(b)(2)(i) | Cochran: Commission may select the earlier test showing compensable loss; statute’s "lowest measured losses" applies to measurements within a single audiogram, not across different dates. | County: "Lowest measured losses" requires using the lower (less loss) results (May 2016); if condition improved so that later test shows no compensable loss, claim fails. | Held: Court: statute’s "lowest measured losses" governs how to compute the average from measurements within a single audiogram; it does not compel selecting the lowest results across different test dates. Commission did not err in using the earlier audiogram. |
| Whether the age‑deduction (½ decibel per year over 50) under LE § 9‑650(b)(3) is measured to the date of the audiogram or to the claimant’s last exposure to industrial noise | Cochran/Bowen: Deduction measured to the date of last exposure to harmful workplace noise (their retirement dates). | County: Deduction should be measured to date of audiogram; "industrial noise" could encompass nonwork noise so using audiogram date is appropriate. | Held: Court: "last exposure to industrial noise" means last exposure to harmful workplace noise; for these claimants that was retirement. Commission’s calculation using years between 50th birthday and retirement was correct. |
| Whether tinnitus is compensable as occupational deafness under LE §§ 9‑505/9‑650 or only as an ordinary occupational disease (requiring disablement) and how it is classified for permanent partial disability under LE § 9‑627(k) | Bowen/Commission: Tinnitus related to hearing loss and can be compensated (Commission treated tinnitus as an "other cases" unscheduled loss and awarded permanent partial disability). | County: Tinnitus not measurable via § 9‑650 framework; if awarded as occupational deafness it would have to fit within statutory parameters. | Held: Court: Tinnitus is not encompassed by the plain language of LE §§ 9‑505 and 9‑650 (those address measurable hearing loss at specified frequencies). Tinnitus must be treated as an ordinary occupational disease under LE § 9‑502 (which requires disablement). The Commission erred in awarding permanent partial disability for tinnitus because Bowen did not establish disablement. However, classifying tinnitus as an "other cases" loss under § 9‑627(k) was not error in principle—an award could be proper if disablement were proved. |
Key Cases Cited
- Green v. Carr Lowery Glass Co., Inc., 398 Md. 512 (2007) (explains occupational deafness is governed by § 9‑505 and § 9‑650 and may be compensable without disablement)
- Yox v. Tru‑Rol Co., Inc., 380 Md. 326 (2004) (discusses disablement requirement for ordinary occupational diseases under § 9‑502)
- Miller v. Western Elec. Co., 310 Md. 173 (1987) (interpreting "disablement"/incapacity requirement under occupational disease provisions)
- Montgomery County v. Deibler, 423 Md. 54 (2011) (statutory presumption of Commission correctness does not extend to questions of law; legal conclusions reviewed de novo)
- Breitenbach v. N.B. Handy Co., 366 Md. 467 (2001) (Workers’ Compensation Act is not to be strictly construed; courts should give effect to legislative purpose)
- Ralph v. Sears Roebuck & Co., 340 Md. 304 (1995) (distinguishes scheduled vs. unscheduled ("other cases") disability determinations)