Lead Opinion
Mаryland Code, § 9-711 of the Labor and Employment Article (LE) requires that a claim for workers’ compensation benefits based on “disablement” resulting from an occupational disease be filed within two years after the date (1) of disablement, or (2) when the employee had actual knowledge that the disablement was caused by the employment. The issue before us is what is meant by “disablement” when the
We shall hold that an occupational deafness disablement occurs when the hearing loss is sufficient to become compensa-ble under § 9-650. A claim for workers’ compensation benefits based on occupational deafness must therefore be filed within two years from the time the hearing loss reaches that level of compensability and the employee has actual knowledge that the loss was caused by his/her employment. As the evidence in this case reveals that, in 1987, petitioner, Arnold Yox, (1) suffered from a hearing loss that was compensable under § 9-650, (2) knew that he suffered a hearing loss, and (3) knew that the hearing loss resulted from his employment, his claim, filed 13 years later, is time-barred under § 9-711.
BACKGROUND
Petitioner worked for respondent, Tru-Rol Company, Inc., for more than 47 years as a press operator. His duties included running the press, tearing down tractors with an air wrench, and using a jack hammer and a vibrator, which he described as a loud piеce of machinery resembling a jackhammer. Throughout his employment, he was exposed to loud noise. At some point, perhaps around 1991, Mr. Yox was given earmuffs to wear. He wore them when working the vibrator but not otherwise.
In September, 1987, Mr. Yox saw Dr. Robert Schwager, an ear, nose, and throat specialist, although there is some discrepancy in their recollections as to why. Dr. Schwager, reading from notes he made at the time, recalled that Yox complained of a hearing loss and throat pain; he made no note of any complaint about a ringing in the ears. Yox said that he consulted Schwager because of a ringing in his ears; he did not recall any throat pain and did not think at the timе that he had a hearing loss, as he could hear the television at home. Dr. Schwager performed or had performed an audiometric test, which revealed a 35.25% hearing loss in the right ear and a 37.75% loss in the left ear. That extent of loss, according to
Because he was not asked to do so, Dr. Schwager did not calculate the binaural impairment in 1987. He told Mr. Yox of the audiometric test results and had him fitted for hearing aids, which Yox said reduced the ringing in his ears when he wore them. Mr. Yox wore the hearing aids at home but did not wear them to work. He acknowledged that he was аware in 1987 that his hearing loss was directly related to his employment. Yox continued to work for Tru-Rol until 1999, when the company closed and he obtained similar work elsewhere. He did not receive any further medical attention until 2000, because his ears “were still working.” In deposition testimony, he indicated that it was not until 1998 that “my ears really left me.” He said that his hearing in 1987 “was going down” but “wasn’t as bad as it is now.”
Mr. Yox returned to Dr. Schwager in June, 2000, after he had begun work for his new employer. From his examination, Dr. Schwager concluded that Yox’s actual hearing loss had worsened since 1987 (33% in the right ear and 38% in the left ear) but that, because in making the necessary calculations for workers’ compensation purposes he had to consider Yox’s age, the binaural hearing impairment for compensation purposes had remained about the same, and, in fact, was a bit less.
In July, 2000, though continuing to work for the new employer as a press operator, Yox filed a workers’ compensation claim against Tru-Rol for occupational disease due to “years exposure to high levels of industrial noise.” To the question, “O/D Date Disablement,” he responded “0/00/0000.” Tru-Rol raised a number of issues in defense, but proceeded only on the § 9-711 statute of limitations. Through counsel, Yox responded that, in 1987, he did not know that he had a disablement that would entitle him to compensation benefits. The Commission determined that his knowledge of disablement was not the test — that the statutory test was whether there was a disablement and whether he knew that he had a
Mr. Yox sought judicial review in the Circuit Court for Baltimore County. After a de novo evidentiary hearing, that court entered an order reversing the Commission. The court acknowledged that the 1987 testing “demonstrated sufficient loss to have been compensable under the standards utilized by the Commission” and that it was clear from Dr. Schwager’s records that a connection between the hearing loss and Yox’s employment was “evident.” The court nonetheless concluded that, because Yox had not lost any time from work and therefore suffered no wage loss or earning impairment, he had not suffered a “disablement” in 1987, or, indeed, in 2000, and that the § 9-711 statute of limitations had not even begun to run, much less expired: “limitations does not even begin to run until the hearing loss gives rise to incapacity to work, as set forth in LE §§ 9-711 and 9-502.”
On Tru-Rol’s appeal, the Court of Special Appeals reversed the Circuit Court judgment, holding that, in an occupational deafness case, limitations begins to run when “the hearing loss becomes compensable under Section 9-505, or when the employee ‘first ha[s] actual knowledge that the disability [i.e., the compensable hearing loss], was caused by the employment.’ ” Tru-Rol v. Yox,
DISCUSSION
In Belschner v. Anchor Post,
It was not until 1939 that the law was amended to provide compensation for injuries arising from occupational disease. See 1939 Md. Laws, ch. 465. In clear contrast to the situation stemming from an accidental injury, however, the 1939 law did not permit compensation for occupational disease unless and until the employee was no longer able to work in the last occupation in which he/she was exposed to the hazards of the disease. That was evident from at least two provisions of the law — one a substantive provision and one a definition. Section 32B, which the 1939 law addеd to art. 101 of the Code, provided compensation for an employee who suffered from a defined occupational disease “and is thereby disabled from performing his work in the last occupation in which he was injuriously exposed to the hazards of such disease____” (Emphasis added). In order to be entitled to compensation under that section, the employee had to be “disabled from performing his work.” The 1939 law also added some new definitions to § 65 of art. 101, among which were definitions of “disablement” and “disability.” New § 65(15) defined “disablement,” for purposes of the newly enacted provisions dealing with occupational disease, as “the event of an employee’s becoming actually incapacitated, either partially or totally, because of an occupational disease, from performing his work in the last occupation in which exposed to the hazards of such disease” and it defined “disability” as “the state of being so incapacitated.” (Emphasis added).
Because an injury arising from an occupational disease was compensable only if the employee became incapacitated from
The 1939 law limited the right to recоver compensation for occupational disease to certain enumerated diseases, mostly poisonings of one kind or another, and hearing loss was not among the listed maladies. It was not until 1951, with the enactment of 1951 Md. Laws, ch. 287, that coverage was provided for all occupational disease. At that point, hearing loss disability became compensable whether it resulted from an accidental injury (a sudden traumatic event) or an occupational disease (repeated exposure to loud noise). Hearing impairment was a scheduled loss, ie., the law then provided for the amount of compensation to be paid for the total loss of hearing in one ear and in both ears. See Maryland Code, art. 101, § 36(b) (1957).
In Belschner, the claim was initially for hearing loss resulting from accidental injury — a spark flying into one of Mr. Belschner’s ears — but it was amended to assert that the disability was the result of an environment of loud noises over a period of time. That made it an occupational disease claim. Belschner worked as a saw operator, and he continued to work at that job even after the claim was amended and while it was litigated. Notwithstanding a stipulation that Belschner suf
We reached that conclusion by examining the two provisions noted above — then § 22(a) of art. 101, allowing compensation for occupational disease only when the employee was “thereby disabled from performing his work in the last occupation in which he was injuriously exposed to the hazards of such disease,” and then § 67(15), defining “disablement,” for purposes of § 22, as “the event of an employee’s becoming actually incapacitated ... because of an occupational disease, from performing his work in the last occupation in which exposed to the hazards of the disease.” Contrasting those statutory requirements for occupational diseases from our holdings with regard to accidental injuries, we held that “the word ‘disability’ means one thing when used in providing compensation for injury caused by an occupational disease but means something different when used in providing compensation for accidental injury.” Belschner, supra,
Because Belschner’s claim was for occupational disease and his hearing loss did not affect his continued employment as a saw operator, the Court held that the loss was not compensable. We treated Belschner’s occupational hearing loss just like any other occupational disease — non-compensable unless the employee was unable to continue working in the occupation that produced the disability. Wе noted at the end of the Opinion that “[i]f there is a need to liberalize the law or change what we think it plainly means, that is a legislative, not a judicial function.” Id. at 95,
The Governor’s Commission to Study Maryland Workmen’s Compensation Laws, created in 1959 to monitor the workers’ compensation law and make recommendations for change, eventually responded to Belschner in its Seventh Report to the Governor, in February, 1967, with a recommendation that the law be amended “to provide for occupational loss of
“[a]t the presеnt time, an employee cannot recover for occupational loss of hearing until he shows a loss of wages, due to court interpretation of the law; and, in many cases, the time elapsed invokes limitations and the employee receives no compensation.”
Id.
A bill recommended by the Commission was introduced into the 1967 session of the General Assembly and was enacted as 1967 Md. Laws, ch. 155. In a new § 25A(a) to art. 101, the Legislature provided that the condition it called “occupational deafness” would be compensated “according to the terms and conditions of this section.” Section 25A then set forth a technical set of criteria for when occupational deafness would be compensable. Essentially, it stated that a hearing loss in excess of 15 decibels in three frequencies (500, 1,000, and 2000 cycles per second) would be compensable. In § 25A(g), the Legislature provided that, notwithstanding any other provision of the article, a claim for scheduled income benefits could not be filed “until the lapse of six full consecutive calendar months after the termination of exposure to harmful noise in employment” and that “[t]he time limitation for the filing of claims for occupational deafness shall not begin to run earlier than the day following the termination of such six months’ period.”
In 1991, as part of the gеneral code revision process, art. 101 was repealed, and its provisions, constituting the workers’ compensation law, were recodified as title 9 of the Labor and Employment Article. The new article split the former provisions between subtitles 5, dealing with the entitlement to compensation, and 6, dealing with benefits. Section 9-502 is the general provision requiring compensation for injuries due to occupational disease. It begins, in subsection (a) by defining “disablement” for purposes of that section (“In this section, ‘disablement’ means ... ”). (Emphasis added). As in the predecessor statutes, the term is defined as “the event of a covered employee becoming partially or totally incapacitated: (1) because of an occupational disease; and (2) from performing the work of the covered employee in the last occupation in which the covered employee was injuriously exposed to the hazards of the occupational disease.” (Emphasis added). The defined term appears only twice in § 9-502, both times in the subsection that provides generally for compensation for injuries arising from occupational disease. As
Section 9-505 deals specifically with occupational deafness— hearing loss due to occupational disease rather than accidental injury. The current version requires an employer to provide compensation “in accordance with this title ” to a covered еmployee for loss of hearing due to industrial noise in the frequencies of 500, 1,000, 2,000, and 3,000 hertz. (Emphasis added).
Section 9-505 says nothing about “disablement.” That is because “disablement,” as defined in § 9-502(a) for purposes of other occupational diseases, is not required as a condition to compensation for occupational deafness. If “disablement,” as so defined, applied to occupational hearing loss claims, as Yox argues and our dissenting colleagues seem to believe, the whole purpose of the 1967 enactment, repealing the decision in Belschner and allowing compensation even when there is no wage loss or impairment, would be negated. As the Crawley court made clear, the Legislature intended to make occupational hearing loss compensable without regard to “disablement” as generally defined.
Section 9-711(a) — the general limitations provision applicable to occupational diseases — provides that “[i]f a covered employee suffers a disablement or death as a result of an occupational disease, the covered employee or the dependents of the covered employee shall file a claim with the Commission within 2 years ... after the date: (1) of disablement or death;
That is not to say that there is no statute of limitations for occupational hearing loss claims. We try to read statutes in harmony, so that all provisions can be given reasonable effect. See Balto. Gas & Elec. v. Public Serv. Comm’n,
The 1967 statute, now spread between § 9-505 and §§ 9-649 through 9-652, provided a different, and entirely rational, definition of “disablement” in occupational hearing loss cases. In place of wage loss or impairment — the objective standard applicable to other occupational diseases — it substituted the specific objective criteria for measuring compensable hearing loss. If a covered employee suffers that degree of hearing loss, he/she is, for purposes of compensation, disabled. That is what “disablement” means in occupational hearing loss
In this case, Mr. Yox undisputably suffered that disablement and had actual knowledge that it was caused by his employment some 13 years before he filed his claim. That is why the claim was properly rejected.
JUDGMENT OF COURT OF SPECIAL APPEALS AFFIRMED, WITH COSTS.
Notes
. That is not an unique provision with respect to hearing loss cases. Similar provisions are found in the workers' compensation laws of Georgia (O.C.G.A.34-9-264(c)), Missouri (Mo.Stat.287.197.7), and South Dakota (S.D. Codified Laws 62-9-12). In 1980, the six-month provision in § 25A(g) was repealed as part of a more general revision of the occupational disease laws. See 1980 Md. Laws, ch. 706. The only explanation found in the legislative files for the deletion of the six-month provision is testimony from a Dr. Grace Ziem, who both practiced occupational medicine and taught it at Johns Hopkins and Baltimore City Hospitals and at OSHA, to the effect that any increase in hearing following termination of exposure to harmful noise is tempo
Dissenting Opinion
Dissent.
Dissenting Opinion by BATTAGLIA, J. which BELL, C.J. and ELDRIDGE, J., join.
I respectfully dissent. Athough the majority concedes that Section 9-711(a) is the general limitations provision applicable to occupational diseases, it declines to apply that section as it is written to occupational hearing loss, an occupational disease, because it does not like the result. Instead, the majority creates its own statute of limitations period for occupational hearing loss claimants. In so doing, the majority ignores the plain language of the statute, declines to adhere to the canon of statutory construction that any uncertainty in the Worker’s Compensation Act should be resolved in favor of the claimant, and usurps the General Assembly’s role in crafting workers’ compensation policy.
As we have often said, when we construe statutes, our goal is to “identify and effectuate the legislative intent underlying the statute(s) at issue.” Derry v. State,
In Maryland, occupational hearing loss is an occupational disease. Belschner v. Anchor Post Products, Inc.,
*340 (a) “Disablement” defined. — In this section, “disablement” means the event of a covered employee becoming partially or totally incapacitated:
(1) because of an occupational disease; and
(2) from performing the work of the covered employee in the last occupatiоn in which the covered employee was injuriously exposed to the hazards of the occupational disease.
In Mayor and City Council of Baltimore v. Schwing,
Although the majority does not discuss Schwing, it does undertake an analysis of Section 9-505 — an analysis that I conclude is faulty. The majority seems to support its contention that occupational hearing loss claims are distinct from other occupational diseases with respect to the limitations period because Section 9-505 instructs that compensation should be provided “in accordance with this title.” The title, in this instance, is Title 9 of the Labor and Employment Article, which codifies the entire Worker’s Compensation Act. If anything, the fact that compensation for occupational hearing loss claimants should be provided “in accordance with this title” weakens the majority’s argument, as the statute of limitations period for occupational diseases is found also in Title 9. See Section 9-711.
Asserting the unsurprising fact that Section 9-505 should be read in accordance with Title 9, the majority then argues that, because Section 9-505 “says nothing about ‘disablement,’” disablement does not trigger the statute of limitations for occupational hearing loss cases. But while the majority is right to say that Section 9-505 says nothing about disablement, the majority neglects to observe that the section says nothing about the statute of limitations either. Rather, it instructs, as the majority points out, that compensation should be provided to claimants “in accordance with this title.” Section 9-711(a) is the statute of limitations period for occupational diseases in Title 9. The fact that it is triggered by disablement does not change how it applies.
Nevertheless, the majority seems to suggest that, because Section 9-505 does not define disablement, disablement simply cannot be part of the statute of limitations period for an occupational hearing loss claim. But, as the intermediate appellate court noted, there are instances when occupational hearing loss prevents people from working,
Furthermore, the fact that the General Assembly deemed it necessary to enact Section 9-505 to allow compensation to occur while the occupational hearing loss claimant continued working does not compel the conclusion that it intended to accelerate the statute of limitations for such claims as well.
In addition, reviewing Sеction 9-505’s legislative history does not reveal any intent on the General Assembly’s part to provide an alternative statute of limitations for occupational hearing loss claimants. In 1967, when the General Assembly
For these reasons, I believe that a plain reading of the statutory provisions at issue, a review of our cases regarding these provisions, and Section 9-505’s legislative history necessitates the conclusion that disablement triggers the statute of limitations for occupational hearing loss. Even if the majority believes the Act is uncertain or ambiguous on this point, however, I also believe we should read the Act’s provisions in favor of the claimant, in conformance with our repeated assertion that “the Workers’ Compensation Act ... should be construed as liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes. Any uncertainty in the law should be resolved in favor of the claimant.” Harris,
The majority creates a separate statute of limitations period for occupational hearing loss claimants. While the majority’s judicially-created statute of limitations may be reasonable policy, it is up to the Legislature to develop workers’ compensation policy — not this Court. Philip Elecs. North America v. Wright,
In conclusion, when the General Assembly enacted Section 9-505, it did so to define when occupational hearing losses becomе compensable, and it did not change the statute of limitations for such claims in any way. Perhaps it should have; perhaps it will. But that is the General Assembly’s prerogative, not ours. We should refrain from imposing our concept of sound workers’ compensation policy in this arena and leave that task to the General Assembly, where it belongs. I dissent.
Chief Judge BELL and Judge ELDRIDGE authorize me to state that they join in this dissent.
. See Number of Nonfatal Occupational Injuries and Illnesses Involving Days Away from Work by Selected Workers and Case Characteristics and Nature of Injury or Illness, All United States, Private Industry, 2001, U.S. Department of Labor, Bureau of Labor Statistics, available at http:// www.bls.gov/data/home.htm (indicating 171 reported cases of employees missing work due to deafness, hearing loss or impairment).
. The General Assembly might have provided more time for occupational hearing loss claimants who are able to continue working because, generally, hearing loss often begins with a slight impairment and gradually worsens over time. See Richard P. Gilbert & Robert L. Humphreys, Jr., Maryland Workers’ Compensation Handbook § 8.13 (2d ed.1993)(describing occupational hearing loss as a "hybrid form of occupational 'disease' ” because, although hearing loss ordinarily occurs over time, it can be caused by an immediate injury as well); 3 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 52.05 (2003)(noting that, given the nature of the disease, individuals suffering from occupational hearing loss often are able to continue to work and to draw wages).
