Maryland Court of Special Appeals Defines the Appropriate Damages Calculation for Hearing Loss as an Occupational Disease

Montgomery County, Maryland v. Anthony G. Cochran and Andrew Bowen, Court of Special Appeals of Maryland, November 1, 2019

            This past November, the Court of Special Appeals of Maryland provided some much-needed clarity on the proper way to calculate a worker’s occupational hearing loss in its decision in Montgomery County, Maryland v. Anthony G. Cochran and Andrew Bowen.

            Anthony Cochran and Andrew Bowen were firefighters in Montgomery County for over thirty years and had developed hearing loss from their repeated exposure to loud noises associated with their job. After retiring, Cochran and Bowen both filed claims for workers’ compensation benefits for occupational deafness. Mr. Bowen’s claim also included his development of tinnitus—ringing in the ears.      

     

            In 2015, two years after retiring, Mr. Cochran underwent an audiogram which showed demonstrable hearing loss in both ears. Mr. Cochran then underwent a second audiogram in 2016 which showed less overall hearing loss than the 2015 audiogram. Relying on the 2015 audiogram, the Workers’ Compensation Commission entered an order finding that Mr. Cochran had sustained an occupational disease of hearing loss. The Commission also found that Mr. Bowen had sustained an occupational disease of hearing loss and awarded him compensation for a permanent partial disability based on the loss of the use of both of his ears due to his tinnitus. The County appealed these decisions to the Circuit Court of Montgomery County which affirmed the Commission’s orders. The County then appealed to the Court of Special Appeals claiming that the Commission erred by: 1) using the 2015 audiogram to determine Mr. Cochran’s occupational deafness as opposed to the more recent 2016 audiogram; 2) erroneously calculating both claimants’ total average hearing loss; and 3) awarding Mr. Bowen permanent partial disability benefits for tinnitus.

            The Court of Special Appeals held that the Commission did not err in using the 2015 audiogram as opposed to the 2016 audiogram. Labor and Employment Code § 9-650 provides that “the average thresholds in hearing shall be calculated by: adding together the lowest measured losses in each of the 4 frequencies….” The Court of Special Appeals determined that this section did not reference multiple or alternative audiograms, but rather provided that when multiple measurements are taken within one test, the measurement showing the lowest amount of hearing loss should be used.  

Next, the Court held that the Commission did not err in calculating the men’s total average hearing loss. The Maryland Labor and Employment Code provides that when calculating a claimant’s total average hearing loss, one-half of a decibel shall be deducted for every year of the employee’s age after 50 until the time of his/her last exposure to the industrial noise. In calculating Mr. Cochran and Mr. Bowen’s total average hearing loss, the Commission therefore deducted one-half of a decibel for each year between each of their 50^th birthdays and the date they retired. The County believed this was an error and argued that under the statute, one-half of a decibel should be deducted for each year between the worker’s 50^th birthdays and the time of his/her respective audiogram. In support of this argument, the County claimed that the term “industrial noise” includes all loud noises which individuals are exposed to every day. The Court rejected this argument stating that if such an interpretation were true, there would never be a “last exposure to industrial noise” and held that the term only referred to harmful noise in the workplace.

Finally, the Court found that the Commission’s award to Mr. Bowen for permanent partial disability based on his tinnitus was an error. In so holding, the Court determined that tinnitus does not fall within the category of occupational deafness, but rather, is an occupational disease which requires a showing of disablement in order to recover damages. The Court noted that the plain language of the statute outlining occupational deafness does not make any mention of tinnitus. As such, without a contrary intent by the Maryland General Assembly, tinnitus must be analyzed as an ordinary occupational disease requiring Mr. Bowen to show that he had suffered a “disablement,” which he failed to do.

            This decision provides much needed clarity on the proper calculation for hearing loss under the highly technical and complex statutory scheme of workers’ compensation benefits.

-Jordan Kramer, Law Clerk