For Hearing Loss Claims, the Last Injurious Exposure Rule does not Apply to Insurers

For Hearing Loss Claims, the Last Injurious Exposure Rule does not Apply to Insurers

Pennsylvania Manufacturers Association v. William Cree, et. al.

Claimant William Cree filed a claim with the Workers’ Compensation Commission for binaural hearing loss with a date of disablement of August 31, 2018, noting Prince George’s County as the Employer. 

Prince George’s County impleaded Cree’s prior employers, The Town of Riverdale and the City of Laurel, which they claimed also contributed to Claimant’s hearing loss.  The City of Laurel impleaded Pennsylvania Manufacturers Association (“PMA”), which insured the City during the first half of Claimant’s employment with the City of Laurel.

The Workers’ Compensation Commission held a hearing to determine liability for Claimant’s hearing loss.  At that hearing, PMA argued that it would not be considered the last insurer chronologically of the City, and therefore should be relieved of any liability pursuant to the last injurious exposure rule.  Subsequently, the Commission issued an Order finding that the last injurious exposure rule did not apply to Claimant’s claim, and therefore also finding that all three of Claimant’s employers were liable for Claimant’s hearing loss, as was the insurer, PMA.

PMA initiated an on-the-record appeal in the Circuit Court for Prince George’s County.  The Circuit Court for Prince George’s County affirmed the Commission’s decision.  PMA then initiated an appeal to the Appellate Court of Maryland.  The Appellate Court of Maryland also affirmed the Commission’s decision.

In coming to their decision, The Appellate Court of Maryland looked at the history of the law, and the legislative intent for such laws.  They noted that while the last injurious exposure rule applies to employers and insurers for occupational diseases, it clearly does not apply to employers in hearing loss cases.  The question, then, was whether the last injurious exposure rule applies to insurers of employers in hearing loss cases.

PMA put forth two arguments at The Appellate Court of Maryland: (1) the statutes that deal with hearing loss (Labor and Employment §9-651 and §9-652) do not use the term “insurer” and therefore these provisions do not apply to insurers – only employers; and (2) the statute that deals with the last injurious exposure rule (Labor and Employment §9-502) has two separate paragraphs -  one applying to employer, and one applying to insurers - therefore the last injurious exposure rule applies independently to insurers, even when it does not apply to the employers that they insure. 

The Appellate Court of Maryland was not convinced by either of these arguments.  Instead, noting that there was no indication in the available legislative history that the General Assembly believed that a claim for occupational hearing loss would be subject to the last injurious exposure rule.  Further, the last injurious exposure rule directly contradicts the method for determining liability for a claimant’s hearing loss, and accordingly to Yox v. Tru-Rol Co., 380 Md. 326 (2004), a general provision governing occupational diseases is not controlling when it is inconsistent with the approach that the General Assembly has specified for claims of occupational hearing loss.

- Ashley Bond, Associate