Montgomery Cnty. v. Cochran & Bowen ( 2020 )

Montgomery County, Maryland v. Anthony G. Cochran and Andrew Bowen, No. 69,
September Term, 2019
WORKERS’ COMPENSATION ACT – OCCUPATIONAL DEAFNESS – MD.
CODE ANN., LAB. & EMPL. (1991, 2016 REPL. VOL.) § 9-650(b)(3) ––
CALCULATION OF DEDUCTION FOR “EACH YEAR OF THE COVERED
EMPLOYEE’S AGE OVER 50 AT THE TIME OF THE LAST EXPOSURE TO
INDUSTRIAL NOISE” – COMPENSABLE DISABLEMENT – TINNITUS – Court
of Appeals held that Workers’ Compensation Commission did not err in calculating
deduction of decibels from firefighters’ total average hearing losses under Md. Code. Ann.,
Lab. & Empl. (1991, 2016 Repl. Vol.) (“LE”) § 9-650(b)(3) by counting number of years
between each firefighter’s 50th birthday and dates that they each retired from employment
with Montgomery County, Maryland. Court of Appeals concluded that plain and ordinary
meaning of term “industrial noise” as used in LE § 9-650(b)(3) is occupational noise or
noise encountered in workplace in employment of employer. Thus, phrase “time of [] last
exposure to industrial noise” means date that employee is last exposed to occupational
noise, i.e., date of employee’s retirement, and not date of hearing test measuring hearing
loss.
Court of Appeals also held that, under circumstances of one firefighter’s case, any issue as
to whether firefighter sustained compensable disablement due to tinnitus, i.e., whether
tinnitus is compensable as part of occupational deafness claim or as occupational disease
upon establishment of disablement, was not before Court of Special Appeals. Court of
Appeals thus concluded that Court of Special Appeals erred in considering matter and in
reversing Workers’ Compensation Commission’s award of permanent partial disability
benefits to firefighter for tinnitus on that ground.
Circuit Court for Montgomery County
Case Nos. 423960-V and 442304-V
Argued: September 14, 2020
IN THE COURT OF APPEALS
OF MARYLAND
No. 69
September Term, 2019
______________________________________
MONTGOMERY COUNTY, MARYLAND
v.
ANTHONY G. COCHRAN AND ANDREW
BOWEN
______________________________________
Barbera, C.J.
McDonald
Watts
Hotten
Getty
Booth
Biran,
JJ.
______________________________________
Opinion by Watts, J.
McDonald and Getty, JJ., concur.
______________________________________
Filed: October 26, 2020
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2020-10-26
11:22-04:00
Suzanne C. Johnson, Clerk
Loss of hearing is inherent in many jobs. As one example, firefighters are repeatedly
exposed to loud noise in the form of sirens, air horns, engines, alarms, and the like while
working, which may lead to hearing loss.1 The Maryland Workers’ Compensation Act,
Md. Code Ann., Lab. & Empl. (1991, 2016 Repl. Vol.) (“LE”) §§ 9-101 to 9-1201,
expressly recognizes that loss of hearing may occur on the job due to industrial noise and
makes such hearing loss compensable under certain circumstances. The Workers’
Compensation Act states that an employer shall provide compensation to a covered
employee for loss of hearing due to industrial noise in specified frequencies, also known
as occupational deafness, or for a disability resulting from an occupational disease. See
LE §§ 9-505(a), 9-502(c)(1). Specifically, LE § 9-505(a) states that, “[e]xcept as otherwise
provided, an employer shall provide compensation in accordance with this title to a covered
employee for loss of hearing by the covered employee due to industrial noise in” four
specified frequencies. LE § 9-650 sets forth the formula for calculating total average
hearing loss and LE § 9-650(b)(3) provides for a deduction of the average decibel loss,
stating:
To allow for the average amount of hearing loss from nonoccupational causes
found in the population at any given age, there shall be deducted from the
total average decibel loss determined under paragraphs (1) and (2) of this
subsection one-half of a decibel for each year of the covered employee’s age
over 50 at the time of the last exposure to industrial noise.
Here, Anthony G. Cochran, Respondent, and Andrew Bowen, Respondent/Cross-
Petitioner, were firefighters for Montgomery County, Maryland (“the County”),
1
See, e.g., Randy L. Tubbs, Noise and Hearing Loss in Firefighting, 8 No. 3
Occupational Med. Dig. 9 (Mar. 1996).
Petitioner/Cross-Respondent, for over thirty years. Both Cochran and Bowen developed
hearing loss from exposure to loud noises they repeatedly encountered on the job as
firefighters. Bowen also developed tinnitus, or ringing in the ears. After retiring, Cochran
and Bowen each underwent audiograms, which showed hearing loss in both ears, and each
filed a claim under LE § 9-505 with the Workers’ Compensation Commission (“the
Commission”) seeking compensation for hearing loss and, in Bowen’s case, compensation
for tinnitus, too.
The Commission awarded compensation to both Cochran and Bowen and calculated
the deduction under LE § 9-650(b)(3) by counting the number of years between each man’s
50th birthday and the date of his retirement. The Commission found that Cochran and
Bowen had sustained hearing loss arising in and out of the course of their employment as
firefighters, and that Bowen had also sustained tinnitus arising in and out of the course of
his employment as a firefighter. As to Bowen, later, the Commission awarded Bowen
compensation for a permanent partial disability for bilateral hearing loss and an additional
permanent partial disability of 2% industrial loss of use of the body as a result of tinnitus.
The County filed separate petitions for judicial review in the Circuit Court for
Montgomery County, which affirmed the Commission’s decisions. The County appealed
each case to the Court of Special Appeals, which consolidated the cases. In a reported
opinion, addressing how the deduction set forth in LE § 9-650(b)(3) should be calculated,
the Court of Special Appeals held that the Commission correctly calculated “the deduction
by counting the number of years between each firefighter’s 50th birthday and the dates
they retired from service.” Montgomery Cty. v. Cochran, 243 Md. App. 102, 126, 219
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A.3d 122, 136-37 (2019). The Court of Special Appeals held, though, that the Commission
erred in awarding permanent partial disability benefits to Bowen for tinnitus. See id. at
129, 219 A.3d at 138. Although not a question raised by the County, the Court of Special
Appeals determined that compensation for tinnitus must be determined under LE § 9-502
as an ordinary occupational disease, not under LE § 9-505 as part of occupational deafness.
See id. at 129, 219 A.3d at 138-39. The Court of Special Appeals concluded that, because
Bowen did not establish disablement under LE § 9-502, the Commission erred in awarding
him benefits for tinnitus. See id. at 129-30, 219 A.3d at 139. The Court of Special Appeals
affirmed the circuit court’s judgment in Cochran’s case and affirmed in part and reversed
in part the circuit court’s judgment in Bowen’s case. See id. at 107, 133, 219 A.3d at 125,
141. We granted certiorari to consider the proper date for the calculation of the deduction
under LE § 9-650(b)(3) and whether the Court of Special Appeals erred in reversing the
Commission’s award of permanent partial disability to Bowen for tinnitus. See
Montgomery Cty. v. Cochran, 467 Md. 263, 224 A.3d 601 (2020).
We must decide whether the Commission erred in calculating the deduction set forth
in LE § 9-650(b)(3) by counting the number of years between each firefighter’s 50th
birthday and the dates on which each firefighter retired. Specifically, we must decide
whether the phrase “last exposure to industrial noise” as used in LE § 9-650(b)(3) means
the date that an employee is last exposed to occupational noise at work, i.e., the date of
retirement, or whether it means the date of a hearing test measuring hearing loss. We must
also determine whether the issue of whether Bowen was required to bring a claim for
tinnitus under LE § 9-502, as opposed to under LE § 9-505 as part of his occupational
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deafness claim, was before the Court of Special Appeals, and whether the Court of Special
Appeals erred in reversing the Commission’s award of permanent partial disability benefits
to Bowen for tinnitus.
We hold that the Commission did not err in calculating the deduction of decibels
from Cochran’s and Bowen’s total average hearing losses under LE § 9-650(b)(3) by
counting the number of years between each firefighter’s 50th birthday and the dates that
they each retired from employment with the County. We conclude that the plain and
ordinary meaning of the term “industrial noise” as used in LE § 9-650(b)(3) is occupational
noise or noise encountered in the workplace in the employment of the employer. Thus, the
phrase “time of the last exposure to industrial noise” means the date that an employee is
last exposed to occupational noise, i.e., the date of the employee’s retirement, and not the
date of a hearing test measuring hearing loss. We also hold that any issue as to whether
Bowen sustained a compensable disablement due to tinnitus, i.e., whether tinnitus is
compensable under LE § 9-502 as an occupational disease upon establishment of
disablement and not under LE § 9-505 as part of an occupational deafness claim, was not
before the Court of Special Appeals. The Court of Special Appeals erred in considering
the matter and in reversing the Commission’s award of permanent partial disability benefits
to Bowen for tinnitus. Accordingly, we affirm in part and reverse in part the judgment of
the Court of Special Appeals.
BACKGROUND
Anthony G. Cochran
Cochran was employed as a firefighter by the County for approximately thirty-four
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years. In November 2013, when he was approximately 57 years old, Cochran retired.
Nearly two years later, on September 23, 2015, when he was 58 years old, Cochran
underwent an audiogram, which showed hearing loss in both ears.
On March 21, 2016, Cochran filed a claim with the Commission seeking
compensation for binaural hearing loss. In the claim, Cochran asserted that he developed
hearing loss due to exposure to noise during the many years that he served as a firefighter.
Cochran identified his “Date of accident/occupational disease disablement” as
“09/23/2015[.]” Two months later, on May 23, 2016, Cochran underwent another
audiogram, which also showed some hearing loss in each ear, although to a different and
overall lesser degree than the September 23, 2015 audiogram.
On July 15, 2016, the Commission held an evidentiary hearing. At the hearing,
Cochran testified that he had never worked in a factory and had not worked since his
retirement as a firefighter in 2013. Cochran testified that his only employment was as a
firefighter with the County and, prior to that, as a salesperson for Construction Anchors for
one and a half years. At the hearing, Cochran’s counsel argued that the age that should be
considered for purposes of the deduction set forth in LE § 9-650(b)(3)—the age at the time
of the last exposure to industrial noise—should be the claimant’s age as of the last date of
employment, i.e., the date of retirement. The County’s counsel argued that Cochran’s 2016
audiogram did not show hearing loss meeting the threshold to be compensable, and, in the
alternative, that the age that should be considered for purposes of the deduction should be
the claimant’s age as of the date of a hearing test. At the conclusion of the hearing, with
respect to the deduction set forth in LE § 9-650(b)(3) and the phrase “last exposure to
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industrial noise,” the Commissioner stated:
I’m satisfied that the age comes in for every year after the age of 50 from the
last exposure, industrial exposure. I am of the belief, unless you have some
statutory information to give us of what the intent was when the Act was
passed, when they say industrial noise, I think they’re putting it into the
context of work exposure.
The only exposure this man has testified to for work, which would be
the industrial, is as a fire fighter for Montgomery County.
On July 21, 2016, the Commission issued a compensation order finding that
Cochran had sustained an occupational disease of hearing loss arising out of and in the
course of employment as a firefighter with the County and that the first date of disablement
was September 23, 2015. The Commission found, based on the first audiogram, that
Cochran’s disability is the result of an occupational disease. The Commission thus ordered
the County to pay Cochran’s “causally related medical bills[.]”
The County filed in the circuit court a petition for judicial review and a
memorandum in support of the petition, alleging among other things that LE § 9-650(b)(3)
mandates that the Commission use the employee’s age at the time of a hearing test for the
decibel deduction, rather than the employee’s age at the time of retirement. On April 27,
2018, the circuit court held a hearing. After hearing argument from the parties, the circuit
court affirmed the Commission’s decision, stating in pertinent part:
With respect to the industrial noise piece, I am persuaded that the
Commissioner got it right. In other words, the Commissioner was legally
correct. The phrase industrial noise means noise related to industry, and . . .
it’s quite notable that our Workers’ Compensation Act and statutes derived
from what happened in England in the late 18th and early 19th centuries, and
that’s when the concept of industry and factories was coming into the
nomenclature when England turned from an agrarian society to an industrial
society, and began to experience things like industrial accidents . . . .
So by virtue of the plain meaning of the phrase industrial noise, it’s
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the noise that comes from factories. Now, understanding there’s all kinds of
factories, and technology evolves, it still has to be a factory of some, quote
unquote, factory of some kind, and not somebody’s stereo or they went to a
Ravens game and people cheered loudly. I think the Commissioner got it
right, and it’s not surprising to me that the legislature did not define industrial
noise because it has a common and accepted meaning. They probably would
have said to me, well, why would we have to define it? Everybody knows
what it means[.]
On May 2, 2018, the circuit court entered an order affirming the Commission’s decision.
The County appealed.
Andrew Bowen
Bowen was employed as a firefighter by the County for nearly thirty-five years. In
September 2013, when he was 56 years old, Bowen retired.
On August 17, 2016, Bowen filed a claim with the Commission seeking
compensation for bilateral hearing loss. In the claim, Bowen asserted that he developed
hearing loss due to exposure to loud noise during many years of service as a firefighter.
Bowen identified the “Date of accident/occupational disease disablement” as
“01/24/2005[.]” On October 13, 2016, when he was 59 years old, Bowen underwent an
audiogram, which showed hearing loss in both ears. Bowen also suffers from tinnitus.2
On December 30, 2016, the Commission held a hearing. At the hearing, Bowen
2
Stedman’s Medical Dictionary defines “tinnitus” as:
Perception of a sound in the absence of an environmental acoustic stimulus.
The sound can be a pure tone or noise including (ringing, whistling, hissing,
roaring, or booming) in the ears. Tinnitus is usually associated with a loss of
hearing. The site of origin of the sound percept may be in the central auditory
pathways even if the initial lesion is in the end organ of the auditory system.
Tinnitus, Stedman’s Medical Dictionary (Westlaw database updated Nov. 2014).
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testified that he worked as a paid/salaried firefighter for Montgomery County from 1979
until September 2013, and that he worked as a volunteer firefighter for Prince George’s
County from 1973, as an active volunteer riding fire trucks, until 1998 or 1999, when he
went inactive and transitioned to administrative work. At the hearing, the County’s counsel
raised issues as to apportioning liability between Montgomery and Prince George’s
Counties, and alleged that the date of disablement occurred in the early 1990s and that
Bowen’s claim was barred by the statute of limitations. The County’s counsel conceded
the limitations argument later during the hearing.
On January 19, 2017, the Commission issued a compensation order finding that
Bowen had “sustained an occupational disease of binaural hearing loss and tinnitus arising
out of and in the course of employment” as a firefighter for the County and that the date of
disablement was January 24, 2005. The Commission ordered the County to pay Bowen’s
“causally related medical expenses” and authorized medical treatment in the form of
hearing aids for Bowen. In the compensation order, the Commission stated that Bowen’s
case would be held for further consideration as to whether Bowen had sustained permanent
partial disability and that the case would be reset on request. The County did not request
a rehearing or seek judicial review of the Commission’s disability decision.
Eight months later, on September 27, 2017, Bowen’s counsel filed issues with the
Commission concerning the nature and extent of permanent partial disability due to hearing
loss and tinnitus. On December 5, 2017, the Commission held a hearing on the nature and
extent of Bowen’s hearing loss and tinnitus. Bowen testified that the ringing in his ears is
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constant and affects everything he does.3
The County’s counsel argued that “tinnitus is part of hearing loss, and it’s
compensable under” LE § 9-650, and therefore Bowen’s testimony about his tinnitus was
“not relevant . . . to rating the occupational deafness, which includes tinnitus and hearing
loss, [be]cause tinnitus is a part of hearing loss.” The County’s counsel specifically
acknowledged that a claim of tinnitus falls under LE § 9-505, stating: “[E]ven though
tinnitus is . . . included and captured under the test under [LE §] 9-650; under [LE §] 9-
505, . . . it’s the occupational deafness statute; and under [LE §] 9-627[](d)[(2)](ii)[,] for
bilateral hearing loss[,] it is to the ears, and not to the body as a whole.” Bowen’s counsel
argued that tinnitus was not listed under one of the scheduled losses, and thus by statute
“becomes other cases . . . and it is not subsumed under the hearing loss.”4 The County’s
counsel reiterated “that tinnitus is part of hearing loss, and that it is to the ears and not to
3
The record contains two independent medical evaluations of Bowen. In one, from
Jonathan Gitter, M.D., of Dr. Jeffrey D. Gaber & Associates, P.A., with a visit date of
October 10, 2016, as to tinnitus, Dr. Gitter stated that Bowen “noted problems with his
hearing about 15 years ago and most troubling he developed tinnitus about 10 years ago.”
In Dr. Gitter’s assessment, Bowen suffered from a 16% whole person impairment due to
hearing loss, with 10% of that total due to tinnitus.
In another independent medical examination, conducted by Mark A. Dettelbach,
M.D., of The Feldman E.N.T. Group, P.C., on September 20, 2016, Dr. Dettelbach stated
that, with respect to tinnitus, Bowen “noted tinnitus for the first time around six or seven
years ago when it became bothersome. His tinnitus ranges in severity from mild-to-
moderate.” In an addendum dated December 4, 2017, Dr. Dettelbach opined “that the
tinnitus is part of the hearing loss, and there would be a rating to the ears associated with
it.”
4
In other words, Bowen’s counsel argued that tinnitus is not part of one of the
scheduled losses for hearing loss under LE § 9-627(d)(2), but rather is an unscheduled or
other cases loss under LE § 9-627(k), meaning that the duration of compensation for
permanent partial disability would be determined from the percentage by which the
industrial use of the body is impaired due to the injury.
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the body as a whole[,]” and that since tinnitus is part of hearing loss, “under [LE §] 9-505,
it can only be measured in accordance with [LE §] 9-650, and a doctor’s rating is not
relevant.”
As to the deduction issue, the County’s counsel argued that, under the statute and
case law, “[y]ou . . . use the age at the time of the hearing test, as opposed to the age at the
time that you retired from the job that you’re claiming nature and extent of hearing loss
for.” According to the County’s counsel, industrial noise “is ubiquitous” and everyone is
“exposed to industrial noise as soon as we run a dishwasher, a garbage disposal, a vacuum
cleaner, we walk out on the street [and] hear traffic noise, all of which are industrial noise,
none of which [are] in the statute.” Bowen’s counsel responded that Bowen had not been
exposed to industrial noise since his retirement, i.e., that the deduction should use the age
of retirement, not the age at the time of the hearing test.
On December 15, 2017, the Commission issued an award of compensation, giving
Bowen compensation for permanent partial disability for “14.875% loss of use of [] both
ears (bilateral hearing loss); and a further permanent partial disability under ‘Other Cases’
amounting to 2% industrial loss of use of the body as the result of an injury to the
tinnitus[.]” The Commission awarded compensation in the amount of $257 per week,
beginning January 25, 2005, for a period of 47.1875 weeks, and awarded payment of
medical expenses in the form of hearing aids.
On January 12, 2018, the County filed in the circuit court a petition for judicial
review. The County disputed the Commission’s determination that Bowen sustained a
14.875% loss of use of both ears as well as the determination of permanent partial disability
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under “Other Cases” amounting to 2% loss of use of the body due to tinnitus. In an answer
to an interrogatory as to the facts relied on for the contention that the Commission’s
decision was incorrect, the County stated in relevant part: “The injury was to the ear. The
hearing test was performed on October 13, 2016. The Claimant’s age at the time of the
hearing test was 59. Tinnitus is a form of hearing loss. The AMA Guides rate tinnitus as
an add-on to increase a hearing loss rating.” In an answer to another interrogatory, the
County stated that the issue on appeal was “nature and extent of the occupational deafness
claim and not compensability[.]”
In the circuit court, the parties each filed a motion for summary judgment. On
October 12, 2018, the circuit court held a hearing on the cross-motions for summary
judgment. After hearing argument from the parties, the circuit court granted Bowen’s
motion and denied the County’s motion, thereby affirming the Commission’s decision. As
to the calculation of the deduction under LE § 9-650(b)(3), the circuit court stated:
On the appropriate date to calculate the average hearing loss under
Section 9-650, the Court finds that they need look no further than the plain
language of the statute. . . .
The Court finds that based on the statute, the Commission correctly
deducted as of the last day that the employee worked for the County, not
when he took the test as the County argues. The term industrial noise is given
its ordinary meaning and in the context of worker’s compensation, it doesn’t
mean any noise that a person could be exposed to in his or her ordinary life.
Instead, it means the noise that the person was exposed to on the job.
Therefore, the appropriate date was when the claimant retired, not when he
took the test years later.
As to tinnitus, the circuit court ruled:
[As to] whether the Commission erred in considering the tinnitus
separately and in finding that [Bowen] had suffered further permanent partial
disability under other cases, resulting in a two percent industrial loss of use
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of the body as a result, as the exhibit submitted by [Bowen]’s attorney
indicates, it was clear that . . . Bowen was filing for both.
The County disputes that because the County’s position is that tinnitus
is a part of hearing loss. [LE §] 9-627(k)(1) provides that in all cases of
permanent partial disability not listed in [subs]ections (a) through (j) of this
section, the Commission shall determine a percentage by which the industrial
use of the covered employee’s body was impaired as a result of the accidental
personal injury or occupational disease.
The parties dispute whether tinnitus comes under hearing loss and
whether it can be rated separately. Tinnitus is not listed in . . . subsections
(a) through (j) of the statute and the Commission has apparently never
interpreted the statute as including it under hearing loss. Tinnitus is a ringing
in the ear which may or may not be associated with hearing loss.
The mere fact that tinnitus relates to the ear and hearing loss relates to
the ear does not mean that tinnitus is a part of hearing loss. The statute
doesn’t refer to ear in general as it may refer to arm in general. The
Commission’s interpretation therefore is not clearly erroneous, it does not
conflict with the plain language of the statute and therefore, the Court does
give it deference.
On October 17, 2018, the circuit court entered a written order consistent with its
ruling, denying the County’s motion for summary judgment and granting Bowen’s cross-
motion for summary judgment. The order affirmed the Commission’s decision. The
County appealed.
Opinion of the Court of Special Appeals
The Court of Special Appeals consolidated the two appeals. On November 1, 2019,
the Court of Special Appeals affirmed the circuit court’s judgment in Cochran’s case and
affirmed in part and reversed in part the circuit court’s judgment in Bowen’s case. See
Cochran, 243 Md. App. at 107, 133, 219 A.3d at 125, 141. As to the issue common to both
appeals—whether the Commission erred in determining “that the decibels deducted from
the total average hearing loss under LE § 9-650(b)(3) should be calculated by counting the
number of years between the date the firefighter turned fifty and the date the firefighter
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retired (as opposed to the date the hearing test or audiogram was performed)”—the Court
of Special Appeals held “that the Commission did not err in calculating the deduction by
counting the number of years between each firefighter’s 50th birthday and the dates they
retired from service.” Cochran, 243 Md. App. at 112, 126, 219 A.3d at 128, 136-37. The
Court of Special Appeals disagreed with the County that the phrase “last exposure to
industrial noise” in LE § 9-650(b)(3) means the date of a hearing test. See id. at 127, 219
A.3d at 137. The Court of Special Appeals pointed out that LE § 9-505 uses the terms
“industrial noise” and “harmful noise,” and that the “section does not reference or hint at
any form of noise other than noise to which the employee was exposed on the job.” Id. at
127-28, 219 A.3d at 137-38 (footnote omitted). The Court of Special Appeals held that the
plain and unambiguous language of “LE § 9-650(b)(3) means what it says: the deduction
reflects the number of years between the claimant’s 50th birthday and his [or her] last
exposure to harmful noise at work, even if the audiogram is taken years after that last
exposure.” Id. at 129, 219 A.3d at 138 (footnote omitted).
As to whether the Commission erred in awarding permanent partial disability
benefits to Bowen for tinnitus under LE § 9-627(k) as an unscheduled or other cases loss,
the Court of Special Appeals held that the Commission erred, although for a reason
different than that argued by the County. See Cochran, 243 Md. App. at 112, 129, 219
A.3d at 128, 138. Rather, the Court of Special Appeals held that compensation for tinnitus
must be determined under LE § 9-502 because the plain language of LE §§ 9-505 and 9-
650 does not include tinnitus. See id. at 129, 219 A.3d at 139. The Court of Special
Appeals concluded that, because “Bowen sought compensation for tinnitus as part of his
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occupational deafness claim and did not attempt to establish disablement, the Commission
erred in awarding him benefits for tinnitus.”5 Cochran, 243 Md. App. at 129-30, 219 A.3d
at 139 (cleaned up). The Court of Special Appeals reasoned:
[N]othing on the face of LE § 9-505 or [LE] § 9-650 suggests that the General
Assembly intended workers’ compensation for occupational deafness to
cover anything other than hearing loss measurable by loss of decibels in four
specified frequencies, measured in hertz, that meets the threshold established
by the mathematical formula in LE § 9-650. But we hold nevertheless that
the Commission erred in awarding permanent partial disability benefits to []
Bowen for tinnitus under LE § 9-627(k) because [] Bowen made no showing,
and the Commission accordingly made no finding, that he had a
“disablement,” a prerequisite to workers’ compensation benefits for an
occupational disease under LE § 9-502.
Id. at 132-33, 219 A.3d at 140-41.6
Petition for a Writ of Certiorari and Conditional Cross-Petition
On November 27, 2019, the County petitioned for a writ of certiorari, raising the
following issue:
Did the [Court of Special Appeals] err in holding that, when calculating a
claimant’s hearing loss under LE § 9-650(b)(3), the decibels deducted from
the total average hearing loss should be calculated by counting the number
of years between the date the claimant turned 50 and the date the claimant
5
In its opinion, in a footnote, the Court of Special Appeals reasoned that it could
reach the issue of whether a claim of disablement as to tinnitus must be brought under LE
§ 9-502 because, according to the Court, the County mentioned the argument as an
“alternative” in a footnote in its brief. Cochran, 243 Md. App. at 130 n.15, 219 A.3d at
139 n.15.
6
The Court of Special Appeals also addressed an issue specific to Cochran’s case
concerning whether the Commission erred “in calculating [] Cochran’s average hearing
loss under LE § 9-650(b)(2) by using the results of his initial, earlier-in-time audiogram
that showed more hearing loss than the later-in-time audiogram[.]” Cochran, 243 Md. App.
at 112, 219 A.3d at 128. On that issue, the Court of Special Appeals held that the
Commission did not err in relying on the September 2015 audiogram instead of the May
2016 audiogram in determining Cochran’s entitlement to compensation for occupational
deafness. See id. at 121, 219 A.3d at 134. This issue is not before us.
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retired?
On December 10, 2019, Respondents filed an answer to the County’s petition and
conditional cross-petition, raising the following issue:
Whether the [Court of Special Appeals] erred by reversing a factual finding
of the Commission as to whether [] Bowen suffered a “disablement” given
that 1) the Commission’s factual finding is “presumed to be correct[]”[;] 2)
the issue of whether [Bowen] suffered a disablement was not raised at the
Commission hearing; and 3) there was no evidence put on by the County
before the circuit court to disturb the Commission’s finding.
(Cleaned up). On February 11, 2020, this Court granted the petition and conditional cross-
petition. See Cochran, 467 Md. 263, 224 A.3d 601.
STANDARD OF REVIEW
“In an action for judicial review, this Court reviews the administrative agency’s
decision, not the decision of the circuit court or the Court of Special Appeals.” Elec. Gen.
Corp. v. LaBonte, 454 Md. 113, 131, 164 A.3d 157, 168 (2017) (citation omitted).
[A] court’s role in reviewing an administrative agency adjudicatory decision
is narrow; it is limited to determining if there is substantial evidence in the
record as a whole to support the agency’s findings and conclusions, and to
determine if the administrative decision is premised upon an erroneous
conclusion of law.
W.R. Grace & Co. v. Swedo, 439 Md. 441, 453, 96 A.3d 210, 217 (2014) (cleaned up). As
to workers’ compensation cases, “the decision of the Commission is presumed to be prima
facie correct[.]” LE § 9-745(b)(1). That presumption, however, “does not extend to
questions of law, which this Court reviews independently.” LaBonte, 454 Md. at 131, 164
A.3d at 168 (cleaned up). Pursuant to LE § 9-745(c), a court must “determine whether the
Commission: (1) justly considered all of the facts about the . . . occupational disease . . . ;
- 15 -
(2) exceeded the powers granted to it under this title; or (3) misconstrued the law and facts
applicable in the case decided.” (Paragraph breaks omitted). “This Court gives some
deference to the Commission’s interpretation of the Workers’ Compensation Act unless its
conclusions are based upon an erroneous conclusion of law.” LaBonte, 454 Md. at 131,
164 A.3d at 168 (cleaned up); see also Montgomery Cty. v. Deibler, 423 Md. 54, 60, 31
A.3d 191, 194 (2011) (This Court “afford[s] the Commission a degree of deference, as
appropriate, in its formal interpretations of the Workers’ Compensation Act.” (Citation
omitted)).
Because this case involves statutory construction of the Workers’ Compensation
Act, the principles of statutory construction discussed in LaBonte, 454 Md. at 131, 164
A.3d at 168, are relevant:
The goal of statutory interpretation is to effectuate the General
Assembly’s intent. If the ordinary and natural meaning of a statute’s
language makes the General Assembly’s intent clear, the Court applies the
statute’s language. Because the Workers’ Compensation Act is a remedial
statute, if its language is ambiguous, the Court construes the Act as liberally
in favor of injured employees as its provisions will permit in order to
effectuate its benevolent purposes. Where the Workers’ Compensation Act’s
language is unambiguous, however, the Court may not create an ambiguity
to interpret the Act more favorably to injured employees.
(Cleaned up); see also LE § 9-102(a) and (b) (“This title shall be construed to carry out its
general purpose” and “[t]he rule that a statute in derogation of the common law is to be
strictly construed does not apply to this title.”).
- 16 -
DISCUSSION
I.
The Parties’ Contentions
The County contends that the Commission erred in calculating the deduction from
Cochran’s and Bowen’s total average hearing loss under LE § 9-650(b)(3) by counting the
number of years between the date the firefighter turned 50 years old and the date that each
firefighter retired. The County argues that LE § 9-650(b)(3) requires the Commission to
use a claimant’s age at the time of a hearing test, not the age at retirement, to calculate
hearing loss for purposes of the deduction. The County asserts that LE § 9-650(b)(3)’s
plain language states that its purpose is to allow for the average amount of hearing loss
from nonoccupational causes found in the population at any given age, which means
measuring the age of the claimant at the time of a hearing test, “not dat[ing] it back to a
remote occupational exposure date.”
The County contends that the Court of Special Appeals misinterpreted the word
“industrial” as used in LE § 9-650(b)(3) to conclude that industrial noise means
occupational noise. The County argues that the term “industrial noise” includes noise to
which all people are exposed in daily life, such as “riding the subway system, driving by a
construction site, attending a concert, running a garbage disposal, vacuuming the floor,
flying in a plane, or the like[.]” The County thus maintains that when hearing loss is
measured, to take into account the nonoccupational causes found in the population at any
given age, the deduction must be calculated using the date of the hearing test, which factors
in the aging process that occurred after retirement.
- 17 -
Cochran and Bowen respond that the Commission correctly calculated the
deduction in LE § 9-650(b)(3) by using their ages at the time of retirement. Cochran and
Bowen contend that the phrase “last exposure to industrial noise” means the last time that
a claimant encounters harmful noise at work, not the age of the claimant on the date of a
hearing test. Cochran and Bowen argue that the plain and commonly understood meaning
of “industrial noise” is noise related to a workplace. Cochran and Bowen assert that, had
the General Assembly intended to refer to noise unrelated to the workplace, it would have
used the phrase “last exposure to any noise” or “last exposure to noise” in LE § 9-650(b)(3).
(Emphasis omitted).
Cochran and Bowen maintain that the language of LE § 9-505 confirms that the
term “industrial noise” as used in LE § 9-650(b)(3) means noise in the workplace. Cochran
and Bowen also contend that, contrary to the County’s contention, there is no conflict
between the opening clause of LE § 9-650(b)(3) and the plain meaning of the phrase “last
exposure to industrial noise.” According to Cochran and Bowen, by using the phrase “at
the time of the last exposure to industrial noise[,]” the General Assembly simply “created
a mechanism wherein the age, albeit at the time a claimant was ‘last exposed’ to the harmful
noise of his/her occupation, is taken into consideration.” Cochran and Bowen contend that,
even if LE § 9-650(b)(3) is ambiguous, the Workers’ Compensation Act is to be construed
liberally in favor of injured workers and thus any ambiguity should be resolved in their
favor.
In a reply brief, the County contends that interpreting LE § 9-650(b)(3) as Bowen
and Cochran do would “result[] in an absurdity” because, according to the County, a
- 18 -
firefighter who retires at an older age may not have a compensable claim, whereas a
firefighter who retires at a younger age with less exposure to noise may have a compensable
claim.
Statutory Framework and Provisions
In Green v. Carr Lowery Glass Co., Inc., 398 Md. 512, 516-18, 921 A.2d 235, 237-
38 (2007), this Court discussed the history and statutory framework of the Workers’
Compensation Act related to hearing loss. In particular, we observed that “[w]orkers’
compensation encompasses two main categories of compensable events: accidental
personal injury and occupational diseases.” Id. at 516-17, 921 A.2d at 237 (citations
omitted). “[A]n employee’s hearing loss may fall into either category, depending on
whether the employee experienced a sudden traumatic event or was exposed repeatedly to
loud noises.” Id. at 517, 921 A.2d at 237 (citation omitted).
As we explained in Green, id. at 517, 921 A.2d at 237-38, as originally enacted in
1914, the Workers’ Compensation Act provided compensation only for accidental personal
injuries arising in and out of “the course of employment, and an employee was not required
to show that his or her disability resulted in a loss of wages or earning capacity.” (Citation
omitted). As such, “an employee who suffered the total loss of hearing in both ears due to
a one-time accident that created a loud blast, for example, would have received
compensation.” Id. at 517, 921 A.2d at 238 (citation omitted).7 In 1951, the Workers’
In 1939, the Workers’ Compensation Act “was amended to provide compensation
7
for injuries arising from occupational disease. . . . [T]he 1939 law did not permit
compensation for occupational disease unless and until the employee was no longer able
- 19 -
Compensation Act was expanded to provide compensation for hearing loss as an
occupational disease where the employee showed that he or she was no longer able to work
in the occupation that produced the disability. See Green, 398 Md. at 517, 921 A.2d at 238(citation omitted); see also Yox v. Tru-Rol Co., Inc., 380 Md. 326, 332, 844 A.2d 1151,
1155 (2004).
In 1967, the General Assembly amended the Workers’ Compensation Act to create
a separate provision specifically addressing occupational disease hearing loss, which
“provided that ‘occupational deafness shall be compensated according to the terms and
conditions of this section’ and set forth a testing methodology for determining eligibility
for compensation.” Green, 398 Md. at 517, 921 A.2d at 238 (citations omitted). In enacting
the new provision, the General Assembly’s intent “was not only to provide technical
criteria for measuring occupational loss of hearing but also to make such loss compensable
without regard to inability to work or loss of wages.” Id. at 518, 921 A.2d at 238 (cleaned
up). The new provision thus “provided that an employee may be eligible for occupational
disease compensation due to work-related hearing loss without a showing of disablement,
i.e., loss of wages or inability to perform regular work.” Id. at 518, 921 A.2d at 238(citations omitted).
Decades later, in 1991, as part of the Code revision process, the Workers’
Compensation Act was repealed and recodified as Title 9 of the Labor and Employment
Article of the Annotated Code of Maryland. See id. at 518, 921 A.2d at 238. At that time,
to work in the last occupation in which he/she was exposed to the hazards of the disease.”
Yox v. Tru-Rol Co., Inc., 380 Md. 326, 331, 844 A.2d 1151, 1154 (2004) (citation omitted).
- 20 -
the provisions concerning occupational hearing loss were divided between Subtitle 5,
concerning entitlement to and liability for compensation, and Subtitle 6, concerning
benefits. See id. at 518, 921 A.2d at 238.
In this case, both Cochran and Bowen alleged hearing loss (and, in Bowen’s case,
tinnitus) based on repeated exposure to loud noise in the course of their employment as
firefighters for the County, i.e., an occupational disease, rather than on a sudden traumatic
event. LE 9-101(g) defines “occupational disease” as “a disease contracted by a covered
employee: (1) as a result of and in the course of employment; and (2) that causes the
covered employee to become temporarily or permanently, partially or totally
incapacitated.” (Paragraph breaks omitted).
LE § 9-505 specifically governs a claimant’s right to compensation for occupational
deafness. LE § 9-505(a) states: “Except as otherwise provided, an employer shall provide
compensation in accordance with this title to a covered employee for loss of hearing by the
covered employee due to industrial noise in the frequencies of 500, 1,000, 2,000, and 3,000
hertz.”8 LE § 9-505(b) provides the caveat, though, that “[a]n employer is not liable for
compensation for occupational deafness under subsection (a) of this section unless the
covered employee claiming benefits worked for the employer in the employment that
8
In Yox, 380 Md. at 337, 844 A.2d at 1157-58, we explained “disablement” in
occupational hearing loss cases as follows: “In place of wage loss or impairment—the
objective standard applicable to other occupational diseases—[the Workers’ Compensation
Act] substitute[s] 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.”
- 21 -
exposed the covered employee to harmful noise for at least 90 days.”9
Once a claimant establishes the right to compensation for an occupational disease,
the claimant is eligible to receive benefits. Subtitle 6 of Title 9 of the Workers’
Compensation Act, entitled “Benefits,” governs benefits and consists of several Parts. The
various Parts concern, among other things, general provisions, temporary partial disability,
temporary total disability, permanent partial disability, permanent total disability, and
occupational deafness. Here, the Commission found that Cochran sustained an
occupational disease of hearing loss and ordered the County to pay causally related medical
expenses. Similarly, the Commission found that Bowen sustained an occupational disease
of hearing loss and tinnitus and ordered the County to pay causally related medical
expenses. Additionally, the Commission ordered the County to pay permanent partial
disability benefits to Bowen for his hearing loss and tinnitus.
As to permanent partial disability benefits, Part IV of Subtitle 6, LE §§ 9-625 to 9-
633, governs. LE § 9-627 sets forth the duration of compensation for a permanent partial
9
Generally, LE § 9-502 governs a claimant’s right to compensation for a disability
caused by occupational disease. LE § 9-502(a) defines “disablement” 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.” (Paragraph breaks omitted). See also Miller v. W. Elec. Co.,
310 Md. 173, 187, 528 A.2d 486, 493 (1987) (“Actual incapacity from employment
(whether total or partial) is the test in occupational disease cases[.]” (Citation omitted)).
LE § 9-502(c)(1) and (d) provide that an employer and insurer are liable to a covered
employee “for disability of the covered employee resulting from an occupational disease”
where, among other things, the occupational disease that caused the disability “is due to
the nature of an employment in which hazards of the occupational disease exist” and, “on
the weight of the evidence, it reasonably may be concluded that the occupational disease
was incurred as a result of the employment of the covered employee.”
- 22 -
disability by “prescrib[ing] a schedule of benefits and the ‘weeks’ of compensation for
specific injuries resulting in permanent partial disability” and provides “that all other cases
of permanent partial disability are to be determined from the percentage by which the
industrial use of the body is impaired as a result of the injury.” Montgomery Cty. v.
Robinson, 435 Md. 62, 65, 76 A.3d 1159, 1161 (2013) (footnote omitted). To determine
the duration of permanent partial disability payments for specific injuries, the Commission
must determine the extent of the body part’s disability and then calculate the number of
weeks for which compensation is to be paid. For example, LE § 9-627(d) addresses the
specific injuries of loss of toes other than the great toe, a hand, an arm, a foot, a leg, an eye,
hearing, and a perforated nasal septum. LE § 9-627(d)(2) states: “Compensation shall be
paid for the period listed for: (i) the total loss of hearing of 1 ear, 125 weeks; and (ii) the
total loss of hearing of both ears, 250 weeks.” (Paragraph breaks omitted).
For other cases of permanent partial disability where the injury does not fall under
LE § 9-627(d) or another subsection for a specific injury, LE § 9-627(k) sets forth the
process by which the Commission is to calculate the duration of compensation, which
involves the Commission determining the percentage by which the industrial use of the
body was impaired, taking into consideration the nature of the physical disability, as well
as the age, experience, occupation, and training of the claimant at the time that the
occupational disease or accidental injury occurred. See LE § 9-627(k)(1), (2). The
Commission then determines the number of weeks of compensation to be awarded by
apportioning the loss, using 500 weeks as the base point. See LE § 9-627(k)(3).
As to compensation for occupational deafness, Part VII of Subtitle 6 of the Workers’
- 23 -
Compensation Act—LE §§ 9-649 to 9-652—governs how “[a] covered employee who
suffers from occupational deafness shall be paid compensation[.]” LE § 9-649. LE § 9-
650 “sets forth the criteria for calculating the percentage of hearing loss[.]” Green, 398
Md. at 518, 921 A.2d at 238. LE § 9-650(a)(1) requires that hearing loss “be measured by
audiometric instrumentation” meeting certain specified technical criteria. LE § 9-650(b)
sets forth the mathematical formula used to calculate a claimant’s average thresholds of
hearing in four specific frequencies:
(1) The percentage of hearing loss for purposes of compensation for
occupational deafness shall be determined by calculating the average, in
decibels, of the thresholds of hearing for the frequencies of 500, 1,000, 2,000,
and 3,000 hertz in accordance with paragraph (2) of this subsection.
(2) The average of the thresholds in hearing shall be calculated by:
(i) adding together the lowest measured losses in each of the 4
frequencies; and
(ii) dividing the total by 4.
(3) To allow for the average amount of hearing loss from nonoccupational
causes found in the population at any given age, there shall be deducted from
the total average decibel loss determined under paragraphs (1) and (2) of this
subsection one-half of a decibel for each year of the covered employee’s age
over 50 at the time of the last exposure to industrial noise.
Thus, to calculate the total average decibel loss in an ear, the Commission would look at
the decibel losses in the specified frequencies and divide the total by four. For example:
Frequency (Hertz) 500 1,000 2,000 3,000
Decibel Loss 25 30 35 30
The total decibel loss is 120 (25 + 30 + 35 + 30). Dividing that total of 120 by 4 gives an
average decibel loss of 30 for that ear. Then, taking into account the deduction of LE § 9-
- 24 -
650(b)(3), the Commission would subtract one-half of a decibel from the average decibel
loss (30 in this example) for each year of the covered employee’s age over 50 at the time
of the last exposure to industrial noise. So, if the covered employee is 57 years old at the
time of the last exposure to industrial noise, the Commission would deduct 3.5 decibels (7
years over age 50 x 0.5) from 30, leading to an adjusted average decibel loss of 26.5 for
the ear in question.
LE § 9-650(c) establishes the minimum level of hearing loss for a compensable
occupational deafness claim and the method to calculate the percentage of compensable
hearing loss, stating:
(1) If the average hearing loss in the 4 frequencies determined under
subsection (b) of this section is 25 decibels or less, the covered employee
does not have a compensable hearing loss.
(2) If the average hearing loss in the 4 frequencies determined under
subsection (b) of this section is 91.7 decibels or more, the covered employee
has a 100% compensable hearing loss.
(3) For every decibel that the average hearing loss exceeds 25 decibels, the
covered employee shall be allowed 1.5% of the compensable hearing loss,
up to a maximum of 100% compensable hearing loss at 91.7 decibels.
LE § 9-650(d) sets forth the formula for calculating the “binaural percentage of
hearing loss[,]” i.e., the percentage of hearing loss relating to both ears, providing:
The binaural percentage of hearing loss shall be determined by:
(1) multiplying the percentage of hearing loss in the better ear by 5;
(2) adding that product to the percentage of hearing loss in the poorer
ear; and
(3) dividing that sum by 6.
- 25 -
LE § 9-650(e)(1) precludes the consideration of whether an amplification device,
e.g., a hearing aid, can improve the employee’s hearing in determining the percentage of
hearing loss and contains additional requirements.10
LE § 9-651 describes the extent of liability for occupational deafness. LE § 9-651(a)
states that, generally,
an employer is liable for the full extent of the occupational deafness of a
covered employee if: (1) the employment of the covered employee by the
employer has contributed to any extent to the occupational deafness of the
covered employee; and (2) the employer otherwise is liable under this section
and [LE] § 9-505[.]
LE § 9-651(b) sets forth a limitation on liability, providing:
An employer is liable only for the part of the deafness attributable to the
employment by the employer if the employer establishes by competent
evidence, including the results of a professionally controlled hearing test, the
extent of the deafness of the covered employee that existed before exposure
to harmful noise in the employment of the employer.
Green v. Carr Lowery Glass Co., Inc.
In Green, 398 Md. at 514, 921 A.2d at 236, this Court held that a claimant was not
10
LE § 9-650(e) provides:
(1) In determining the percentage of hearing loss under this section,
consideration may not be given to whether the use of an amplification device
improves the ability of a covered employee to understand speech or enhance
behavioral hearing thresholds.
(2) (i) In determining a workers’ compensation claim for noise-related
hearing loss, audiologic data shall use both bone conduction and air
conduction results.
(ii) If a conductive loss is present, the bone conduction thresholds for
each ear, rather than the air conduction levels, shall be used to calculate a
claimant’s average hearing loss.
- 26 -
eligible for medical benefits in the form of hearing aids under LE § 9-660 unless he was
eligible for compensation under LE §§ 9-505 and 9-650. We briefly reviewed the history
and statutory framework of the Workers’ Compensation Act as it relates to hearing loss,
including setting forth the provisions of LE §§ 9-505, 9-650, and 9-660 (concerning the
provision of medical services and treatment). See id. at 516-22, 921 A.2d at 237-40. We
concluded that the plain language of LE § 9-505 “establishes minimal requirements for an
occupational deafness claim[,]” “establishes certain frequencies where a loss of hearing
may, in accordance with Title 9, constitute occupational deafness[,]” and “acknowledges
that occupational deafness is an occupational disease, regardless of a person’s inability to
work or loss of wages.” Id. at 524, 921 A.2d at 242 (citation omitted). We observed that
LE § 9-505 “sets forth only general requirements for making an occupational deafness
claim[,]” and “does not provide specific criteria for determining the extent of [] hearing
loss” or how to calculate entitlement to compensation for occupational deafness. Id. at
524, 921 A.2d at 242. Nor does LE § 9-505 expressly state that an employer must “provide
medical benefits to covered employees with hearing loss in the named frequencies.” Id. at
524, 921 A.2d at 242. In short, the plain language of LE § 9-505 does not “independently
establish employer liability for compensation or medical benefits if a covered employee
suffers hearing loss in the identified frequencies[,]” and thus we concluded that “[a]n
employee must also qualify for compensation and benefits under [LE] § 9-650 and [LE] §
9-660.” Id. at 525, 921 A.2d at 242 (emphasis omitted).
As to LE § 9-650, we explained that the statute “provides precise testing procedures
for determining the extent of a worker’s hearing loss.” Id. at 525, 921 A.2d at 242. We
- 27 -
observed that, under LE § 9-650(b)(3), “[t]he threshold of hearing loss that must be met in
[LE] § 9-650 is calibrated such that any hearing loss experienced due to aging is deducted
from the overall calculation of loss.” Id. at 525, 921 A.2d at 242. Pursuant to LE § 9-
650(c)(1), “a covered employee does not have a compensable hearing loss if the average
hearing loss in the four frequency ranges is 25 decibels or less.” Id. at 525, 921 A.2d at
242. We explained that LE § 9-650’s criteria “presumably establish a threshold that is
lower than whatever level of hearing loss constitutes ‘disablement,’ because occupational
hearing loss was meant to be compensable without regard to ‘disablement.’” Id. at 525,
921 A.2d at 243 (citation omitted). Nonetheless, in providing that a claimant must have an
average loss of more than 25 decibels in the specified frequencies, the General Assembly
set a minimum/base threshold for compensation, i.e., the General Assembly “did not set a
threshold such that any hearing loss attributed to work is compensated[.]” Id. at 525-26,
921 A.2d at 243 (emphasis in original).
We concluded that LE §§ 9-505 and 9-650 are complementary sections and that a
claimant must comply with both to be eligible for benefits. See id. at 526, 921 A.2d at 243.
This is so because LE § 9-650 “provides the technical criteria for measuring occupation
hearing loss,” whereas LE § 9-505 does not contain criteria for calculating hearing loss or
accounting for age-related hearing loss because LE § 9-505 “references what is already
established in [LE] § 9-650.” Id. at 526, 921 A.2d at 243. We determined that, because
the claimant had conceded that he was not eligible for compensation under LE § 9-650 and
therefore not suffering occupational deafness, the claimant was not eligible for medical
benefits under LE § 9-660. See id. at 527, 921 A.2d at 243-44.
- 28 -
Analysis
Here, we hold that the Commission did not err in calculating the deduction of
decibels from Cochran’s and Bowen’s total average hearing losses under LE § 9-650(b)(3)
by counting the number of years between each firefighter’s 50th birthday and the dates that
they each retired from employment with the County. We conclude that the plain and
ordinary meaning of the term “industrial noise” as used in LE § 9-650(b)(3) is occupational
noise or noise encountered in the workplace in the employment of the employer. Thus, the
phrase “time of the last exposure to industrial noise” means the date that an employee is
last exposed to occupational noise, i.e., the date of the employee’s retirement, and not the
date of a hearing test measuring hearing loss.
We begin by examining the plain language of LE § 9-650(b)(3). As explained
above, to determine whether a claimant has compensable hearing loss, the Commission
must “add[] together the lowest measured losses in each of the 4 frequencies[,]” LE § 9-
650(b)(2)(i)—“500, 1,000, 2,000, and 3,000 hertz[,]” LE § 9-650(b)(1)—and “divid[e] the
total by 4[,]” LE § 9-650(b)(2)(ii). Then, the Commission deducts from that number “one-
half of a decibel for each year of the covered employee’s age over 50 at the time of the last
exposure to industrial noise.” LE § 9-650(b)(3). Under the plain language of LE § 9-
650(b)(3), the deduction appears fairly straightforward and is calculated by deducting half
of a decibel for each year over the age of 50 “at the time of the last exposure to industrial
noise.” The parties dispute, however, the meaning of the phrase “time of the last exposure
to industrial noise.”
We must construe the plain meaning of the phrase “last exposure to industrial
- 29 -
noise,” and, in particular, what “industrial noise” means. Although neither LE § 9-650 nor
any other statute in the Workers’ Compensation Act defines “last exposure to industrial
noise” or “industrial noise,” from our perspective, it is clear that the plain meaning of the
term “industrial noise” is occupational noise or noise encountered on the job. Indisputably,
what can be gleaned from the plain language of LE § 9-650(b)(3) is that the General
Assembly intended the deduction to be calculated by using the date of the “last exposure
to industrial noise.” The plain meaning of that phrase is that the last exposure to industrial
noise is the last date that an employee encounters occupational noise on the job, i.e., the
employee’s retirement date. On its face, the plain language of the statute suggests nothing
else. A reading of the phrase “last exposure to industrial noise” in no way denotes that the
language means the date of a hearing test, i.e., the words “exposure to industrial noise”
clearly do not mean or even suggest a reference to the date a person takes a diagnostic
hearing test. It would strain logic to conclude that “last exposure to industrial noise”
somehow means the date of a hearing test when LE § 9-650(b)(3) does not reference or
mention the date that a hearing test is performed or otherwise give any indication that the
date of the hearing test is relevant to the calculation of the deduction. Nor does the plain
language of the statute lead to the conclusion that “industrial noise” means loud noises
generally encountered in everyday life, such as vacuuming or driving by a construction
site. One of the first tenets of statutory construction is to accord language its ordinary
meaning. See LaBonte, 454 Md. at 131, 164 A.3d at 168. Here, the plain language of the
statute gives no indication of a meaning other than the plain words—last exposure to
industrial noise. Had the General Assembly intended otherwise, it would have used a term
- 30 -
other than “industrial noise.”
Under the circumstances, though, we think it helpful to briefly examine the “natural
and ordinary meaning” of the term “industrial noise.” Bottini v. Dep’t of Fin., 450 Md.
177, 195, 147 A.3d 371, 382 (2016) (cleaned up). “To ascertain the natural and ordinary
meaning of the term . . . , we look to dictionary definitions as a starting point[,]” as “it is
proper to consult a dictionary or dictionaries for a term’s ordinary and popular meaning.”
Id. at 195, 147 A.3d at 382 (cleaned up). Merriam-Webster defines “industrial,” in relevant
part, as “of or relating to industry[,]” and “one that is employed in industry” or “a company
engaged in industrial production or service[.]” Industrial, Merriam-Webster (2020),
https://www.merriamwebster.com/dictionary/industrial [https://perma.cc/FQ4F-BY8Q].
In turn, “industry” means, in pertinent part, “manufacturing activity as a whole[,]” “a
distinct group of productive or profit-making enterprises[,]” “a department or branch of a
craft, art, business, or manufacture[,]” and “systematic labor especially for some useful
purpose or the creation of something of value[.]” Industry, Merriam-Webster (2020),
https://www.merriamwebster.com/dictionary/industry [https://perma.cc/4YMN-FDWE].
And, generally speaking, “noise” means sound. See Noise, Merriam-Webster (2020),
https://www.merriamwebster.com/dictionary/noise [https://perma.cc/PX8V-8JAG]. At
bottom, these definitions demonstrate that the plain and ordinary meaning of the term
“industrial noise” is noise relating to industry or noise relating to business, manufacturing,
or labor, i.e., noise relating to the workplace or occupational noise. Significantly, nothing
in LE § 9-650(b)(3) or elsewhere in the Workers’ Compensation Act purports to expand
the definition of the term “industrial noise” to mean any and all noise, such as noise
- 31 -
encountered in daily life, or to otherwise indicate that “industrial noise” is unrelated to
noise encountered in the workplace.11
Notably, other parts of the Workers’ Compensation Act addressing occupational
deafness support the conclusion that the plain and ordinary meaning of “industrial noise”
as used in LE § 9-650(b)(3) is occupational noise, i.e., noise encountered on the job. LE §
9-505 defines a claimant’s right to compensation for occupational deafness and refers to
“industrial noise” and “harmful noise.” Specifically, LE § 9-505(a) requires an employer
to compensate a covered employee for loss of hearing “due to industrial noise in the
frequencies of 500, 1,000, 2,000, and 3,000 hertz.” (Emphasis added). And, LE § 9-505(b)
limits the liability of an employer by requiring that the covered employee have “worked
for the employer in the employment that exposed the covered employee to harmful noise
for at least 90 days.” (Emphasis added). LE § 9-505 plainly does not reference or indicate
any form of noise other than the noise to which a covered employee would have been
exposed to while employed by the employer on the job.
Similar to LE § 9-505(b), LE §§ 9-651 and 9-652 use the term “harmful noise” in
11
Although Black’s Law Dictionary does not define the terms “industrial noise” or
“industrial,” it defines “industrial disease” by referring to the definition of the term
“occupational disease,” which means “[a] disease that is contracted as result of exposure
to debilitating conditions or substances in the course of employment. [] Employees who
suffer from occupational diseases are eligible for workers’ compensation.” Industrial
Disease, Black’s Law Dictionary (11th ed. 2019); Occupational Disease, Black’s Law
Dictionary. Black’s Law Dictionary states that “occupational disease” is “[a]lso termed
industrial disease.” Occupational Disease, Black’s Law Dictionary (italics omitted). In
other words, under the Black’s Law Dictionary definitions, the terms “industrial disease”
and “occupational disease” are synonymous in the context of workers’ compensation, and
similarly, we conclude that the terms “industrial noise” and “occupational noise” are
synonymous.
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the context of noise which an employee is exposed to on the job. LE § 9-651(b) limits the
liability of an employer to “the part of the deafness attributable to the employment by the
employer” where the employer establishes “the extent of the deafness of the covered
employee that existed before exposure to harmful noise in the employment of the
employer.” And, LE § 9-652(a) provides that an employer who is liable for the full extent
of a covered employee’s occupational deafness “may implead any other employer in whose
employment the covered employee was exposed to harmful noise.” These sections, like
LE § 9-505(a) and (b), clearly refer only to noise encountered in the workplace in the
employment of the employer. Reading the statutes concerning occupational deafness
together supports the conclusion that the plain meaning of the term “industrial noise” as
used in LE § 9-650(b)(3) is occupational noise or noise encountered on the job. Plainly,
the statute uses the terms “harmful noise” and “industrial noise” to refer to noise a worker
is exposed to on the job. Neither term is used to refer to the date a worker takes a hearing
test.
We are not persuaded by the contention that the opening clause of LE § 9-
650(b)(3)—“[t]o allow for the average amount of hearing loss from nonoccupational
causes found in the population at any given age”—mandates a different meaning of the
term “industrial noise” or the phrase “last exposure to industrial noise.” The plain language
of LE § 9-650(b)(3) makes clear that the purpose for the deduction is as it says—“[t]o allow
for the average amount of hearing loss from nonoccupational causes found in the
population at any given age[,]” i.e., to account for the hearing loss that all individuals
experience as part of the aging process from noise unrelated to the workplace
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(nonoccupational causes). The remainder of LE § 9-650(b)(3) provides the formula the
General Assembly created to implement the deduction—by deducting from the total
average decibel loss “one-half of a decibel for each year of the covered employee’s age
over 50 at the time of the last exposure to industrial noise.” That the General Assembly
intended to account for hearing loss from nonoccupational causes by creating a formula
that requires the Commission to deduct a half of a decibel for every year over the age of 50
that the employee is at the time of the last exposure to industrial noise, i.e., retirement, is
evidenced by the plain language of LE § 9-650(b)(3), and the General Assembly was free
to select this formula. Nothing within the language of the opening clause of LE § 9-
650(b)(3) leads to the conclusion that “last exposure to industrial noise” does not mean the
date of retirement, i.e., the date on which an employee is last exposed to occupational noise
on the job. This Court should not interpret the language of the statute to be other than its
plain meaning because we feel the General Assembly could have done the formula
differently.
Construing the plain language of LE § 9-650(b)(3) to mean that the time of the last
exposure to industrial noise is the date of the employee’s retirement for purposes of the
deduction is consistent with the purpose of the Workers’ Compensation Act to provide a
covered employee compensation for occupational deafness, i.e., hearing loss due to
industrial noise experienced by the employee while in the employment of the employer.
See LE §§ 9-505, 9-649 to 9-652. Moreover, we are not persuaded to construe LE § 9-
650(b)(3) otherwise simply because the County argues that a firefighter who works to an
older age before retirement may not have a compensable claim for occupational deafness,
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but a firefighter who retires at a younger age may have a compensable claim. The County
appears to suggest that the firefighter who retires at a younger age would unfairly receive
compensation (because fewer one-half decibels would be deducted) as opposed to the
firefighter who remains in the job longer until an older age. The Court of Special Appeals
pointed out that the County’s position overlooks the circumstance that the firefighter who
retires at a younger age would not have been receiving benefits from the time of retirement
to the time of the award for occupational deafness. See Cochran, 243 Md. App. at 128,
219 A.3d at 138. Using either the date of retirement or the date of the hearing test as the
date of last exposure to industrial noise will result in a deduction of a decibel amount that
is necessarily dependent upon when the claimant elects either to retire or have a hearing
test. The language of LE § 9-650(b)(3), however, is clear in terms of how the Commission
is to calculate the deduction—the deduction reflects the number of years between the time
the claimant turns 50 and the date of the claimant’s last exposure to industrial noise. Under
the plain language of the statute, the date of an audiogram does not factor into the
calculation of the deduction.12
In our view, just as the Court of Special Appeals determined, the language of LE §
9-650(b)(3) means what it says, and industrial noise plainly means occupational noise or
noise encountered in the workplace. To the extent that the County alleges there is an
Also, “[t]his Court gives some deference to the Commission’s interpretation of the
12
Workers’ Compensation Act unless its conclusions are based upon an erroneous conclusion
of law.” LaBonte, 454 Md. at 131, 64 A.3d at 168 (cleaned up). Although statutory
construction presents a question of law, the Commission’s familiarity with workers
compensation claims may give its reading of the statute some weight.
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inconsistency in LE § 9-650(b)(3) in the opening clause of the subsubsection referring to
the average amount of hearing loss from nonoccupational causes, and the formula for the
deduction unambiguously requiring the Commission to count the number of years between
a claimant’s 50th birthday and the time of the last exposure to industrial noise, any such
inconsistency or ambiguity in the provision must be construed “as liberally in favor of
injured employees as its provisions will permit in order to effectuate [the Workers’
Compensation Act’s] benevolent purposes.” LaBonte, 454 Md. at 131, 164 A.3d at 168(cleaned up).
Because the plain language of LE 9-650(b)(3) is clear and unambiguous, our
analysis could end at this point without resorting to a review of the legislative history. See
Wireless One, Inc. v. Mayor and City Council of Balt., 465 Md. 588, 622, 214 A.3d 1152,
1171 (2019) (“When the statutory language is clear, we need not look beyond the statutory
language to determine the General Assembly’s intent. If the words of the statute, construed
according to their common and everyday meaning, are clear and unambiguous and express
a plain meaning, we will give effect to the statute as it is written.” (Cleaned up)). Although
unnecessary to resort to a review of the legislative history, we observe that our holding
concerning the plain language of LE § 9-650(b)(3) is not contradicted by the legislative
history, i.e., the legislative history does not compel a contrary interpretation.
In 1967, the General Assembly amended the Workers’ Compensation Act to create
a new, separate section—Md. Code Ann., Art. 101 (1957, 1964 Repl. Vol.) § 25A—to
provide for compensation for occupational deafness. See Green, 398 Md. at 517, 921 A.2d
at 235; 1967 Md. Laws 273 (Vol. I, Ch. 155, H.B. 473). The stated purpose of the bill was
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to provide workers’ “compensation benefits for occupational deafness due to industrial
noise, to provide for the manner of determining loss of hearing caused by such
employment, to provide for the filing of claims, to allocate liability for such occupational
deafness among employers and to relate to occupational deafness and compensation
therefor.” 1967 Md. Laws 273. The language of the purpose paragraph makes clear that
occupational deafness due to industrial noise is hearing loss caused by employment, i.e.,
that industrial noise is occupational noise or noise encountered in employment.
What is now LE § 9-650(b)(3) was originally codified as Md. Code Ann., Art. 101
(1957, 1964 Repl. Vol.) § 25A(f), which referred to “industrial noise” and provided:
Before determining the percentage of hearing impairment, in order to allow
for the average amount of hearing loss from non-occupational causes found
in the population at any given age, there shall be deducted from the total
average decibel loss, one half (½) decibel for each year of the employee’s
age over forty at the time of last exposure to industrial noise.
1967 Md. Laws 274. Md. Code Ann., Art. 101 (1957, 1964 Repl. Vol.) § 25A used the
terms “industrial noise” and “harmful noise” in various provisions. See 1967 Md. Laws
273-74.
Decades later, in 1991, as part of the Code revision process, the Workers’
Compensation Act was repealed and recodified as Title 9 of the Labor and Employment
Article. See Green, 398 Md. at 518, 921 A.2d at 238; 1991 Md. Laws 250 (Vol. I, Ch. 8,
H.B. 1), 764 (Vol. II, Ch. 8, H.B. 1). At that time, what was Md. Code Ann., Art. 101
(1957, 1985 Repl. Vol., 1990 Supp.) § 25A(f) became Md. Code Ann., Lab. & Empl.
(1991) (“LE (1991)”) § 9-650(b)(3) and provided:
To allow for the average amount of hearing loss from nonoccupational causes
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found in the population at any given age, there shall be deducted from the
total average decibel loss determined under paragraphs (1) and (2) of this
subsection one half of a decibel for each year of the covered employee’s age
over 40 at the time of the last exposure to industrial noise.
1991 Md. Laws 896. The Revisor’s Note states that LE (1991) § 9-650 was “new language
derived without substantive change from former Art. 101, § 25A(c) through (f) and (i).”
Id. The Revisor’s Note also states: “In subsection (b)(3) of this section, the former phrase
‘[b]efore determining the percentage of hearing impairment’, [was] deleted as surplusage.”
Id. (alteration in original). The term “industrial noise” and the phrase “at the time of the
last exposure to industrial noise” remained unchanged in the recodified statute.
Since 1991, what is now LE § 9-650 has been amended only once. In 2000, Md.
Code Ann., Lab. & Empl. (1991, 1999 Repl. Vol.) §§ 9-650 and 9-505 were repealed and
reenacted with amendments. See 2000 Md. Laws 2274 (Vol. IV, Ch. 417, H.B. 827). At
that time, the age referenced in what is now LE § 9-650(b)(3) was raised from 40 to 50 so
that the subsection provides that one-half of a decibel is to be deducted “for each year of
the covered employee’s age over 50 at the time of the last exposure to industrial noise.”
Id. at 2275 (deleted text omitted). What is now LE § 9-650(b)(3) has remained the same
since then.
What can be ascertained from this legislative history is that the General Assembly
intended for the Commission to calculate the deduction set forth in LE § 9-650(b)(3) by
counting the number of years between a claimant’s 50th birthday (originally 40th birthday)
and the time of the last exposure to industrial noise. There is no mention or hint of last
exposure to industrial noise meaning a hearing test in any version of the statute. As
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discussed above, the plain meaning of LE § 9-650(b)(3) is clear and the legislative history
does not lead to the conclusion that industrial noise means anything other than occupational
noise. Applying the plain language of LE § 9-650(b)(3) to the circumstances of this case,
we are convinced that the Commission properly concluded that Cochran’s and Bowen’s
last exposure to industrial noise was the date that each firefighter retired and correctly
calculated the deduction set forth in LE § 9-650(b)(3) by counting the number of years
between each man’s 50th birthday and the date of retirement. Accordingly, we affirm the
judgment of the Court of Special Appeals as to this issue concerning both Cochran and
Bowen.
II.
The Parties’ Contentions
Bowen contends that the Court of Special Appeals erred in reversing the
Commission’s factual finding in its January 2017 order—that he sustained a compensable
disablement as a result of tinnitus—because the issue was not raised by the County on
appeal and thus was not before the Court. Bowen contends that the Commission’s
December 2017 order from which the County appealed concerned the extent of permanent
partial disability only and not the issue of compensability, i.e., disablement, which was
established by the January 2017 order, from which the County did not appeal. Bowen
asserts that the Workers’ Compensation Act does not require a claimant to relitigate the
compensability of the claim in later proceedings on different issues when no issue as to
compensability has been raised on appeal. Bowen maintains that the Court of Special
Appeals erred both because it lacked jurisdiction to reverse a factual finding by the
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Commission on an issue not part of the appeal and because it failed to recognize that the
issue of whether there was a disablement was not preserved for appellate review given that
the County failed to raise an issue or otherwise challenge the January 2017 order on the
point.
The County responds that the Court of Special Appeals did not err in finding that
Bowen was required, but failed, to establish disablement due to tinnitus under LE § 9-502
as an ordinary occupational disease. The County acknowledges that it did not appeal the
January 2017 order finding a disablement for hearing loss and that its position was that
tinnitus was part of hearing loss. The County contends, though, that because the Court of
Special Appeals concluded that tinnitus is separate from hearing loss, the Commission was
required to make a finding of disablement under LE § 9-502, which it did not. The County
maintains that “[t]he issue requiring a showing of disablement for tinnitus was outlined in
a lengthy footnote in all appellate briefs and argued at the circuit court.”
In a reply brief, Bowen reiterates that the County never appealed or otherwise
challenged the Commission’s January 2017 order finding disablement due to tinnitus.
Bowen argues that the issues of disablement and the extent of permanent partial disability
are not the same, as the issues are governed by separate statutes, involve different
standards, and, in this case, were decided at separate hearings. Bowen asserts that the
Commission does not redetermine compensability each time it holds a hearing on a new
issue.
Law
LE § 9-726(a) provides that “a party may file with the Commission a written motion
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for a rehearing” within fifteen days after the date of the Commission’s decision, and,
pursuant to LE § 9-726(d)(3), “[t]he Commission may grant a motion for rehearing only
on grounds of error of law or newly discovered evidence.”
LE § 9-737 authorizes judicial review of the Commission’s decisions. LE § 9-
737(1) provides, in relevant part, that “[a]n employer, covered employee, . . . or any other
interested person aggrieved by a decision of the Commission, . . . may appeal from the
decision of the Commission provided the appeal is filed within 30 days after the date of the
mailing of the Commission’s order by” “filing a petition for judicial review[.]” The Court
of Special Appeals has stated that, although “[t]he authority of a reviewing court in
compensation cases is broader than in most other administrative appeals[,] that authority
does not extend beyond the matters actually presented in the petition [for judicial review].”
Mayor and City Council of Balt. v. Bowen, 54 Md. App. 375, 382, 458 A.2d 1242, 1247
(1983) (citations omitted).
LE § 9-736(a) provides the Commission with the authority to readjust the rate of
compensation under certain circumstances, providing:
If aggravation, diminution, or termination of disability takes place or is
discovered after the rate of compensation is set or compensation is
terminated, the Commission, on the application of any party in interest or on
its own motion, may:
(1) readjust for future application the rate of compensation; or
(2) if appropriate, terminate the payments.
And, LE § 9-736(b) provides for continuing jurisdiction of the Commission and authorizes
the Commission to modify its findings as follows:
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(1) The Commission has continuing powers and jurisdiction over each claim
under this title.
(2) Subject to paragraph (3) of this subsection, the Commission may modify
any finding or order as the Commission considers justified.
(3) Except as provided in subsection (c) of this section, the Commission may
not modify an award unless the modification is applied for within 5 years
after the latter of:
(i) the date of the accident;
(ii) the date of disablement; or
(iii) the last compensation payment.
In LaBonte, 454 Md. at 143, 164 A.3d at 175, we observed that, “[u]nder LE § 9-
736(b), the Commission is not bound to follow its previous awards and orders; to the
contrary, the Commission has the express authority to modify the same.” And, we
determined that LE § 9-736(b) “unequivocally support[ed] our holding” in that case “that,
where the Commission has determined an employee’s permanent partial disability and
apportioned between an accidental personal injury and a subsequent intervening injury, if
the employee’s condition worsens, the Commission is not precluded from awarding
workers’ compensation benefits due to the accidental personal injury.” Id. at 143, 164 A.3d
at 175.
In LaBonte, id. at 119, 164 A.3d at 161, the claimant, who suffered an accidental
personal injury to his back while working as an electrician, filed a claim with the
Commission seeking temporary total disability benefits and temporary partial disability
benefits, both of which the Commission awarded. The claimant was subsequently injured
outside of his workplace in an unrelated matter and filed issues with the Commission
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seeking additional temporary total disability benefits, which the Commission denied. See
id. at 119, 164 A.3d at 161. The claimant then filed issues with the Commission seeking
permanent partial disability benefits, which the Commission awarded, finding that the
claimant’s disability was partially due to his work-related injury and partially “due to pre-
existing and subsequent conditions.” Id. at 119-20, 164 A.3d at 161 (cleaned up).
Years later, the claimant filed a petition to reopen, alleging that his back condition
had worsened and seeking additional permanent partial disability benefits. See id. at 120,
164 A.3d at 161. The Commission granted the petition to reopen, but denied the request
for additional benefits, finding that there “had not been a worsening of [the claimant]’s
back condition that was causally related to his” work-related injury “because the
Commission’s previous Order and Award of Compensation had established a ‘subsequent
intervening event’ that broke the ‘causal nexus’ between” the work-related injury and the
claimant’s existing back condition. Id. at 120, 164 A.3d at 161-62. The claimant petitioned
for judicial review, and a jury found that the claimant’s work-related injury was the cause
of the worsening of his back condition. See id. at 120, 164 A.3d at 162.
The Court of Special Appeals affirmed, and this Court affirmed too. See id. at 120,
146, 164 A.3d at 162, 177. We concluded that nothing in the Commission’s prior “orders
precluded the Commission from determining at a later date how much, if any, worsening
of [the claimant]’s back condition was due to his accidental personal injury.” Id. at 143,
164 A.3d at 175. We explained that “LE § 9-656(a) empowered the Commission to make
such a determination, and LE § 9-736(b)(2) authorized the Commission to modify its
previous finding of the proportion of [the claimant]’s back condition that was due to his”
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work-related injury. Id. at 143, 164 A.3d at 175.
In Gang v. Montgomery Cty., 464 Md. 270, 293, 211 A.3d 355, 369 (2019), we held
that the Commission had “continuing jurisdiction to retroactively correct the rate of
compensation in [the claimant]’s award for permanent partial disability based on an error
of law for which there had been application prior to the expiration of the five-year period
of limitations.” In that case, the claimant was injured while working as a correctional
officer and the Commission awarded him compensation for a permanent partial disability
resulting from the workplace injury. See id. at 272-73, 211 A.3d at 356-57. Nearly four
years later, the claimant filed a request for document correction with the Commission,
seeking adjustment of the award and alleging that the rate of compensation had been
incorrectly calculated because he qualified as a public safety employee and was therefore
entitled to a greater rate of compensation. See id. at 274-75, 211 A.3d at 358. The
Commission granted the request and issued an amended award, retroactively increasing the
claimant’s rate of compensation. See id. at 275, 211 A.3d at 358. The County (which was
the employer) filed a request for a rehearing with the Commission. See id. at 275, 211
A.3d at 358. The Commission held a hearing and affirmed the order increasing the rate of
compensation. See id. at 275-76, 211 A.3d at 358. The County petitioned for judicial
review and the trial court affirmed the Commission’s decision. See id. at 276, 211 A.2d at
359. The Court of Special Appeals reversed the circuit court’s judgment, holding that the
Commission erred in retroactively modifying the workers’ compensation award. See id. at
276, 211 A.3d at 359.
We disagreed, holding “that the Commission had the authority to reopen [the
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claimant]’s award of permanent partial disability compensation and retroactively adjust his
rate of compensation because his request for such, which was made within five years from
the date of his last compensation, was based on a mistake or error.” Id. at 278, 211 A.3d
at 360. We stated that, in LaBonte and other cases, this Court had “recognized the wide
breadth of the Commission’s authority to modify its previous findings and orders.” Gang,
464 Md. at 282, 211 A.3d at 362. We explained that case law supported the conclusion
that the Commission had “continuing jurisdiction to reopen [the claimant]’s case to correct
an error of law as long as the application for the modification was filed within five years,
as it was[,]” as well as the conclusion that the Commission has the authority “to correct its
own errors of law within the time limitations of [LE §] 9-736(b).” Id. at 285-86, 211 A.3d
at 364-65.
Analysis
Here, we hold that the Court of Special Appeals erred in reversing the Commission’s
decision as to Bowen’s tinnitus because any issue as to whether Bowen had sustained a
compensable disablement due to tinnitus was not before the Court. Case law holding that
the Commission has the authority to review prior awards does not mean that an appellate
court may insert into an appeal an issue that was not raised or argued before the
Commission. The record reveals the following sequence of events, which demonstrates
that only the nature and extent of permanent partial disability due to hearing loss and
tinnitus were at issue before the Commission, as well as the circuit court and the Court of
Special Appeals, and not whether Bowen had sustained a compensable disablement due to
tinnitus.
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On August 17, 2016, Bowen filed a claim with the Commission seeking
compensation for hearing loss, including tinnitus. On December 30, 2016, the Commission
held a hearing. At the hearing, the County’s counsel raised issues about apportioning
liability and the date of disablement, but acknowledged that, whatever the date of
disablement, Bowen “had a compensable binaural hearing loss[.]” The County’s counsel
did not argue that a claim for tinnitus had to be filed as an occupational disease claim, as
opposed to as part of an occupational deafness claim. Indeed, the County’s counsel agreed
that tinnitus was part of the occupational deafness claim.
A few weeks later, on January 19, 2017, the Commission issued a compensation
order finding that Bowen had “sustained an occupational disease of binaural hearing loss
and tinnitus arising out of and in the course of employment” as a firefighter for the County.
In other words, on that date, the Commission determined that Bowen had a compensable
disablement in the form of an occupational disease of binaural hearing loss and tinnitus. It
is undisputed that the County did not request a rehearing pursuant to LE § 9-726 or seek
judicial review of the Commission’s decision pursuant to LE 9-737, i.e., the County did
not dispute the Commission’s determination that Bowen had the occupational disease of
tinnitus and had a compensable disablement as a result. Indeed, in a reply brief filed in this
Court, the County concedes that it “did not appeal the January 19, 2017 Order finding a
disablement for hearing loss because the County’s position was that tinnitus was part of
hearing loss.”
Later, on September 27, 2017, Bowen’s counsel filed issues with the Commission
to determine the nature and extent of permanent partial disability due to hearing loss and
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tinnitus. At that point, by virtue of the January 2017 order, it had already been
established—without any objection from, or contention otherwise by, the County—for
eight months that Bowen had an occupational disease of binaural hearing loss and tinnitus,
i.e., that he had a compensable disablement. On December 5, 2017, the Commission held
a hearing on the nature and extent of Bowen’s hearing loss and tinnitus. At the hearing,
the County’s counsel stated that “tinnitus is part of hearing loss, and it’s compensable
under” LE § 9-650, and that occupational deafness “includes tinnitus and hearing loss,
[be]cause tinnitus is a part of hearing loss.” The County’s counsel also stated that tinnitus
is “included and captured under” LE §§ 9-650 and 9-505. At the hearing, the parties
disputed whether tinnitus was compensable as a permanent partial disability as an other
cases loss, as Bowen’s counsel argued, or whether tinnitus was part of hearing loss and, as
such, could be measured only under LE § 9-650, as the County’s counsel argued. Notably,
the County’s counsel did not dispute the Commission’s earlier determination that Bowen
suffered from a compensable disablement in the form of tinnitus or otherwise argue that a
claim for tinnitus was required to be brought under LE § 9-502 rather than under LE § 9-
505. In fact, the County’s counsel affirmatively stated that tinnitus is part of hearing loss
and falls under the occupational deafness statutes, LE §§ 9-505 and 9-650.
Ten days later, on December 15, 2017, the Commission issued an award of
compensation, giving Bowen compensation, in pertinent part, for permanent partial
disability under other cases amounting to 2% industrial loss of use of the body due to
tinnitus. On January 12, 2018, the County filed a petition for judicial review, stating, in
relevant part, that it specifically disputed the Commission’s determination that Bowen
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sustained permanent partial disability under other cases amounting to 2% industrial loss of
use of the body due to tinnitus. The County’s petition for judicial review made clear that
the County disputed the 2% industrial loss of use of the body due to tinnitus finding, i.e.,
the extent (or duration) of the permanent partial disability, but not the circumstance that
Bowen suffered a compensable disablement in the form of tinnitus. Stated otherwise, the
County disputed the nature and extent of the disablement, not that Bowen had a
compensable disablement.
The County’s position as presented in the petition for judicial review was confirmed
in answers to interrogatories. Specifically, in an answer to an interrogatory propounded by
Bowen’s counsel requesting “a concise statement of facts as to how [it] contend[ed
Bowen]’s disability occurred[,]” the County responded: “Objection. This interrogatory is
not relevant to the issue on appeal which is the nature and extent of the occupational
deafness claim and not compensability and would call for medical conclusions.” At the
hearing before the circuit court, the parties disputed whether tinnitus was part of hearing
loss and whether it could be rated separately for purposes of determining permanent partial
disability under LE § 9-627. To be sure, at the hearing, the County’s counsel argued that
there had not been
any contention . . . that [Bowen] had a separate disablement outside of the
hearing loss. For there to be a disablement in the hearing loss case, . . . all
you need to show is that you meet the threshold under [LE §] 9-650(b)(3). If
you are claiming a separate occupational disease outside of the Occupational
Deafness Statute, then you would have to prove that there was some sort of
disablement. There was a loss of wages, there was an inability to work.
This is a far cry, however, from arguing that tinnitus is compensable only as an
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occupational disease under LE § 9-502 upon establishment of a disablement separate from
hearing loss, especially in light of the circumstance that the County’s position was that
tinnitus is part of hearing loss and compensable under LE §§ 9-505 and 9-650. The circuit
court affirmed the Commission’s decision with respect to tinnitus being a 2% other cases
permanent partial disability.
The County appealed, raising three questions as to Bowen:
Did the [circuit] court err in calculating the permanent partial disability as
11.125% binaural hearing loss under the Act?
Did the [circuit] court err in granting partial disability award for tinnitus
separately from hearing loss under the Act?
Did the [circuit] court err when it ordered that the tinnitus be categorized as
an “Other Cases” injury instead of an injury to the scheduled member (both
ears) specifically mentioned in the Act?
Cochran, 243 Md. App. at 111 n.7, 219 A.3d at 128 n.7. On their face, the questions
presented by the County did not raise an issue as to whether Bowen had sustained a
compensable disablement due to tinnitus, but instead concerned the award of permanent
partial disability for tinnitus. Nonetheless, the Court of Special Appeals reversed the
Commission’s award and concluded that tinnitus was not compensable as part of
occupational deafness under LE § 9-505, but instead must be claimed under LE § 9-502 as
an occupational disease, meaning that disablement must be established under that statute.
See Cochran, 243 Md. App. at 129-30, 219 A.3d at 138-39. Although the Court of Special
Appeals stated that it reversed the Commission’s decision with respect to tinnitus on a
ground not primarily argued by the County and indicated that the County offered an
alternative argument in a footnote, see id. at 129, 130 n.15, 219 A.3d at 138, 139 n.15, a
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review of the briefs that the County filed reveals that the issue was not argued at all by the
County—in a footnote or anywhere else in its brief. Put simply, the Court of Special
Appeals erred in determining that the County argued as an alternative position that tinnitus
is a compensable disablement under LE § 9-502, and not LE § 9-505.
Repeatedly, in its brief filed in the Court of Special Appeals, in discussing the award
of permanent partial disability for tinnitus, the County argued that “tinnitus is a form of
hearing loss covered under the occupational deafness statute and nowhere else under the
Act.” Brief for Appellant Montgomery Cty., Montgomery Cty. v. Bowen, 243 Md. App.
102, 219 A.3d 122 (2019), No. 2930, Sept. Term, 2018, 2019 WL 3383943, at *19 (bolding
and some capitalization omitted). Illustrative of the point, in its brief, the County stated:
“[N]o authority exists to allow for a separate award of compensation for tinnitus because
tinnitus is a form of hearing loss that affects the injured worker’s hearing and is the result
of hearing loss.” Id. at *19-20. The County also stated: “Since tinnitus falls under the
occupational deafness portion of the statute, there is no separate occupational disease claim
for tinnitus outside of the occupational deafness claim and therefore no separate award for
permanent partial disability.” Id. at *20. Significantly, the County contended that “[n]ot
only is there no support in the case law to treat tinnitus as a separate occupational disease
from occupational deafness, the medical literature does not support such separation.” Id.
at *21. In a passage that encapsulates the County’s argument, the County unequivocally
maintained that tinnitus is compensated under LE § 9-505, the occupational deafness
statute, as opposed to under LE § 9-502, stating: “Here, no ambiguity exists in the plain
meaning of the statute. It is clear that hearing loss, which includes tinnitus, is compensated
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in accordance with LE § 9-505, the occupational deafness statute, rather than under LE §
9-502, the general occupational disease statute.” Id. at *24.
There is no footnote in which the County takes an opposite or “alternative” position.
In addressing the award of permanent partial disability, in one footnote in its brief, footnote
8, the County discussed that Bowen did not claim tinnitus as an occupational disease under
LE § 9-502 and that, “[i]nstead, the claim was found compensable based on the
occupational deafness portion of the statute[.]” Id. at *19 n.8. Although the footnote
described the differences between claims brought under LE §§ 9-502 and 9-505, the
County did not contend that this was an issue before the Court or that it was making an
alternative argument. See id. In another footnote, footnote 12—apparently the one that
the Court of Special Appeals referred to—the County made the point that it did not concede
that a separate rating is permitted for tinnitus anywhere under the Workers’ Compensation
Act. See id. at *26 n.12. In footnote 12, the County stated:
The County does not concede that a separate rating for tinnitus is allowable
under the Act as the Act requires hearing loss to be compensated in
accordance with the formula set out in LE § 9-650 rather than under the
prescriptions outlined in the Guides[ to the Evaluation of Permanent
Impairment (American Medical Association, 4th ed., 1993)]. If LE § 9-650
does not capture tinnitus, tinnitus becomes a non-compensable event.
Id. In this footnote, the County sought to clarify that, if compensable at all, tinnitus should
be managed under the Act using the formula set forth in LE § 9-650 as a part of hearing
loss. The County made the point that if tinnitus is not included under LE § 9-650, then
tinnitus is a non-compensable occurrence. This footnote in no way raises an argument or
even a suggestion that tinnitus should be claimed under LE § 9-502 as an occupational
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disease and that permanent partial disability for tinnitus should be determined under LE §
9-627(k).
Yet, in a footnote in its opinion, the Court of Special Appeals erroneously reasoned
that the County raised an alternative argument about tinnitus being compensable under LE
§ 9-502 upon establishment of disablement, stating:
The County makes this argument, but only as an alternative and in a footnote.
It says that it does not “concede” that tinnitus is compensable outside of
claims for occupational deafness under LE § 9-505 and LE § 9-650. The
practical outcome of the County’s main position is that tinnitus would likely
never be compensable because it is not measurable, as occupational deafness
is. Ultimately, though, the County’s argument fails because the plain
language of the statute does not include tinnitus within occupational
deafness, as we explain herein.
Cochran, 243 Md. App. at 130 n.15, 219 A.3d at 139 n.15 (emphasis omitted). A fair
reading of the County’s brief reveals that the Court of Special Appeals concluded that the
County made an alternative argument that it did not make. Footnote 12 of the County’s
brief is couched in the language of the Workers’ Compensation Act, but it is clear that the
County’s position was that it did not concede that there is a separate rating for tinnitus
within the Act and not an argument that a claim for tinnitus should have been brought under
LE § 9-502.13 Reading Footnote 12 in the context of the entirety of the County’s brief, it
is clear that the only position that the County took is that “to have a compensable hearing
13
We note that, at oral argument before this Court, Bowen’s counsel pointed out
that, at oral argument before the Court of Special Appeals, the County’s counsel stated that
the appeal concerned whether tinnitus could be rated separately from hearing loss for
purposes of permanent partial disability, and, if so, whether it was to be rated as a scheduled
loss or other cases loss. In other words, as Bowen’s counsel advised this Court, based on
the County’s counsel’s statements at oral argument before the Court of Special Appeals,
he “had no idea that disablement was on the table.”
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loss/tinnitus claim, the occupational deafness portion of the statute requires a showing of
hearing loss as measured under the prescribed decibels under the Act[,]” 2019 WL
3383943, at *19 n.8 (citation omitted), or as stated in footnote 12, if tinnitus is not
compensated under LE § 9-650 (using the prescribed decibels), it would not be
compensable under the Act, see 2019 WL 3383943, at *26 n.12 (citation omitted).
Now, after the Court of Special Appeals issued the holding concerning tinnitus, in
this Court, the County, among other things, states: “[A]ccepting the Court of Special
Appeals’[s] finding that tinnitus is separate from hearing loss, the Commission (as the
Court of Special Appeals found) would have had to make a separate finding of disablement
for the tinnitus claim under LE § 9-502. The Commission did not do so.” The County
candidly acknowledges in a reply brief in this Court that, at the December 2016 and
December 2017 hearings, “[b]oth the tinnitus and hearing loss were treated by the
Commission and the parties as covered under LE § 9-505.” And, the County does not
claim to have sought review of or appealed the January 2017 finding of tinnitus as a
compensable disablement.
Against this backdrop, we have no difficulty in concluding that the Court of Special
Appeals erred in reversing the Commission’s decision as to tinnitus because the issue of
whether Bowen sustained a compensable disablement due to tinnitus was not before the
Court of Special Appeals.14 The County’s position throughout the case—through two
14
Because we conclude that the issue was not before the Court of Special Appeals,
we do not address the issue that the Court of Special Appeals decided—whether a claim
for tinnitus must be raised under LE § 9-502 as an occupational disease for which
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hearings before the Commission, in the circuit court, and in the Court of Special Appeals—
had been that Bowen had sustained a compensable disablement under LE § 9-505 due to
hearing loss and tinnitus. There was no inkling whatsoever in the underlying proceedings
that tinnitus should not be compensable as part of an occupational deafness claim under
LE § 9-505 or that it was compensable only as an occupational disease under LE § 9-502.
Put plainly, the issue was not before the Commission or the circuit court, let alone the Court
of Special Appeals. In our view, the Court of Special Appeals erred in concluding that the
County raised the issue in the form of an alternative argument in a footnote, and the matter
was not an issue that was raised before or decided by the Commission.
disablement must be established or under LE § 9-505 as part of an occupational deafness
claim. We also note that, had the Court of Special Appeals reversed and remanded, which
it did not, to provide Bowen the opportunity to bring the tinnitus claim under LE § 9-502,
Bowen would have been unable to do so unless the Court of Special Appeals also held that
the statute of limitations was tolled or did not apply because the statute of limitations had
expired at the time that the Court of Special Appeals issued its opinion. This is so because
LE § 9-711(a)(1), the general statute of limitations applicable to occupational diseases,
provides:
If a covered employee suffers a disablement . . . as a result of an occupational
disease, the covered employee . . . shall file a claim application form with the
Commission within 2 years . . . after the date:
(i) of disablement or death; or
(ii) when the covered employee . . . first had actual knowledge that
the disablement was caused by the employment.
Similarly, were we to remand the case for Bowen to bring a claim for tinnitus under
LE § 9-502, this would likely lead to the unjust result of Bowen being time barred from
seeking compensation for tinnitus. We know this to be so because, at oral argument, the
County’s counsel, in rebuttal, assured this Court that “Bowen could go and file a new claim
under [LE §] 9-502. The County would raise whatever defenses would be available
including disablement or statute of limitations, etc.”
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Finally, we are not persuaded that LE § 9-736, LaBonte, or Gang compels a different
result or stands for the proposition that the Commission’s finding of a compensable
disablement, as opposed to an adjustment of a compensation rate or modification of an
award, is reviewable at any time. LE § 9-736(a)(1) provides the Commission with the
authority to readjust the rate of compensation under certain circumstances. That
subsubsection plainly provides no support for the conclusion that a disablement finding
may be reversed or reviewed at any time. Similarly, although LE § 9-736(b)(1) provides
the Commission with “continuing powers and jurisdiction over each” workers’
compensation claim, and LE § 9-736(b)(2) provides that “the Commission may modify any
finding or order as the Commission considers justified[,]” the fact of the matter is that the
County did not seek modification of the finding that Bowen had sustained a compensable
disablement due to tinnitus or otherwise seek modification of the January 2017 order. LE
§ 9-736(b)(2) does not put the onus on the Commission to review any and all of its past
findings and orders, seeking ones that may require modification. Nor does LE § 9-
736(b)(3) support the position that a compensable disablement finding is reviewable or
modifiable at any time. LE § 9-736(b)(3) concerns modifications to “an award[,]” not to a
finding of a compensable disablement. In that vein, the Commission’s January 2017 order
is a “Compensation Order” whereas the December 2017 order is an “Award of
Compensation,” and each order satisfies a different purpose under the Act, and an award
of compensation is subject to modification under LE § 9-736(b)(3). (Some capitalization
omitted).
Neither LaBonte nor Gang holds that any issue whatsoever pertaining to a workers’
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compensation claim may be reviewed at any time. In LaBonte, 454 Md. at 143, 164 A.3d
at 175, we recognized the Commission’s authority under LE § 9-736(b) to modify its
previous orders. Our holding in LaBonte, id. at 143, 164 A.3d at 175, however, concerned
the Commission’s modification of an award of compensation upon a claimant’s worsening
of condition, which we concluded the Commission was permitted to do. We explained that
LE § 9-656(a) empowered the Commission to make a determination at a later date that a
claimant’s condition worsened and that “LE § 9-736(b)(2) authorized the Commission to
modify its previous finding of the proportion of [the claimant]’s back condition that was
due to his accidental personal injury.” Id. at 143, 164 A.3d at 175. And, in Gang, 464 Md.
at 293, 211 A.3d at 369, we held that the Commission had continuing jurisdiction to
retroactively correct the rate of compensation in an award for permanent partial disability
based on an error where the claimant had sought modification prior to the expiration of the
five-year period of limitations. Notably, neither LaBonte nor Gang concerned modification
(or flat-out reversal) of the Commission’s finding of a compensable disablement, and
neither case states, let alone implies, that the Commission’s finding of a compensable
disablement may be reviewed or appealed at any time, or when the employer has not
appealed the issue of compensability in the first instance.
In sum, we conclude that the issue of whether Bowen sustained a compensable
disablement due to tinnitus, i.e., whether tinnitus is compensable only under LE § 9-502,
was not before the Court of Special Appeals. Thus, the Court of Special Appeals erred in
considering the matter and in reversing the Commission’s award of permanent partial
disability benefits to Bowen for tinnitus. Accordingly, we reverse the judgment of the
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Court of Special Appeals as to this issue concerning Bowen.
JUDGMENT OF THE COURT OF SPECIAL
APPEALS AFFIRMED IN PART AND
REVERSED IN PART AS STATED IN THE
OPINION. PETITIONER/CROSS-RESPONDENT
TO PAY COSTS.
- 57 -
Circuit Court for Montgomery County
Case Nos. 423960-V and 442304-V
Argued: September 14, 2020
IN THE COURT OF APPEALS
OF MARYLAND
No. 69
September Term, 2019
______________________________________
MONTGOMERY COUNTY, MARYLAND
v.
ANTHONY G. COCHRAN AND ANDREW
BOWEN
______________________________________
Barbera, C.J.,
McDonald
Watts
Hotten
Getty
Booth
Biran,
JJ.
______________________________________
Concurring Opinion by McDonald, J.,
which Getty, J., joins.
______________________________________
Filed: October 26, 2020
I would reach the same result in this case as the Majority Opinion, but do not join
its reasoning on the first issue – the construction of Maryland Code, Labor & Employment
Article (“LE”), §9-650(b)(3), in the case of a retired claimant like Mr. Cochran and Mr.
Bowen.
The Majority Opinion purports to apply a “plain meaning” analysis of the relevant
statute without quite grappling with the complete language of the statute. As this Court
once observed:
A preliminary matter [in a plain meaning analysis] is to identify the
statutory or regulatory language to be construed. Consider the well-known
phrase “She loves me; she loves me not.” If one focuses on the first clause,
the plain meaning appears clear – no need for further exploration. Similarly,
if one considers only the second clause, the meaning seems equally clear
though quite different. But when the sentence is considered as a whole, there
is ambiguity and one must know more than the language alone to discern its
meaning.
Building Materials Corp. v. Board of Education, 428 Md. 572, 585 (2012).
The statutory provision at issue in this case poses a similar quandary. It requires
that a claimant’s hearing loss be computed by audiometric instrumentation according to
certain criteria. LE §9-650(a)-(b). Once that test has been conducted, the results are
adjusted as follows:
To allow for the average amount of hearing loss from nonoccupational
causes found in the population at any given age, there shall be deducted from
the [hearing loss measured by audiometric instrumentation] one-half of a
decibel for each year of the covered employee’s age over 50 at the time of
last exposure to industrial noise.
LE §9-650(b)(3) (emphasis added). The initial clause of paragraph (b)(3) appears to
require an adjustment of the test results based on the claimant’s age to account for “hearing
loss from nonoccupational causes.”1 Hearing loss from nonoccupational causes does not
cease as of the date of retirement and, given that the adjustment is to be made to results of
a particular hearing test on a particular date, one would expect the formula to relate to the
claimant’s age at the time of the test that resulted in the claim. The phrase “any given age,”
on its face, does not equate to “retirement date.” Indeed, a treatise on the Maryland
Workers’ Compensation Act concludes that this provision “makes consideration of the
claimant’s age mandatory.” Richard P. Gilbert, et al., Maryland Workers’ Compensation
Handbook at 8-20 & n.6 (4th ed. 2013). The claimant’s age on the date that the test was
taken seems most pertinent for the adjustment that is to be made.
While that interpretation seems straightforward – perhaps one might even say
“plain” – the final phrase of paragraph (b)(3) muddies the waters. It specifies that the
adjustment is to be made according to a formula based on “each year of the covered
employee’s age over 50 at the time of the last exposure to industrial noise.” There appears
no obvious reason that the “time of last exposure to industrial noise” would be the date of
the hearing test of a retired claimant. On the other hand, neither is it obvious that the date
of last exposure to industrial noise will equate to a date of retirement, as the Majority
Opinion seems to assume. “[A]ge … at the time of last exposure to industrial noise” might
happen to coincide with a date of retirement, but it will not always be the case such that
1
In brief and argument, Respondents attempted to discount this part of the statute
by characterizing it as a mere “preamble.” It is not a preamble. See Maryland Department
of Legislative Services, Legislative Drafting Manual (2019) 170-71 (Preambles).
-2-
the “plain meaning” of the phrase is retirement date.2
When confronted with ambiguity in the language of a statute, we generally resort to
the legislative history of the statute.3 As the Majority Opinion notes, the relevant
provisions relating to occupational deafness were added to the Workers’ Compensation
Act in 1967. Chapter 155, Laws of Maryland 1967. That legislation was apparently
inspired in part by this Court’s decision in Belschner v. Anchor Post Products, Inc., 227
Md. 89 (1961). In Belschner, a man who worked as a saw operator filed a worker’s
compensation claim “for the loss of hearing he sustained as a result of exposure to high
level industrial noises.” 227 Md. at 90. The Commission denied the occupational disease
claim because, despite the fact that Mr. Belschner had suffered a 44% binaural hearing
loss, he was still able to perform his job as a saw operator. This Court affirmed that
decision on the ground that the existing statute required a showing that the worker was
disabled by the occupational disease from performing his job. The Court invited the
General Assembly to amend the statute if it felt it was necessary to “liberalize the law.” Id.
at 95.
A few years later, the Governor’s Commission to Study the Workmen’s
Compensation Laws (“Study Commission”) made such a proposal. On the
recommendation of organizations representing workers’ compensation insurers, the Study
2
Before retirement, a worker may well perform different jobs for the same
employer, some of which involve exposure to industrial noise and some of which do not.
3
An excellent summary of the history of the statute appears in Yox v. Tru-Rol Co.,
Inc., 380 Md. 326 (2004) (Wilner, J.).
-3-
Commission included within its 1967 report a proposal that the law be amended to include
a separate provision for occupational hearing loss. Apparently referring to the Belschner
decision, the Study Commission stated:
At the present 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.
Seventh Report of the Governor’s Commission to Study Maryland Workmen’s
Compensation Laws (February 14, 1967) at 2. A few days after the report was issued, the
proposed bill was introduced in the House. House Bill 473 (1967). It promptly passed
both houses unanimously within the next month. 1967 House Journal at 288, 1274; 1967
Senate Journal at 1182, 1254, 1329. As a result, occupational hearing loss became
compensable without regard to whether, like Mr. Belschner, the employee was still
performing his or her job. See Crawley v. General Motors Corp., 70 Md. App. 100, 107,
cert. denied, 310 Md. 147 (1987).
The 1967 enactment included an adjustment for age-related hearing loss in language
virtually identical to that of the current statute.4 The adjustment for age-related hearing
loss appears to be consistent with the interests of the original proponents of the 1967
legislation – organization of workers’ compensation insurers – who presumably wished to
avoid becoming insurers of disabilities caused by aging rather than the workplace.
4
See Chapter 155, Laws of Maryland 1967. That adjustment, originally codified as
Maryland Code, Article 101, §25A(f), became paragraph (b)(3) of the current statute as
part of a 1991 recodification. The only significant difference from the original version of
the statute is that the benchmark age for measuring age-related hearing loss was 40 in the
original enactment, instead of 50 as it is in the current statute.
-4-
Given that the issue that inspired the occupational hearing loss statute – whether a
claimant who was still working could be eligible for benefits – it seems quite likely that the
General Assembly gave no thought to “retirement date” when it enacted the final phrase of
what is now paragraph (b)(3) referring to “age … at the time of last exposure to industrial
noise” concerning the adjustment for age-related hearing loss.5
A hypothetical example based on the Belschner case illustrates the anomaly we face
in this case. Assume A and B, aged 52 and 54 respectively, are saw operators who suffer
hearing loss as a result of their employment but, like Mr. Belschner, remain on the job.
They both take the requisite hearing exam with identical results. Both are currently
working, so the date of “last exposure to industrial noise” is the same for both A and B.
Thus, under the statute, B’s test result is adjusted downward for age-related hearing loss
more than A’s because B is four years over the age of 50 while A is only two years over
the age of 50. That appears to accord with the purpose of the statute – given otherwise
identical employees and test results, there is a larger downward adjustment for age-related
hearing loss for the older employee.
Assume a third claimant – C. C is 54 years old, but previously retired from the post
of saw operator at age 52. C also suffered job-related hearing loss and has now taken the
requisite test – with an identical result to those of A and B. If the date inserted into the
adjustment formula is the date of C’s retirement at age 52, rather than the date of the test
5
There is no reference to retirement, much less retirement age, in the Study
Commission’s brief report. This is perhaps unsurprising as the benchmark age for age-
related hearing loss in the original version of the statute was 40 – well before the usual age
of retirement. See footnote 4 above.
-5-
at age 54, C will receive the same smaller adjustment as the younger A (52-50) rather than
the larger adjustment made for B (54-50), who is the same age as C and who is presumably
subject to the same degree of age-related hearing loss. Although generous to C, this seems
an anomalous result. The date of C’s hearing test seems a better benchmark than retirement
date for the adjustment formula in C’s case, but is hard to read into the language of the
statute – i.e., “time of last exposure to industrial noise.”
Like C, Mr. Cochran and Mr. Bowen took their hearing tests and made their claims
after retirement. How is a court to decide between competing interpretations when the
statutory language favors neither interpretation and it appears from the legislative history
that the General Assembly did not have retired employees in mind at the time it enacted
the provision?
In my view, this question cannot be resolved by purporting to divine the “plain
meaning” of a particular phrase. And the legislative history is ultimately indeterminate as
to legislative “intent” as to how the hearing loss statute should be applied to a retiree. In
such circumstances, we must consider how one interpretation or the other comports with
the statute as a whole. In that situation, this Court has observed that “because the [Workers’
Compensation] is a remedial statute, to the extent that the plain language of the Act is
ambiguous or unclear, it must be construed as liberally in favor of injured employees as its
provisions will permit in order to effectuate its benevolent purposes.” Reger v. Washington
Co. Board of Education, 455 Md. 68, 96 (2017) (citations and internal quotation marks
omitted); see also LE §9-102 (principles of construction of Workers’ Compensation Act).
For that reason, I join in the judgment, but not the reasoning, of the Majority Opinion.
-6-
Judge Getty has advised that he joins in this opinion.
-7-