Appeal from the Superior Court of Baltimore City; Prendergast, J.
Hammond, Prescott, Horney, Marbury and Sybert, JJ. Horney, J., delivered the opinion of the Court. Hammond, J., concurs in the result.
The question presented in this case is whether an employee, who has continued to perform his work in a satisfactory manner without loss of wages in the same occupation he had been engaged in for years, is entitled to workmen's compensation for the loss of hearing he sustained as a result of exposure to high level industrial noises.
Charles W. Belschner (the employee and claimant) had worked for the Anchor Post Products Company (the employer) for more than twenty years. For twelve years he had been employed as a saw operator, and, during this time, the noises his ears were subjected to were such as to cause impairment of his hearing. In March of 1958 the employee filed
a claim for partial disability caused by a spark accidentally flying into one of his ears, but in January of 1959 he amended the claim by asserting that the disability he had sustained was the result of an occupational disease described as "deafness due to working in an environment of loud noises over a period of time." The claim having come on for a hearing before the medical board, the parties stipulated that the claimant had suffered a forty-four per centum binaural loss of hearing due to industrial exposure. There was testimony by the foreman, under whom he worked, that the claimant was still performing his duties as a saw operator in a satisfactory manner. There was also a colloquy between counsel for the claimant and the medical board as to whether the impairment of hearing had affected the capacity of the claimant to work, but when a member of the board interposed an observation that the claimant was doing his work "just as well" and "producing the same thing" as he did before the impairment and was "making the same living," the discussion seems to have ended. In any event, the claimant was not called to testify and no testimony was offered in his behalf. At the conclusion of the hearing, the board, basing its finding and decision on the stipulations and the medical reports, was of the opinion that the claimant had suffered a "binaural hearing loss due to industrial exposure" to the extent stipulated by the employer and employee.
But, when the insurer of the employer requested a review of the decision of the medical board, the Workmen's Compensation Commission reversed the decision of the board and found that "the claimant did not sustain an occupational disease" within the meaning of the statute, and further found that the "claimant did not sustain an accidental injury arising out of and in the course of employment," and entered an order disallowing the claim for compensation. And, upon the appeal of the claimant to the Superior Court of Baltimore City, that court affirmed the decision of the Commission, and this appeal followed.
Since the provisions of § 36 of Article 101 of the Code of 1957 are as applicable in a proper case to a disability resulting from an occupational disease as they are to a disability arising out of an accidental injury, it is the contention of the
claimant that he is entitled to compensation for the loss of hearing it is not disputed he sustained.
As originally enacted in 1914, the Workmen's Compensation Law (now codified as Article 101 in the Code of 1957) provided that every employer should pay (or provide) compensation for the disability or death of an employee from an accidental injury arising out of and in the course of his employment. But, until the enactment of an amendment in 1939, there was no provision in the law to compensate an employee who had suffered injury from an occupational disease. And, though the original statute did not define the term "disability," it was then provided, as it is now, that an employee is entitled to compensation (and the amount thereof is fixed) for a disability partial in character but permanent in quality in accordance with a schedule of specific injuries, including one "for the total loss of hearing of both ears." See § 36(3) of Art. 101 of the Code of 1957. Furthermore, we have ruled from time to time that a claimant need not show loss of wages or earning capacity in order to be entitled to compensation for an accidental injury. See Balto. Publishing Co. v. Hendricks, 156 Md. 74, 143 Atl. 654 (1928); Balto. Tube Co. v. Dove, 164 Md. 87, 164 Atl. 161 (1933).*fn1
Such was the state of the law before the enactment of Chapter 465 of the Acts of 1939, to provide compensation to employees suffering from occupational diseases. Besides providing coverage for an injury which theretofore had not ...