Circuit Court for Montgomery County Case Nos. 423960 &
Nazarian, Wells, Adkins, Sally A. (Senior Judge, Specially
Warning lights are flashing down at Quality Control Somebody
threw a spanner and they threw him in the hole There's
rumors in the loading bay and anger in the town Somebody blew
the whistle and the walls came down There's a meeting in
the boardroom, they're trying to trace the smell
There's leaking in the washroom, there's a sneak in
personnel Somewhere in the corridor someone was heard to
sneeze Goodness me, could this be Industrial
appeals plunge us into uncharted waters deep in the
"murky depths" of Maryland's workers'
compensation law. Subsequent Injury Fund v. Teneyck,
317 Md. 626, 631 (1989). Anthony Cochran and Andrew Bowen
were firefighters for Montgomery County for over thirty
years. Both developed hearing loss from exposure to loud
noises they encountered repeatedly on the job. They also
developed tinnitus, a condition commonly described as a
ringing in the ears. Several years after retiring, they filed
claims for workers compensation benefits for their hearing
loss and, in Mr. Bowen's case, tinnitus as well. Their
claims raise unresolved questions about the inputs for the
calculation of hearing loss under § 9-650(b) of the
Labor and Employment Article ("LE") and about the
appropriate classification of tinnitus under LE §
Maryland Workers' Compensation Commission (the
"Commission") awarded benefits to both claimants.
The County filed separate petitions for judicial review in
the Circuit Court for Montgomery County. The circuit court
affirmed the decisions of the Commission and the County
appeals. We affirm the judgment in Mr. Cochran's case in
toto and affirm the judgment in Mr. Bowen's case
except as to the award of permanent partial disability
benefits for his tinnitus.
Anthony G. Cochran
Cochran was a Montgomery County fire fighter for about 34
years. He retired in November 2013, when he was approximately
57 years old. He underwent an audiogram about two years
later, on September 23, 2015, and the parties agree that it
showed hearing loss in both ears.
March 21, 2016, Mr. Cochran filed a claim with the Commission
seeking compensation for occupational deafness. About two
months later, on May 23, 2016, Mr. Cochran had another
audiogram that also showed some hearing loss in each ear,
although to a different (and overall lesser) degree than the
15, 2016, the Commission held an evidentiary hearing. Six
days later, it entered an order finding that Mr. Cochran had
sustained an occupational disease of hearing loss arising
from his employment with the County as a firefighter, and
that the date of disability was the date of the first
audiogram, September 23, 2015. The Commission ordered the
County to pay Mr. Cochran's "causally related
County filed a petition for judicial review of the
Commission's decision. On April 27, 2017, the circuit
court held a hearing and affirmed the Commission's
decision, stating its reasoning in open court, and entering a
written order on May 2, 2018.
Bowen was a firefighter for the County for about 36 years and
retired in September 2013, when he was approximately 56 years
old. On August 12, 2016, Mr. Bowen filed a claim with the
Commission seeking compensation for occupational deafness.
Several months later, on October 13, 2016, Mr. Bowen had an
audiogram, and the parties agree that the results showed
hearing loss in both ears. The parties also do not dispute
that Mr. Bowen suffers from tinnitus.
parties did not identify, and we did not find, any expert
testimony in the record defining tinnitus or describing its
clinical symptoms. As defined in Stedman's
Medical Dictionary, a person suffering from
tinnitus "hears" sound that isn't generated by
a stimulus outside of the ear:
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.
Stedman's Medical Dictionary (28th
ed. 2006). For his part, Mr. Bowen testified before the
Commission that his tinnitus "is constant; it's
ongoing; it's 24/7"; that it interferes with his
ability to understand others while speaking; and that it
affects his ability to sleep:
The ringing in my ears is constant; it's ongoing;
it's 24/7. It affects everything that you do. Even with
hearing aids, the ringing in your ears is always the
[prevalent] sound that you hear. It interferes with normal
hearing when you're speaking especially if you have a
group of people you, virtually, have to look at that person
to understand that what they're saying. It makes it
impossible even with hearing aids to, actually, go to a movie
theater; you just, you just can't understand what's
 being said.
The hearing -- the ringing also affects trying to sleep at
night. There are times when you can't sleep because
it's like you're hearing noise all the time. It just
-- I realize at this point in time there's not a whole
lot that they can do to fix it, but it's just constant,
ongoing. Some days are better than others, but overall
it's not a nice thing to have.
December 30, 2016, the Commission held a hearing, and on
January 19, 2017, issued a Compensation Order that found
"that [Mr. Bowen] sustained an occupational disease of
binaural hearing loss and tinnitus arising out of and in the
course of employment and finds that the first date of the
claimant's disablement was January 24, 2005." The
Commission ordered the County to "pay [his] causally
related medical expenses" and authorized hearing aids.
January 2017 order also stated that Mr. Bowen's case
"will be held for further consideration by this
Commission as to whether the claimant has sustained permanent
partial disability, if any; the case will be reset only on
request." On December 5, 2017, the Commission held
another hearing at which it heard testimony and received
evidence. On December 15, 2017, the Commission issued an
order awarding Mr. Bowen compensation for a permanent partial
disability for 14.875% loss of the use of both ears and for
"2% industrial loss of use of the body" from
tinnitus. The Commission awarded compensation of $257 per
week for a period of 47.1875 weeks.
County sought judicial review of the Commission's
decision. On October 12, 2018, the circuit court held a
hearing on cross-motions for summary judgment. The court
granted Mr. Bowen's motion for summary judgment and
affirmed the decision of the Commission, stating its
reasoning on the record in open court, and entering a written
order on October 17, 2018.
County appealed. We supply additional facts as necessary
County states one question concerning Mr.
Cochran and three questions concerning Mr. Bowen,
they all boil down to three questions. First, did
the Commission err in calculating Mr. 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?
Second, did the Commission err in determining, for
Mr. Cochran and Mr. Bowen both, 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 each firefighter retired (as opposed to the date the
hearing test or audiogram was performed)? Third, did
the Commission err in awarding permanent partial disability
benefits to Mr. Bowen for tinnitus under LE § 9-627(k)
as an "unscheduled" or "other cases"
Standard of Review
reviewing workers' compensation awards in cases where the
claimant sought review on the record (rather than a de novo
review involving a new evidentiary hearing), we look through
the decision of the circuit court and evaluate the
Commission's decision directly. W.R. Grace & Co.
v. Swedo, 439 Md. 441, 452-53 (2014). Our task is
"to determine whether the Commission: (1) justly
considered all of the facts about the . . . occupational
disease . . .; (2) exceeded the powers granted to it under
[the Act]; or (3) misconstrued the law and facts applicable
in the case decided." LE § 9-745(c). "The
court must confirm the decision unless it determines that the
Commission exceeded its authority or misconstrued the law or
facts." Richard Beavers Constr., Inc. v.
Wagstaff, 236 Md.App. 1, 13 (2018) (citing Uninsured
Empl'rs' Fund v. Pennel, 133 Md.App. 279, 288-89
said, the Act also provides that in workers' compensation
appeals, "the decision of the Commission is presumed to
be prima facie correct." LE § 9-745(b)(1). In this
case, though, the parties dispute what that means: the
firefighters argue that the Commission's decisions on
questions of law are entitled to "great deference,"
but the County argues that LE § 9-745(b) applies only to
questions of fact and that the Commission's decisions on
questions of law are entitled to "no deference."
Both sides are overreaching. LE § 9-745(b)'s
presumption of correctness "does not extend to questions
of law, which we review independently." Montgomery
Cty. v. Deibler, 423 Md. 54, 60 (2011); accord
Pro-Football, Inc. v. McCants, 428 Md. 270, 283 (2012)
(courts are "under no constraint" to affirm the
Commission's decision if it is "premised solely upon
an erroneous conclusion of law" (cleaned up)). But
courts nevertheless may "afford the Commission a degree
of deference, as appropriate, in its formal interpretations
of the Workers' Compensation Act." Deibler,
423 Md. at 60 (citing Breitenbach v. N.B. Handy Co.,
366 Md. 467, 485 (2001)); accord Calvo v. Montgomery
Cty., 459 Md. 315, 325-26 (2018) ("Although the
Commission is entitled to deference in its interpretation of
the statute it administers, we may still consider whether its
legal conclusions were erroneous.") (citing Wal Mart
Stores, Inc. v. Holmes, 416 Md. 346, 359 (2010) and
W.M. Schlosser Co. v. Uninsured Emp'rs'
Fund, 414 Md. 195, 204 (2010)).
these questions requires us to construe and apply several
sections of the Act. In interpreting these statutes, we seek
"to ascertain and effectuate the real and actual intent
of the Legislature." Gardner v. State, 420 Md.
1, 8 (2011) (quoting State v. Johnson, 415 Md. 413,
421 (2010)). We "look first to the language of the
statute, giving it its natural and ordinary meaning."
Holmes, 416 Md. at 385. When, as here, a statute is
not ambiguous, we look at the "normal, plain
meaning" of the statute "within the context of the
statutory scheme to which it belongs" and "seek to
reconcile and harmonize" the statute's parts.
State v. Bey, 452 Md. 255, 265-66 (2017) (emphasis
added) (quotations and citations omitted).
specific principles of statutory interpretation apply to the
Workers' Compensation Act. LE § 9-102(a) demands
that the statute "be construed to carry out its general
purpose," and LE § 9-102(b) adds that it is not to
be "strictly construed." See Breitenbach,
366 Md. at 472; Wagstaff, 236 Md.App. at 14. This
makes sense in light of the Act's overarching purpose
"to protect workers and their families from hardships
inflicted by work-related injuries . . . ." Howard
Cty. Assoc. for Retarded Citizens, Inc. v. Walls, 288
Md. 526, 531 (1980) (citing Queen v. Agger, 287 Md.
342, 343 (1980)). Even so, all sections of the Act "must
be read together, in conjunction with one another, to discern
the true intent of the legislature" and "we seek to
avoid an interpretation which would lead to an untenable or
illogical outcome." Breitenbach, 366 Md. at
The Statutory Scheme
understanding of the questions before us and the parties'
arguments requires a 30, 000-foot look at the statutory
compensation encompasses two main categories of compensable
events: accidental personal injury and occupational
diseases." Green v. Carr Lowery Glass Co.,
Inc., 398 Md. 512, 516-17 (2007). These two cases
involve hearing loss, which "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. Neither Mr. Cochran nor
Mr. Bowen alleges that his hearing loss (or in Mr.
Bowen's case, his tinnitus) was caused by a sudden
traumatic event. Both allege that their respective conditions
are occupational diseases.
Compensation For Occupational Diseases, Generally
disease" is "a disease contracted by a covered
employee: (1) as the result of and in the course of
employment; and (2) that causes the covered employee to
become temporarily or permanently, partially or totally
incapacitated." LE § 9-101(g). Ordinarily, a
claimant's right to compensation for a disability caused
by occupational disease is governed by LE § 9-502.
Yox v. Tru-Rol Co., Inc., 380 Md. 326, 335 (2004).
That section essentially provides that an employer is liable
to its employees for an "occupational disease" that
is attributable to the type of employment and that resulted
from it. LE § 9-502(c)-(d); see Smith v.
Howard Cty., 177 Md.App. 327, 331-32 (2007).
is not enough just to be injured: LE § 9-502 requires
"[a]ctual incapacity from employment (whether total or
partial)" before an employee is eligible for
compensation due to occupational disease. Miller v.
Western Elec. Co., 310 Md. 173, 187 (1987);
Belschner v. Anchor Post Prods., Inc., 227 Md. 89,
93 (1961), superseded by statute on other
grounds as stated in Crawley v. Gen. Motors Corp., 70
Md.App. 100 (1987); Yox, 380 Md. at 335.
Specifically, 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" (emphasis added). The Act does not
define "incapacitated," but the Court of Appeals
has interpreted LE § 9-502 and its predecessors to mean
that the covered employee must not actually be able to
perform his work. See Belschner, 227 Md. at 93
("[A]n employee is not incapacitated within the intent
of the law 'if, though injured, [he] still has the
capacity, the ability to, and does continue to perform his
regular work, for which he was employed . . . .")
(quoting Lumbermen's Reciprocal Ass'n v.
Coody, 278 S.W. 856 (Tex.Civ.App. 1926)); accord
Miller, 310 Md. at 187.
Compensation for Occupational Deafness
though occupational deafness falls within the broad category
of "occupational diseases," Green, 398 Md.
at 524, the Act treats compensation for occupational deafness
differently than it treats occupational diseases
generally-for deafness, incapacitation or disablement are not
required. Other cases have described in depth the evolution
of this aspect of the law concerning occupational deafness,
see, e.g., Green, 398 Md. 512;
Yox, 380 Md. 326; Tru-Rol Co., Inc. v. Yox,
149 Md.App. 707 (2003), aff'd, 380 Md. 326
(2004); Crawley, 70 Md.App. 100, but it will suffice
here to say that compensability for occupational deafness
does not fall under LE § 9-502, as other occupational
diseases do, but under LE § 9-505 instead.
Green, 398 Md. at 523; Yox, 380 Md. at 336.
That section provides, in relevant part, that an employee is
entitled to compensation for hearing loss within certain
frequencies, and, notably, need not prove incapacitation or
disablement to recover:
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.
LE § 9-505(a); see also Green v. Carr Lowery Glass
Co., Inc., 170 Md.App. 845, 516 (2006) (the General
Assembly's purpose in enacting LE § 9-505 was
"to make occupational hearing loss compensable without
regard to 'disablement, '" that is, without
regard to a claimant's "inability to work or loss of
wages") (quoting Crawley, 70 Md.App. at 107),
aff'd, 398 Md. 512 (2007); accord Yox,
380 Md. at 336. But although there is no
disablement/incapacitation requirement, occupational deafness
claimants are entitled to compensation only if they can
establish hearing loss "within the specified technical
parameters" defined in LE § 9-650. Green,
170 Md.App. at 518. We discuss these provisions in more depth
below, but in brief, LE § 9-650 sets forth not only the
technical standards for hearing tests, but also the
mathematical formula for calculating the average hearing
Benefits: Generally and for Permanent Partial Disability
under LE § 9-627
employees establish their right to compensation for
occupational disease (under either LE § 9-502 or §
9-505), they are eligible to receive benefits. These fall
generally into four categories: medical benefits, disability
benefits, death benefits, and vocational rehabilitation
benefits. See Richard P. Gilbert, et al.,
Maryland Workers' Compensation Handbook
§ 9.01 at 9-3 (4th ed. 2014). In this case, the
Commission ordered the County to pay Mr. Cochran's and
Mr. Bowen's "causally related" medical
expenses. In addition, the Commission ordered the County to
pay permanent partial disability benefits to Mr. Bowen for
both his hearing loss and his tinnitus. The County
objects to the award of permanent partial disability benefits
for Mr. Bowen's tinnitus.
for permanent partial disability awarded under LE §
9-627 are "expressed by a number of dollars per week for
a fixed number of weeks." Swedo v. W.R. Grace
& Co., 211 Md.App. 391, 393 (2013),
aff'd, 439 Md. 441 (2014); see also LE
§ 9-626 through § 9-630. LE § 9-627 classifies
the body into two categories: "scheduled" losses or
injuries and "unscheduled" losses or injuries,
which also are called "other cases." Ralph
v. Sears Roebuck & Co., 102 Md.App. 387, 396
(1994), aff'd, 340 Md. 304 (1995).
determine the duration of permanent partial disability
payments for scheduled losses, the Commission determines the
extent of the body part's disability, then apportions the
number of weeks for which compensation is to be
paid. For example, if a claimant sustains a
25% loss of use of his hand and 250 weeks of compensation may
be awarded for a 100% loss, the Commission calculates 25% of
250 weeks, which equals 62.5 weeks. See Gilbert,
et al., Maryland Workers' Compensation
Handbook, § 9.03[b] at 9-13; see, e.g.,
Anderson, 192 Md.App. at 345.
injuries that qualify as "other cases" under LE
§ 9-627(k), the Commission first determines the
percentage by which the "industrial use" of the
employee's whole body was impaired by the occupational
disease (or accidental injury). In making that determination,
the Commission also must consider "the nature of the
physical disability" and "the age, experience,
occupation, and training" of the employee at the time
the occupational disease (or accidental injury) occurred. LE
§ 9-627(k)(2); see Gilbert, et al.,
Maryland Workers' Compensation Handbook, §
9.03[c] at 9-17. The Commission then determines the number
of weeks compensation is to be awarded by apportioning the
loss, using 500 weeks as the starting point. For example, for
a 10% "other cases" disability, the Commission
would award 50 weeks of compensation. See id. §
9.03[c] at 9-17.
respect to hearing loss, the statute identifies "the
total loss of hearing of 1 ear" and "the total loss
of hearing of both ears" as scheduled losses, with 125
weeks of compensation for one ear and 250 weeks of
compensation for two ears. LE § 9-627(d)(2). For Mr.
Bowen, the Commission ordered that he receive payments for
hearing loss to both ears as a scheduled loss under LE §
9-627(d)(2), for a duration proportional to 14.875% of 250
weeks. The Commission also awarded permanent partial
disability benefits for tinnitus as an unscheduled or
"other cases" loss under LE § 9-627(k), for a
duration proportional to 2% of 500 weeks for an
"industrial loss of use of the body."
County argues first that the Commission erred in
using the results of Mr. Cochran's earlier-in-time
audiogram that showed more hearing loss. The County does not
challenge the reliability of that audiogram, but instead
challenges the Commission's interpretation of LE §
9-650 in calculating Mr. Cochran's average hearing loss.
The County argues second that the Commission should
have calculated the deduction for age based on the years
between Mr. Cochran's 50th birthday and the
date of his audiogram. We discuss the first legal challenge
in the first section, and address the second one-which
overlaps with a question raised in Mr. Bowen's case-in
the next section. Finally, we address the third
issue regarding the award for Mr. Bowen's tinnitus under
LE § 9-627(k) in the last section.
The Commission did not err in calculating Mr. Cochran's
total average hearing loss under LE § 9-650(b)(2) by
relying on the results of the audiogram that showed more
Commission found that Mr. Cochran "sustained an
occupational disease of hearing loss" arising out of his
employment based on the earlier audiogram performed on
September 23, 2015. The County argues that the Commission
erred because the applicable statute-LE §
9-650(b)(2)(i)-required the Commission to use the results of
Mr. Cochran's later audiogram (performed in May 2016)
because those results were "lower" than the earlier
results, i.e., showed less hearing loss. Mr. Cochran
does not dispute that if the results of the May 2016
audiogram are used, he has no compensable occupational
deafness claim. Mr. Cochran responds that the County's
interpretation of LE § 9-650(b)(2)(i) is wrong and that
the Commission's reliance on the September 2015 audiogram
was proper. We hold that the Commission ...