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Montgomery County v. Cochran

Court of Special Appeals of Maryland

November 1, 2019


          Circuit Court for Montgomery County Case Nos. 423960 & 442304

          Nazarian, Wells, Adkins, Sally A. (Senior Judge, Specially Assigned), JJ.

          OPINION [*]

          Nazarian, J.

          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 Disease?[1]

         These 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")[2] and about the appropriate classification of tinnitus under LE § 9-627(k).

         The 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.

         I. BACKGROUND

         A. Anthony G. Cochran

         Mr. 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.

         On 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 first test.

         On July 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 medical bills."

         The 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.

         B. Andrew Bowen

         Mr. 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.

         The 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.

         Tinnitus, 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.[3]

         On 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.

         The 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.[4]

         The 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.[5]

         The County appealed. We supply additional facts as necessary below.


         The County states one question concerning Mr. Cochran[6] and three questions concerning Mr. Bowen, [7] but 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" loss?

         A. Standard of Review

         When 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 (2000)).

         That 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)).

         Resolving 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).

         A few 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 472.

         B. The Statutory Scheme

         An understanding of the questions before us and the parties' arguments requires a 30, 000-foot look at the statutory scheme.

         "Workers' 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.

         1. Compensation For Occupational Diseases, Generally

         "Occupational 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.[8] LE § 9-502(c)-(d); see Smith v. Howard Cty., 177 Md.App. 327, 331-32 (2007).

          But it 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.

         2. Compensation for Occupational Deafness

         Even 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 loss.

         3. Benefits: Generally and for Permanent Partial Disability under LE § 9-627

         Once 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.[9] The County objects to the award of permanent partial disability benefits for Mr. Bowen's tinnitus.

         Benefits 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, [10] which also are called "other cases." Ralph v. Sears Roebuck & Co., 102 Md.App. 387, 396 (1994), aff'd, 340 Md. 304 (1995).

         To 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.[11] 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[4][b] at 9-13; see, e.g., Anderson, 192 Md.App. at 345.

         For 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[4][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[4][c] at 9-17.

         With 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."

         C. Analysis

         The 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.

         1. 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 hearing loss.

         The 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 ยง 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 ...

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