Md. high court sets workers’ comp hearing loss at retirement

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Workers over age 50 who are exposed to loud noises on the job emerged victorious at Maryland’s top court Monday as the judges ruled that the date for calculating hearing loss for workers’ compensation is their date of retirement and not when they later get their ears checked.

The Court of Appeals said the statutory demarcation for hearing-loss benefits – “last exposure to industrial noise” – plainly refers to the final noises heard on the job and not to post-retirement sounds experienced while walking to the hearing test.

Setting the line at the date of retirement is important because workers’ compensation for hearing loss is calculated based on decibel loss, and after age 50 the law deducts half a decibel from the calculation annually to account for ordinary, nonjob-related hearing loss. Setting the effective date at retirement rather than at the subsequent date of testing spares the worker the annual statutory deduction post-retirement.

The Court of Appeals’ decision was a win for Anthony Cochran and Andrew Bowen, longtime Montgomery County firefighters whose post-age-50 retirements were followed by auditory tests that revealed significant hearing loss due to their on-the-job exposure to sirens, air horns, engines and alarms.

The high court upheld the Workers’ Compensation Commission’s conclusion that the loss dated to their dates of retirement and not to when they later had their hearing checked, which would have resulted in lower benefits due to the annual half-decibel deduction.

Noting that the Workers Compensation Act addresses workplace injuries, the Court of Appeals rejected Montgomery County’s argument that the statute’s reference to the worker’s “last exposure to industrial noise” refers not to the final sounds the workers endured on the job but to the daily noises the workers heard before their post-retirement hearing tests.

“The plain meaning of the 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,” Judge Shirley M. Watts wrote.

“It would strain logic to conclude that ‘last exposure to industrial noise’ somehow means the date of a hearing test when (Labor and Employment Article) Section 9-650(b)(3) does not 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,” Watts added. “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.”

Watts was joined in the opinion by Chief Judge Mary Ellen Barbera and Judges Michele D. Hotten, Brynja M. Booth and Jonathan Biran.

In a concurring opinion, Judge Robert N. McDonald wrote that “last exposure to industrial noise” does not so plainly refer to the date of retirement. For example, a worker over age 50 could be reassigned to a job with little industrial noise years before he or she retires, added McDonald, who was joined in the concurrence by Judge Joseph M. Getty.

“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,” McDonald wrote.

However, he added the phrase must be interpreted as referring to the retirement date because of the high court’s observation in earlier cases that the Workers’ Compensation Act is “a remedial statute” that “must be construed as liberally in favor of injured employees as its provisions will permit in order to achieve its benevolent purposes.”

Kenneth M. Berman, the firefighters’ attorney, hailed what he called the high court’s recognition that “industrial” must mean “work-related” in the workers’ compensation context.

“It (workers’ compensation) came out of the industrial revolution” after all, said Berman, of Berman, Sobin, Gross, Feldman & Darby LLP in Gaithersburg.

Cochran and Bowen were both about 56 years old when they retired from the county fire department in 2013 after having served more than 33 years, according to court papers.

Cochran had an audiogram about two years later, which revealed hearing loss in both ears. Bowen’s hearing test three-years post retirement resulted in a similar diagnosis.

Both men filed workers’ compensation claims, citing their retirement dates as their last exposure to industrial noise. The county countered that their last exposure for worker’s compensation purposes was the date of their audiograms.

The commission sided with the retired firefighters, as did the Montgomery County Circuit Court and the Court of Special Appeals.

The county then sought review by the high court.

Neither Montgomery County officials nor the firefighters’ attorney, Kenneth M. Berman, immediately returned messages seeking comment on the Court of Appeals’ decision.

Berman is with Berman, Sobin, Gross, Feldman & Darby LLP in Gaithersburg.

The Court of Appeals rendered its decision in Montgomery County, Md., v. Anthony G. Cochran and Andrew Bowen, No. 69, September Term 2019.