One of the most pervasive, yet under-claimed, workplace injuries is hearing loss. Heavy machinery, power tools, lawn equipment, engines, and sirens all have the potential to cause hearing loss with prolonged use or exposure. Police, firefighters, machinists, lawn care workers, and factory workers are all exposed to noise hazards yet we see relatively few hearing loss claims.
Hearing loss is unique in the Maryland Workers’ Compensation scheme in that it does not require any disablement, but instead is simply objectively calculated using a number of parameter, including audiology testing, age, and last exposure to industrial noise. Separately, exposure to these noises can cause tinnitus, which can range from irritating to debilitating in its effects. Unfortunately, despite its apparent simplicity, the hearing loss statute has been the subject of debate for years. That debate was resolved by the Court of Special Appeals’ decision in companion cases Montgomery County, Maryland v. Cochran and Montgomery County, Maryland v. Bowen.
The Court was asked what boiled down to three questions: Is the Commission required to use the most recent audiogram; is age reduction calculated to the date of retirement or the date of the audiogram; and is tinnitus part of hearing loss/injury to the ear vs. a separate “other cases” award?
On the first issue, the Court found that the Commission is not bound to use the most recent in time audiogram. The Court stated that the “lowest measured loss” language did not require the Commission to rely on the audiogram showing the lowest measured loss for all time; it simply provided parameters for a single audiological test- that the lowest of multiple readings is to be used. As for which test to use, it is a factual issue for the Commission to determine, as they could vary given room conditions, equipment conditions, and the audiologist performing the test.
On the second issue, reduction for age-related hearing loss after the age of 50 will be calculated by reduction of ½ dB for every year from age 50 to retirement, and not from age 50 to the time of the audiogram. In reaching this conclusion, it rejected the county’s argument that the “industrial noise” component of this section meant the noise to which all people are exposed in everyday life. This finding of the Court will particularly help young retirees such as public safety officers.
On the final issue, the Court found that tinnitus was a separate and distinct disease from hearing loss, and therefore, it would be calculated under “other cases”. However, in finding it is an occupational disease, tinnitus will require a disablement before becoming compensable, which seems unlikely in most cases.
If you have suffered or suspect you have suffered hearing loss as a result of your job, Call McCarthy Wilson and we will be happy to walk you through your claim.
Montgomery County, Maryland v. Cochran and Bowen, Case No. 0662, 2018 Term.
Read it here: https://www.courts.state.md.us/data/opinions/cosa/2019/0662s18.pdf