Case Update: Hearing Loss and Tinnitus


In Montgomery Cty v. Cochran and Bowen, both claimants were firefighters for Montgomery County for over thirty years. They both developed hearing loss from exposure to loud noises encountered repeatedly on the job, and one of the claimants also developed tinnitus.

A few years after they retired, both claimants underwent audiograms which revealed hearing loss and then filed claims for workers' compensation benefits. The Commission found that both claimants sustained an occupational disease of hearing loss arising out of an in the course of their employment and for one of the claimants, found that he sustained an occupational disease of tinnitus arising out of and in the course of his employment. The County sought judicial review of both decisions in the circuit court, which affirmed the decision of the Commission. Montgomery County filed an appeal with the Court of Special Appeals.

Under Maryland law, occupational deafness is an occupational disease, but the Workers' Compensation Act does not require incapacitation or disablement for occupational deafness like the Act does require for other occupational diseases. Instead, pursuant to LE § 9-505, employees are entitled to compensation for hearing loss within certain frequencies and the technical parameters of LE § 9-650.

One of the claimants underwent two audiograms, the first of which revealed a higher amount of hearing loss than the second. Specifically, the later audiogram revealed lower results that would not qualify as a compensable occupational deafness claim under the Act. Montgomery County argued that the later audiogram is what the Commission was required to use.

LE § 9-650 requires the Commission to calculate an injured worker's hearing loss using the "lowest measured losses." The Court of Special Appeals said that language does not require the Commission to use the lowest hearing loss ever tested and recorded for occupational deafness. The Court went on to say that LE § 9-650 sets forth a procedure and formula for calculating the level of a claimant's hearing loss during a single audiogram and does not dictate which results among multiple audiograms the Commission must use. The Court held that the Commission did not err in calculating the claimant's total average hearing loss by using the results of the earlier in time audiogram that showed more loss than the more recent test.

The Court also found that the Commission did not err in calculating the total average hearing loss for the claimants by counting the number of years between each firefighter's 50th birthday and the dates they retired. The Court explained that LE §9-650 required the commission to find the average measured loss across four specified frequencies for each of the men and to deduct one half of a decibel for each year of the covered employee's age over 50 at the time of the last exposure to industrial noise. Industrial noise is not defined under the Act. The Commission interpreted the date of the last exposure to industrial noise as the dates the firefighters retired. And the Court did not find any error in the Commission's decision to use the claimants' retirement dates as the date of last exposure.

However, the Court did find that the Commission erred in awarding one of the claimant's permanent partial disability benefits for tinnitus under LE § 9-627(k). The Court held that compensation for tinnitus is analyzed under LE § 9-502 as an occupational disease, absent an intent of the General Assembly to encompass tinnitus with occupational deafness under LE § 9-505 and LE § 9-650. Therefore, a claim for an occupational disease of tinnitus requires a disablement. The claimant in this case had not established a disablement regarding tinnitus, and therefore, the Commission erred in awarding him benefits for tinnitus.

The Court did go on to say that in a case where a disablement form tinnitus is established, an award of permanent partial disability benefits as "other cases" under LE § 9-627(k) would not necessarily be improper.

A copy of the Opinion can be found at: