Case Update: Court of Appeals Holds Date of a Claimant's Retirement is the Time of Last Exposure to Industrial Noise


Claimants Cochran and Bowen were firefighters for Montgomery County for over thirty years. They both developed hearing loss from exposure to loud noises encountered repeatedly on the job. Bowen also developed tinnitus. A few years after they retired, both Claimants underwent audiograms which revealed hearing loss. They then filed claims for workers' compensation benefits. One of the Claimants underwent two audiograms, the first of which revealed a higher amount of hearing loss than the second. The later audiogram revealed lower results that would not qualify as a compensable occupational deafness claim under the Act.

The Workers’ Compensation Act states that an employer shall provide compensation to a covered employee for loss of hearing due to industrial noise in specified frequencies, also known as occupational deafness, or for a disability resulting from an occupational disease. LE §9-650 sets forth the formula for calculating total average hearing loss and LE §9-650(b)(3) provides for a deduction of the average decibel loss. The purpose of the deduction is to account for the hearing loss that all individuals experience as part of the aging process from nonoccupational causes.

The Commission found that both Claimants sustained a compensable occupational disease of hearing loss and additionally found that Bowen sustained a compensable occupational disease of tinnitus. The Commission awarded compensation and calculated the deduction under LE §9-650(b)(3) by counting the number of years between each man’s 50th birthday and the date of his retirement. Bowen was subsequently awarded permanent partial disability for hearing loss and for tinnitus. The County sought judicial review of both decisions in the Circuit Court, which affirmed the decision of the Commission. The County argued that the date to be used for purposes of the deduction in LE §9-650(b)(3) was the date of the last audiogram and not the date of retirement. On appeal, the Court of Special Appeals affirmed the Commission’s calculation of the deduction, and further held that the Commission erred in awarding permanent partial disability benefits to Bowen for tinnitus and that compensation for tinnitus must be determined under LE §9-502 as an ordinary occupational disease, not under LE §9-505 as part of occupational deafness.

The issue before the Court of Appeals was whether the phrase “last exposure to industrial noise” as used in LE §9-650(b)(3) means the date that an employee is last exposed to occupational noise at work (date of retirement) or whether it means the date of a hearing test measuring hearing loss.

The Court held that the plain and ordinary meaning of the term “industrial noise” as used in LE §9-650(b)(3) is occupational noise or noise encountered in the workplace in the employment of the employer and accordingly, the phrase “time of the last exposure to industrial noise” means the date that an employee is last exposed to occupational noise, i.e., the date of the employee’s retirement, and not the date of a hearing test measuring hearing loss. The Court found support for its holding in the relevant legislative history.

The Court also held that the Court of Special Appeals erred in reversing the Commission’s decision as to Bowen’s tinnitus because any issue as to whether the Claimant had sustained a compensable disablement due to tinnitus was not before the court. Because it concluded that the issue was not before the Court of Special Appeals, the Court of Appeals did not address whether a claim for tinnitus must be raised under LE §9-502 as an occupational disease for which disablement must be established or under LE §9-505 as part of an occupational deafness claim.

In a concurring Opinion, Judge McDonald rejected the Majority’s use of the plain meaning analysis for the particular phrase at issue. Judge McDonald stated that neither interpretation of the phrase was favored by the statutory language, and therefore, to the extent that the plain language of the Act is ambiguous or unclear, it must be construed as liberally in favor of injured employee as its provisions will permit in order to effectuate its benevolent purposes. Judge McDonald also noted a lack of legislative intent on how the hearing loss statute should be applied to a retiree, whereas the Majority found support in the legislative history and intent.

A copy of the Opinion can be found at: