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November 10, 2020

Maryland’s Highest Court Clarifies Hearing Loss Statute Age Deduction

The Maryland Court of Appeals recently issued a decision in Montgomery County v. Cochran and Bowen, No. 69, September Term, 2019.  In the case at hand, Anthony Cochran and Andrew Bowen were firefighters that served 34 and 36 years, respectively, for Montgomery County.  They retired at 57 years old and 56 years old.  Firefighter Cochran had a hearing test 2 years after retirement and Firefighter Bowen had a hearing test three years after retirement.

Maryland’s Workers’ Compensation Statute 9-650 lays out the steps necessary to calculate industrial hearing loss.  Subsection (b) (3) allows a deduction of 0.5 decibels for every year that the claimant is over 50 years old.

Counsel for Montgomery County argued that the age deduction should be from the date of the hearing test to age 50.  Counsel for the firefighters argued that age deduction ends at retirement.  In Firefighter Cochran’s case, he retired at age 57 and was 59 at the time of his hearing test.  The dispute was whether the age deduction should be based on 7 years or 9 years. 

Firefighter Bowen was 56 years old at the time of his retirement, but his hearing test did not occur until he was 59 years old.  In his claim, the dispute was whether the age deduction should be for 6 years or 9 years.  Firefighter Bowen also alleged tinnitus as part of his claim, which is defined as a non-stop ringing sound in the ear that is not measurable.

The Commission applied the age deduction from age at retirement in both cases.  The County appealed the decisions and the Circuit Court in each case applied the same standard as the Commission.  The cases were consolidated for review before the Court of Special Appeals. The Court of Special Appeals affirmed the lower court’s rulings and rationale, but held that for tinnitus to be compensable the claimant needs to provide a date of disablement.  In Maryland, even though hearing loss is deemed an occupational disease which would require a date of disablement, occupational hearing loss is compensable based on a mathematical formula and does not require a date from which claimant was unable to work, commonly referred to as a date of disablement.

Upon review, the Court of Appeals held that the age deduction under the Occupational Deafness Statute sets the cut off for the age deduction on their respective retirement dates, not the date of their audiogram to test their hearing loss.  The Court of Appeals also held that the issue of whether tinnitus is part of the Occupational Disease Statute 9-502 or Occupational Deafness Statute 9-505 was not properly before the Court of Special Appeals and their opinion on the issue of tinnitus was reversed and remanded.