Montgomery Cnty. v. Cochran

Decision Date01 November 2019
Docket NumberNo. 2930, Sept. Term, 2018,2930, Sept. Term, 2018
Citation243 Md.App. 102,219 A.3d 122
Parties MONTGOMERY COUNTY, Maryland v. Anthony G. COCHRAN and Andrew Bowen
CourtCourt of Special Appeals of Maryland

Argued by: Wendy Beth Karpel (Marc P. Hansen, County Attorney, John P. Markovs, Deputy County Attorney, Edward B. Lattner, Chief Division of Government Operations, Kathryn Lloyd on the brief) all of Rockville, MD, for Appellant.

Argued by: Kenneth M. Berman of Gaithersburg, MD, for Appellee.

Nazarian, Wells, Sally A. Adkins, (Senior Judge, Specially Assigned), JJ.*

Opinion by Nazarian, J.

Warning lights are flashing down at Quality Control Somebody threw a spanner and they threw him in the hole There's rumors in the loading bay and anger in the town Somebody blew the whistle and the walls came down There's a meeting in the boardroom, they're trying to trace the smell There's leaking in the washroom, there's a sneak in personnel Somewhere in the corridor someone was heard to sneeze Goodness me, could this be Industrial Disease?1

These appeals plunge us into uncharted waters deep in the "murky depths" of Maryland's workers' compensation law. Subsequent Injury Fund v. Teneyck , 317 Md. 626, 631, 566 A.2d 94 (1989). Anthony Cochran and Andrew Bowen were firefighters for Montgomery County for over thirty years. Both developed hearing loss from exposure to loud noises they encountered repeatedly on the job. They also developed tinnitus, a condition commonly described as a ringing in the ears. Several years after retiring, they filed claims for workers compensation benefits for their hearing loss and, in Mr. Bowen's case, tinnitus as well. Their claims raise unresolved questions about the inputs for the calculation of hearing loss under § 9-650(b) of the Labor and Employment Article ("LE")2 and about the appropriate classification of tinnitus under LE § 9-627(k).

The Maryland Workers' Compensation Commission (the "Commission") awarded benefits to both claimants. The County filed separate petitions for judicial review in the Circuit Court for Montgomery County. The circuit court affirmed the decisions of the Commission and the County appeals. We affirm the judgment in Mr. Cochran's case in toto and affirm the judgment in Mr. Bowen's case except as to the award of permanent partial disability benefits for his tinnitus.

I. BACKGROUND
A. Anthony G. Cochran

Mr. Cochran was a Montgomery County fire fighter for about 34 years. He retired in November 2013, when he was approximately 57 years old. He underwent an audiogram

about two years later, on September 23, 2015, and the parties agree that it showed hearing loss in both ears.

On March 21, 2016, Mr. Cochran filed a claim with the Commission seeking compensation for occupational deafness

. About two months later, on May 23, 2016, Mr. Cochran had another audiogram that also showed some hearing loss in each ear, although to a different (and overall lesser) degree than the first test.

On July 15, 2016, the Commission held an evidentiary hearing. Six days later, it entered an order finding that Mr. Cochran had sustained an occupational disease of hearing loss arising from his employment with the County as a firefighter, and that the date of disability was the date of the first audiogram

, September 23, 2015. The Commission ordered the County to pay Mr. Cochran's "causally related medical bills."

The County filed a petition for judicial review of the Commission's decision. On April 27, 2017, the circuit court held a hearing and affirmed the Commission's decision, stating its reasoning in open court, and entering a written order on May 2, 2018.

B. Andrew Bowen

Mr. Bowen was a firefighter for the County for about 36 years and retired in September 2013, when he was approximately 56 years old. On August 12, 2016, Mr. Bowen filed a claim with the Commission seeking compensation for occupational deafness

. Several months later, on October 13, 2016, Mr. Bowen had an audiogram, and the parties agree that the results showed hearing loss in both ears. The parties also do not dispute that Mr. Bowen suffers from tinnitus.

The parties did not identify, and we did not find, any expert testimony in the record defining tinnitus or describing its clinical symptoms. As defined in Stedman's Medical Dictionary , a person suffering from tinnitus "hears" sound that isn't generated by a stimulus outside of the ear:

Perception of a sound in the absence of an environmental acoustic stimulus. The sound can be a pure tone or noise including (ringing, whistling, hissing, roaring, or booming) in the ears. Tinnitus is usually associated with a loss of hearing. The site of origin of the sound percept may be in the central auditory pathways even if the initial lesion is in the end organ of the auditory system.

Tinnitus, Stedman's Medical Dictionary (28th ed. 2006). For his part, Mr. Bowen testified before the Commission that his tinnitus "is constant; it's ongoing; it's 24/7"; that it interferes with his ability to understand others while speaking; and that it affects his ability to sleep:

The ringing in my ears is constant; it's ongoing; it's 24/7. It affects everything that you do. Even with hearing aids, the ringing in your ears is always the [prevalent] sound that you hear. It interferes with normal hearing when you're speaking especially if you have a group of people you, virtually, have to look at that person to understand that what they're saying. It makes it impossible even with hearing aids to, actually, go to a movie theater; you just, you just can't understand what's [ ] being said.
The hearing -- the ringing also affects trying to sleep at night. There are times when you can't sleep because it's like you're hearing noise all the time. It just -- I realize at this point in time there's not a whole lot that they can do to fix it, but it's just constant, ongoing. Some days are better than others, but overall it's not a nice thing to have.3

On December 30, 2016, the Commission held a hearing, and on January 19, 2017, issued a Compensation Order that found "that [Mr. Bowen] sustained an occupational disease of binaural hearing loss and tinnitus arising out of and in the course of employment and finds that the first date of the claimant's disablement was January 24, 2005." The Commission ordered the County to "pay [his] causally related medical expenses" and authorized hearing aids.

The January 2017 order also stated that Mr. Bowen's case "will be held for further consideration by this Commission as to whether the claimant has sustained permanent partial disability, if any; the case will be reset only on request." On December 5, 2017, the Commission held another hearing at which it heard testimony and received evidence. On December 15, 2017, the Commission issued an order awarding Mr. Bowen compensation for a permanent partial disability for 14.875% loss of the use of both ears and for "2% industrial loss of use of the body" from tinnitus. The Commission awarded compensation of $257 per week for a period of 47.1875 weeks.4

The County sought judicial review of the Commission's decision. On October 12, 2018, the circuit court held a hearing on cross-motions for summary judgment. The court granted Mr. Bowen's motion for summary judgment and affirmed the decision of the Commission, stating its reasoning on the record in open court, and entering a written order on October 17, 2018.5

* * *

The County appealed. We supply additional facts as necessary below.

II. DISCUSSION

The County states one question concerning Mr. Cochran6 and three questions concerning Mr. Bowen,7 but they all boil down to three questions. First , did the Commission err in calculating Mr. Cochran's average hearing loss under LE § 9-650(b)(2) by using the results of his initial, earlier-in-time audiogram

that showed more hearing loss than the later-in-time audiogram ? Second , did the Commission err in determining, for Mr. Cochran and Mr. Bowen both, that the decibels deducted from the total average hearing loss under LE § 9-650(b)(3) should be calculated by counting the number of years between the date the firefighter turned fifty and the date each firefighter retired (as opposed to the date the hearing test or audiogram was performed)? Third , did the Commission err in awarding permanent partial disability benefits to Mr. Bowen for tinnitus under LE § 9-627(k) as an "unscheduled" or "other cases" loss?

A. Standard of Review

When reviewing workers' compensation awards in cases where the claimant sought review on the record (rather than a de novo review involving a new evidentiary hearing), we look through the decision of the circuit court and evaluate the Commission's decision directly. W.R. Grace & Co. v. Swedo , 439 Md. 441, 452–53, 96 A.3d 210 (2014). Our task is "to determine whether the Commission: (1) justly considered all of the facts about the ... occupational disease ...; (2) exceeded the powers granted to it under [the Act]; or (3) misconstrued the law and facts applicable in the case decided." LE § 9-745(c). "The court must confirm the decision unless it determines that the Commission exceeded its authority or misconstrued the law or facts." Richard Beavers Constr., Inc. v. Wagstaff , 236 Md. App. 1, 13, 180 A.3d 211 (2018) (citing Uninsured Empl'rs' Fund v. Pennel , 133 Md. App. 279, 288–89, 754 A.2d 1120 (2000) ).

That said, the Act also provides that in workers' compensation appeals, "the decision of the Commission is presumed to be prima facie correct." LE § 9-745(b)(1). In this case, though, the parties dispute what that means: the firefighters argue that the Commission's decisions on questions of law are entitled to "great deference," but the County argues that LE § 9-745(b) applies only to questions of fact and that the Commission's decisions on questions of law are entitled to "no deference." Both sides are overreaching. LE § 9-745(b)'s presumption of correctness "does not extend to questions of law, which we review independently." Montgomery Cty. v. Deibler , ...

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