Green v. Carr Lowery Glass Co.

RAKER, J. We are called upon in this case to interpret certain provisions of the Workers’ Compensation Act, Maryland Code (1999, 2006 Cum.Supp.), § 9-101 et seq. of the Labor and Employment Article. 1 We must decide whether a claimant whose hearing has been damaged within the frequencies established in § 9-505 as a result of his occupation is entitled to have hearing aids provided by his employer/insurer, even though he does not meet the criteria for monetary compensation under § 9-650. We shall hold that petitioner is not eligible for medical benefits, i.e. hearing aids, under § 9-660 unless he is eligible for compensation under § 9-505 and § 9-650. Petitioner, Frederick Green, was employed by the Carr Lowery Glass Company for over thirty years as a mold shop worker. On August 3, 2004, he filed a claim with the Workers’ Compensation Commission (hereinafter “Commission”), alleging that “years of exposure to loud glass machine[s] caused loss of hearing.” Dr. Brian Kaplan, a physician affiliated with Ear, Nose & Throat Associates in Baltimore, evaluated petitioner’s hearing on October 19, 2004. 2 Dr. Kaplan’s evaluation stated as follows: ⁵¹⁵ “Mr. Green does have a mild to severe high frequency sensorineural hearing loss.

His Maryland Compensation Formula for hearing loss is zero percent. However, this pattern of hearing loss is consistent with that caused by significant environmental noise exposure. This noise exposure and hearing loss is likely also the cause of the factors for his bilateral tinnitus. He is a good hearing aid candidate given the degree of loss and discrimination scores.

The cost of hearing aids is $5,125.00. I have recommended good hearing protection in the future when in loud environments and will plan on seeing him back on an as needed basis.” According to Dr. Kaplan’s audiogram, petitioner suffered some hearing loss in the range of frequencies between 2000 and 3000 hertz. The Commission held a hearing on January 28, 2005 to determine whether petitioner sustained an occupational disease arising out of and in the course of employment, and whether petitioner was entitled to hearing aids, as recommended by Dr. Kaplan. By written order, on February 10, 2005, the Commission denied petitioner’s claim, finding that petitioner “did not sustain an occupational disease of binaural hearing loss arising out and in the course of employment as alleged to have occurred on February 25, 2003, and ... that the [hearing aids] issue is moot.” Green filed a petition for judicial review, and both parties moved for summary judgment.

On May 27, 2005, after hearing arguments by the parties, the Circuit Court for Baltimore City issued an oral opinion. The court concluded, “it is required that the claimant meet the standard of § 9-650 before being entitled to medical benefits.” By written order on May 31, 2005, the court granted summary judgment in favor of the employer/insurer, denied petitioner’s motion for summary judgment, and affirmed the decision of the Commission. Green filed a timely appeal with the Court of Special Appeals. The Court of Special Appeals reviewed the contest ⁵¹⁶ ed statutory provisions, § 9-505 and § 9-650, and concluded that an inquiry of the legislative history was unnecessary because the statutory language is sufficiently clear.

Green v. Carr, 170 Md.App. 502, 514 , 907 A.2d 845, 851 (2006). The intermediate appellate court noted also that the language of § 9-505 is “much too broad to function independently and serve as the sole basis for compensation, medical expenses, or otherwise.” Id. at 517, 907 A.2d at 853 . Instead, the court held that § 9-505 establishes that occupational deafness due to industrial noise in certain frequencies is a compensable condition, and that one who suffers occupational deafness is entitled to compensation and benefits if he or she also meets the requirements in § 9-650. Id. at 518-19, 907 A.2d at 854 .

This Court granted Green’s petition for writ of certiorari to address the following question: “Is a Claimant whose hearing has been damaged as a result of his occupation and who meets the criteria for benefits under Labor & Employment Article § 9-505 entitled to have hearing aids provided by the Employer/Insurer, despite the fact that he does not meet the criteria for monetary compensation under Labor & Employment Article § 9-650?” Green v. Lowery, 396 Md. 12 , 912 A.2d 648 (2006). The question of whether a trial court’s grant of summary judgment was proper is a question of law subject to de novo review on appeal. Cochran v. Norkunas, 398 Md. 1 , 919 A.2d 700 (2007). In reviewing a grant of summary judgment under Md. Rule 2-501, we independently review the record to determine whether the parties properly generated a genuine dispute of material fact and, if not, whether the moving party is entitled to judgment as a matter of law.

Md. Rule 2—501(f); see Hill v. Knapp, 396 Md. 700, 711 , 914 A.2d 1193, 1199 (2007). In the case sub judice, there is no genuine dispute of material fact. . We first recount briefly the history and statutory framework of Maryland’s Workers’ Compensation Act, as related to hearing loss in particular. Workers’ compensation encom ⁵¹⁷ passes two main categories of compensable events: accidental personal injury and occupational diseases. §§ 9-501, 9-502; Means v. Baltimore County, 344 Md. 661, 664 , 689 A.2d 1238, 1239 (1997); see also Yox v. Tru-Rol, 380 Md. 326, 330-36 , 844 A.2d 1151, 1153-57 (2004) (providing a detailed history of Maryland’s Workers’ Compensation Act).

Today, an employee’s hearing loss may fall into either category, depending on whether the employee experienced a sudden traumatic event or was exposed repeatedly to loud noises. See Yox, 380 Md. at 332 , 844 A.2d at 1154 . This was not always the case, however. As first enacted in 1914, the Workers’ Compensation Act provided compensation only for accidental injuries that arose out of and in the course of employment, and an employee was not required to show that his or her disability resulted in a loss of wages or earning capacity.

Yox, 380 Md. at 330-31 , 844 A.2d at 1153-54 . Thus, an employee who suffered the total loss of hearing in both ears due to a one-time accident that created a loud blast, for example, would have received compensation. See Belschner v. Anchor Post, 227 Md. 89, 92 , 175 A.2d 419, 420-21 (1961). Compensation for hearing loss as an occupational disease, however, was not provided until 1951.

See Yox, 380 Md. at 332 , 844 A.2d at 1154 . At that time, claims for occupational disease related to hearing loss were not compensable unless the employee showed that he or she was no longer able to work in the occupation that produced the disability. See Belschner, 227 Md. at 92-93 , 175 A.2d at 422 ; Yox, 380 Md. at 333-33 , 844 A.2d at 1154-55 . In 1967, the Legislature amended the Workers’ Compensation Act to create a separate provision dealing specifically with occupational disease hearing loss.

Yox, 380 Md. at 333-34 , 844 A.2d at 1155 . The new provision, § 25A of Article 101, provided that “occupational deafness shall be compensated according to the terms and conditions of this section” and set forth a testing methodology for determining eligibility for compensation. 1967 Md. Laws, Chap. 155; Crawley v. General Motors Corp., 70 Md.App. 100, 104 , 519 A.2d 1348, 1350 , cert. denied, 310 Md. 147 , 528 A.2d 473 (1987). The new provision stated that only hearing losses in the range of 500, ⁵¹⁸ 1000, and 2000 cycles per second were compensable, and provided that, “[i]f the losses of hearing average 15 decibels or less in the three frequencies, such losses of hearing shall not then constitute any compensable hearing disability.” 1967 Md. Laws, Chap. 155; Crawley, 70 Md.App. at 104 , 519 A.2d at 1350 ; see also Yox, 380 Md. at 334 , 844 A.2d at 1155-56 (summarizing compensability criteria).- We have recognized that the intent of the Legislature in enacting the new provision was “not only to provide technical criteria for measuring occupational loss of hearing but also to make,such loss compensable without regard to inability to work or loss of wages.” Yox, 380 Md. at 335 , 844 A.2d at 1156 (quoting Crawley v. General Motors Corp., 70 Md.App. 100, 107 , 519 A.2d 1348, 1352 (1987)). Thus, we held that the statute provided that an employee may be eligible for occupational disease compensation due to work-related hearing loss without a showing of disablement, ie., loss of wages or inability to perform regular work.

Yox, 380 Md. at 335 , 844 A.2d at 1156 ; Crawley, 70 Md.App. at 101 , 519 A.2d at 1349 . As part of the Legislature’s general code revision process in 1991, the Workers’ Compensation Act, Art. 101, was repealed and recodified as Title 9 of the Labor and Employment Article. Yox, 380 Md. at 335 , 844 A.2d at 1156 . The new statute split the former provisions regarding occupational hearing loss between subtitle 5, dealing with the entitlement to and liability for compensation, and subtitle 6, dealing with benefits. §§ 9-501 et seq.; Yox, 380 Md. at 335 , 844 A.2d at 1156 .

It is the 1991 codification of the statute that is at issue in this case. Our focus is primarily on three sections of the Workers’ Compensation Act, located in two of the subtitles of Title 9: § 9-505, which defines occupational deafness; § .9-650, which sets forth the criteria for calculating the percentage of hearing loss; and § 9-660, which provides for medical benefits. For clarity, we set forth the full text of these sections below. As additional context, we include also all of the text in Part VII of Subtitle 6, entitled “Occupational Deafness.” ⁵¹⁹ Subtitle 5, “Entitlement to and Liability for Compensation,” contains Section 9-505, entitled “Occupational deafness.” Section 9-505 states as follows: “(a) In general.—Except as otherwise provided, an employer shall provide compensation in accordance with this title to a covered employee for loss of hearing by the covered employee due to industrial noise in the frequencies of 500, 1,000, 2,000, and 3,000 hertz. “(b) Short-term employer.—An employer is not liable for compensation for occupational deafness under subsection (a) of this section unless the covered employee claiming benefits worked for the employer in employment that exposed the covered employee to harmful noise for at least 90 days.” Subtitle 6 of Title 9 is entitled “Benefits” and consists of several Parts.

Part I addresses general provisions, for example, while Part VII concerns occupational deafness and Part IX provides for medical benefits. Part VII starts with § 9-649, entitled “Scope of part.” Section 9-649 states as follows: “A covered employee who suffers from occupational deafness shall be paid compensation in accordance with this Part VII of this subtitle.” Section 9-650, entitled “Calculation of percentage of hearing loss,” provides: “(a) Measurement instruments.—(1) Hearing loss shall be measured by audiometric instrumentation that meets the following criteria: (i) ANSI 3.6-1996; (ii) ANSI S3.43-1992; and (iii) ANSI 3.39-1987 or any ANSI standard that supersedes the previous calibration or measurement criteria. (2) Measurements shall be conducted in a sound room that meets the ANSI 3.1-1991 criteria for maximum permissible ambient noise for audiometric test rooms. (3) Behavioral psychoacoustic measurements shall be obtained with instrumentation that utilizes insert earphones, as referenced in ANSI 3.6-1996.(4) Electrodiagnostic measurements such as auditory evoked potentials, acoustic emittance measurements, or distortion product otoacoustic emissions may be obtained to determine the nature and extent of workplace ⁵²⁰ hearing loss.

(5) Audiologic results shall be used in conjunction with other information to evaluate a claimant’s compensable hearing loss. “(b) Calculation—Average thresholds of hearing.—(1) The percentage of hearing loss for purposes of compensation for occupational deafness shall be determined by calculating the average, in decibels, of the thresholds of hearing for the frequencies of 500, 1,000, 2,000, and 3,000 hertz in accordance with paragraph (2) of this subsection. (2) The average of the thresholds in hearing shall be calculated by: (i) adding together the lowest measured losses in each of the 4 frequencies; and (ii) dividing the total by 4.(3) To allow for the average amount of hearing loss from nonoccupational causes found in the population at any given age, there shall be deducted from the total average decibel loss determined under paragraphs (1) and (2) of this subsection 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. “(c)(1) If the average hearing loss in the 4 frequencies determined under subsection (b) of this section is 25 decibels or less, the covered employee does not have a compensable hearing loss. (2) If the average hearing loss in the 4 frequencies determined under subsection (b) of this section is 91.7 decibels or more, the covered employee has a 100% compensable hearing loss. (3) For every decibel that the average hearing loss exceeds 25 decibels, the covered employee shall be allowed 1.5% of the compensable hearing loss, up to a maximum of 100% compensable hearing loss at 91.7 decibels. “(d) Binaural percentage of hearing loss.—The binaural percentage of hearing loss shall be determined by: (1) multiplying the percentage of hearing loss in the better ear by 5; (2) adding that product to the percentage of hearing loss in the poorer ear; and (3) dividing that sum by 6. “(e) Amplification device; bone conduction thresholds.—(1) In determining the percentage of hearing loss under this section, consideration may not be given to whether the use of an amplification device improves the ability of a covered ⁵²¹ employee to understand speech or enhance behavioral hearing thresholds.

(2)(i) In determining a workers’ compensation claim for noise-related hearing loss, audiologic data shall use both bone conduction and air conduction results, (ii) If a conductive loss is present, the bone conduction thresholds for each ear, rather than the air conduction levels, shall be used to calculate a claimant’s average hearing loss.” Section 9-651, entitled “Extent of Liability,” states as follows: “(a) In general.—Except as provided in subsection (b) of this section, an employer is liable for the full extent of the occupational deafness of a covered employee if: (1) the employment of the covered employee by the employer has contributed to any extent to the occupational deafness of the covered employee; and (2) the employer otherwise is liable under this section and § 9-505 of this title. “(b) Limitation on liability.—An employer is liable only for the part of the deafness attributable to the employment by the employer if the employer establishes by competent evidence, including the results of a professionally controlled hearing test, the extent of the deafness of the covered employee that existed before exposure to harmful noise in the employment of the employer.” Finally, § 9-660, located in Part IX “Medical Benefits” of Subtitle 6 and entitled “Provision of medical services and treatment,” states as follows: “(a) In general.—In addition to the compensation provided under this subtitle, if a covered employee has suffered an accidental personal injury, compensable hernia, or occupational disease the employer or its insurer promptly shall provide to the covered employee, as the Commission may require: (1) medical, surgical, or other attendance or treatment; (2) hospital and nursing services; (3) medicine; (4) crutches and other apparatus; and (5) artificial arms, feet, hands, and legs and other prosthetic appliances. “(b) Duration.—The employer or its insurer shall provide the