Green v. Carr Lowery Glass Co., Inc.

⁵⁰⁴ SHARER, Judge. In this appeal we shall construe several provisions of the Maryland Code relating to disablement and entitlement to workers’ compensation benefits resulting from hearing impairment. Judicial review of an order of the Workers’ Compensation Commission was sought in the Circuit Court for Baltimore City by Frederick Green, appellant. Cross motions for summary judgment were filed by appellant, and by his employer, Carr Lowery Glass Company, and its insurer, the Injured Workers’ Insurance Fund, appellees (collectively “the employer”).

Following a hearing, the circuit court granted the employer’s motion for summary judgment, thus giving rise to this appeal in which appellant asks: 1 1. Is a claimant whose hearing has been damaged as a result of his occupation, and who meets the criteria for benefits under LE § 9-505, entitled to have hearing aids provided by the employer and insurer, despite the fact that he does not meet the criteria of LE § 9-650? [2] For the reasons that follow, we affirm the judgment of the circuit court. FACTUAL and PROCEDURAL BACKGROUND The material facts in this case are not disputed, thus we recount them only to the extent necessary to resolve the legal issue presented. ⁵⁰⁵ On August 3, 2004, appellant, employed by Carr Lowery Glass Company as a mold shop worker for more than 30 years, filed a notice of employee’s claim for workers’ compensation benefits. Appellant asserted a date of disablement of February 25, 2003, 3 alleging that “years of exposure to loud glass machine(s) caused loss of hearing.” On October 19, 2004, a hearing evaluation was performed, at appellant’s request, by Brian Kaplan, M.D., a physician affiliated with Ear, Nose & Throat Associates.

Dr. Kaplan provided the following evaluation of appellant’s condition: [Appellant] 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 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 $5125.00. I have recommended good hearing protection [in] the future when in loud environments and will plan seeing him back on an as needed basis. (Emphasis added).

Of importance to appellant’s claim was that although the compensation formula computation compiled by Dr. Kaplan indicated that appellant suffered zero percent hearing loss under the Maryland Workers’ Compensation formula, appellant did suffer some hearing loss within the frequencies of the 2000 and 3000 hertz range. Following a hearing on appellant’s claim, the Commission passed an order on February 10, 2005, denying compensation. The Commission found “on the issues presented that [appel ⁵⁰⁶ lant] did not sustain an occupational disease of binaural hearing loss arising out and in the course of employment as alleged to have occurred February 25, 2003____” On February 17, 2005, appellant filed a petition for judicial review. The circuit court held a hearing on May 27, 2005, in order to entertain the parties’ opposing motions for summary judgment.

Thereafter, the court issued an oral opinion: THE COURT: So I think again, inferring the legislative intent as best as I can, it is that a threshold has to be met before there’s a right to medical benefits, and to the extent I can discern any other legislative intent, I look at 9-660 as it currently exists, and for whatever it’s worth, it says “compensable hernia.” Again, some intent indicated that in order to get medical services, you have to be within the threshold established by the Act. So my view is you do have to meet the threshold under 101-25A, now codified in 9-650, in order to be entitled to medical benefits. And certainly, if I were writing the Workers Compensation Statute, it would seem rational to me to provide for medical services for someone suffering hearing loss as a result of his or her employment, regardless of whether it met the threshold. However, I think the principle that ambiguities in the statute should be construed in favor of the Claimant, which certainly is an unarguable principle, only goes so far.

And I think that the legislative intent from what I’ve been able to determine, although when I say, I guess it requires close reading to determine it, that doesn’t necessarily mean that, I don’t think the principle of construing the statute in favor of the Claimant means that you hold everything in favor of the Complainant even if you think the legislative intent was to the contrary. So I believe that it is required that the Claimant meet the standard of 9-650 before being entitled to medical benefits, and for that reason, it being entirely a question of law, as the parties agree, I’m going to grant the Employer/Tnsur ⁵⁰⁷ er’s Motion for Summary Judgment, and I’m going to deny the Claimant’s Motion for Summary Judgment. The court’s bench opinion was followed on May 31, 2005, by a written order which granted summary judgment in favor of the employer, denied appellant’s motion for summary judgment, and affirmed the decision of the Commission. Appellant’s timely appeal followed.

Standard of Review Summary judgment may be granted “if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” Md. Rule 2 — 501(f)- Further, [w]e review a circuit court’s order granting summary judgment de novo. We determine whether there is any dispute of material fact, and, if there is none, we then determine whether the court was legally correct in its ruling. As we undertake this review, “ ‘we construe the facts properly before the court, and any reasonable inferences that may be drawn from them, in the light most favorable to the non-moving party.’ ” “ ‘We ordinarily will uphold the grant of summary judgment only on a ground relied on by the trial court.’ ” Stanley v. Am. Fed’n of State & Mun.

Employees Local No. 553, 165 Md.App. 1, 13 , 884 A.2d 724 (2005) (citations omitted). Our standard is further refined by the requirement that “[ajppellate review of a summary judgment [be] limited to the issue of whether the trial court was ‘legally correct.’ ” Honeycutt v. Honeycutt, 150 Md.App. 604 , 612 n. 4, 822 A.2d 551 (2003); see also AJ. Decoster Co. v. Westinghouse, 333 Md. 245, 261 , 634 A.2d 1330 (1994). Further, “[w]hen both sides file cross motions for summary judgment, as in the present case, the judge must assess each party’s motion on its merits, drawing all reasonable factual inferences against the moving party.” MAMSI Life & Health Ins.

Co. v. Callaway, 375 Md. ⁵⁰⁸ 261, 278, 825 A.2d 995 (2003)(citing Taylor v. NationsBank, N.A., 365 Md. 166, 174 , 776 A.2d 645 (2001)). DISCUSSION 1. Is a claimant whose hearing has been damaged as a result of his occupation, and who meets the criteria for benefits under LE § 9-505, entitled to have hearing aids provided by the employer and insurer, despite the fact that he does not meet the criteria of LE § 9-650? Principles of Statutory Construction Our task in deciding the issue presented in this appeal is one of statutory construction.

The Court of Appeals in Derry v. State, 358 Md. 325, 335-36, 748 A.2d 478 (2000), recounted the following well-honored principles of statutory construction: As this Court repeatedly has made clear, the paramount goal of statutory interpretation is to identify and effectuate the legislative intent underlying the statute(s) at issue. The legislative intent of a statute primarily reveals itself, through its very own words. As a rule, we view the words of a statute in ordinary terms, in their natural meaning, in the manner in which they are most commonly understood. If the words of a statute clearly and unambiguously delineate the legislative intent, ours is an ephemeral enterprise: we need investigate no further but simply apply the statute as it reads.

Even so, we do not view the plain language of a statute in a vacuum. As we have often reiterated, While the language of the statute is the primary source for determining legislative intention, the plain meaning rule of construction is not absolute; rather, the statute must be construed reasonably with reference to the purpose, aim, or policy of the enacting body. The Court will look at the larger context, including the legislative purpose, within which statutory language appears. (Internal citations omitted). “[T]his Court will ‘neither add nor delete words in order to give the statute a meaning not otherwise eommunicat ⁵⁰⁹ ed by the language used.’ ” Harris v. Bd. of Educ., 375 Md. 21, 31 , 825 A.2d 365 (2003)(citing Blind Indus. v. Dep’t of Gen.

Servs., 371 Md. 221, 231 , 808 A.2d 782 (2002)). We “read statutes in harmony, so that all provisions can be given reasonable effect.” Yox, supra, 380 Md. at 337, 844 A.2d 1151 (citing Balt. Gas & Elec. v. Public Serv. Comm’n, 305 Md. 145, 157 , 501 A.2d 1307 (1986)).

Further, “[w]e do not interpret statutes in ways that produce absurd results that could never have been intended by the legislature.” Id. The Court of Appeals reiterated the following “well-settled” and specific guidelines when construing provisions of the Workers’ Compensation Act (the “Act”), Maryland Code, Labor and Employment Article, Title 9 (1999 Repl.Vol., 2005 Supp.): As we have repeatedly emphasized, the Act is remedial in nature and ‘should be construed as liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes.’ Thus, in interpreting the Act, we do not apply the canon of construction that a statute in derogation of the common law should be strictly construed. § 9-102(b). Moreover, all sections of the Act must be read together, in conjunction with one another, to discern the true intent of the legislature. Of course, we seek to avoid an interpretation which would lead to an untenable or illogical outcome.

In construing the Act, as in construing all statutes, the paramount objective is to ascertain and give effect to the intent of the legislature. In interpreting the Act, we apply the following general principles. First, if the plain meaning of the statutory language is clear and unambiguous, and consistent with both the broad purposes of the legislation, and the specific purpose of the provision being interpreted, our inquiry is at an end. Second, when the meaning of the plain language is ambiguous or unclear, we seek to discern the intent of the legislature from surrounding circumstances, such as legislative history, prior case law, and the purposes upon which the statutory framework was based.

Last, applying a canon of construction specific to the Act, if ⁵¹⁰ the intent of the legislature is ambiguous or remains unclear, we resolve any uncertainty in favor of the claimant. This Court, however, may not stifle the plain meaning of the Act, or exceed its purposes, so that the injured worker may prevail. Similarly, the Court may not create ambiguity or uncertainty in the Act’s provisions where none exists so that a provision may be interpreted in favor of the injured claimant. Breitenbach v. N.B. Handy Co., 366 Md. 467, 472-73 , 784 A.2d 569 (2001) (internal citations omitted) (quoting Philip Elecs.

N. Am. v. Wright, 348 Md. 209, 212 , 703 A.2d 150 (1997)), superceded by statute on other grounds. Relevant Statutory Provisions Our primary review will be of the interplay between §§ 9— 505 (Occupational disease) and 9-650 (Calculation of percentage of hearing loss). Although recognizing the risk of excessive minutiae, we nonetheless shall set out the pertinent provisions of §§ 9-505, 9-649-651, and 9-660: § 9-505. Occupational deafness.

(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. § 9-649. Scope of part. A covered employee who suffers from occupational deafness shall be paid compensation in accordance with this Part VII of this subtitle. § 9-650.

Calculation of percentage of hearing loss. ⁵¹¹ (a) Measurement instruments. — (1) Hearing loss shall be measured by audiometric instrumentation that meets the following criteria: (1) 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 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 ⁵¹² 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