Is Tinnitus an Ordinary Occupational Disease or Occupational Deafness?

“Everyone seeks damages and everyone agrees

That these are classic symptoms of a monetary squeeze”[1]

Tinnitus is a ringing of the ears. Keep this in mind if you decide to listen to the above-referenced song by 1970’s British rock band, Dire Straits. This same song is referenced in the beginning of the Court of Special Appeals opinion in the case of Montgomery County v. Cochran, 243 Md. App. 102 (2019). The recent opinions by Maryland’s Court of Special Appeals in Montgomery County v. Cochran, 243 Md. App. 102 (2019) and Maryland’s Court of Appeals in Montgomery County, Maryland v. Anthony G. Cochran and Andrew Bowen, No. 69, September Term 2019; leave open the question of whether tinnitus is an ordinary occupational disease or if tinnitus falls under the umbrella of occupational deafness.

Ordinary occupational diseases are codified and compensated for under Maryland Code, Ann., Labor & Employment § 9-502. Whereas, occupational deafness is codified and compensated specifically under Maryland Code, Ann., Labor & Employment § 9-505. In Montgomery County v. Cochran, 243 Md. App. 102 (2019), Maryland’s Court of Special Appeals definitively states that “compensation for tinnitus is analyzed under LE § 9-502 as an occupational disease” and goes on to say that “unless and until the General Assembly says otherwise, compensation for tinnitus [will be] analyzed under LE § 9-502 as an occupational disease.” Id. There is no question that the Court of Special Appeals opinion in Montgomery County v. Cochran, 243 Md. App. 102 (2019) classifies tinnitus as an ordinary occupational disease under Maryland Code, Ann., Labor & Employment § 9-502 and not occupational deafness under Maryland Code, Ann., Labor & Employment § 9-505.

This otherwise clear decision by the Court of Special Appeals is muddied by the Court of Appeals subsequent decision in Montgomery County, Maryland v. Anthony G. Cochran and Andrew Bowen, No. 69, September Term 2019, concerning the same Claimants. The Court of Appeals in Montgomery County, Maryland v. Anthony G. Cochran and Andrew Bowen, No. 69, September Term 2019, held that the Court of Special Appeals erred when it decided that tinnitus was an ordinary occupational disease that was not covered by Maryland Code, Ann., Labor & Employment § 9-505 because Montgomery County had not raised the issue on appeal. As a result, the Court of Appeals should not have decided if tinnitus was an ordinary occupational disease or if it was covered by the occupational deafness statute.

The reason the above distinction is significant is because for a claimant to adequately recover for occupational deafness, there is no requirement that claimant allege disability. Conversely to recover for an ordinary occupational disease, the claimant must allege disability.

Disability occurs when “a covered employee becoming partially or totally incapacitated: (1) because of an occupational disease; and (2) from performing the work of the covered employee in the last occupation in which the covered employee was injuriously exposed to the hazards of the occupational disease.” Montgomery County v. Cochran, 243 Md. App. 102 (2019), citing Maryland Code, Ann., Labor & Employment §§ 9-502(a). While incapacity is not defined by Maryland’s Worker’s Compensation statute, the Court of Special Appeals defined it as when “the covered employee must not actually be able to perform his work.” Id. quoting, Belschner v. Anchor Post Prods. Inc., 227 Md. 89, 93 (1961). The bar is higher to adequately allege an occupational disease than to allege occupational deafness.

While the opinions of the Court of Appeals and the Court of Special Appeals make it uncertain how tinnitus cases will be decided in the future; the precedent established by the Court of Special Appeals in Montgomery County v. Cochran, 243 Md. App. 102 (2019) classifies tinnitus as an occupational disease requiring claimant to allege disability in order to be bring a compensable claim. Under this precedent, Claimants seeking to bring tinnitus claims will need to allege disability in order to adequately allege their claims.

[1] “Industrial Disease,” Dire Straits, from Love Over Gold (Vertigo Records 1982).

Stephen C. Craig, Jr.