Listen Up! Maryland Court of Appeals Sets the Record Straight on Occupational Deafness

The Maryland Workers’ Compensation Act allows workers to recover benefits for hearing loss sustained on the job. However, the act also provides for a specific reduction in the measurement for hearing loss to account for natural age-related hearing loss. Specifically, there is a one-half of a decibel deduction for each year of the covered employee’s age over 50 at the time of the last exposure to industrial noise. While this principle seems somewhat straightforward, it can be a bit more complicated.

The Court of Appeals recently revisited this issue and other related issues in Montgomery County, Maryland v. Anthony G. Cochran and Andrew Bowen, 471 Md. 186 (2020). This case involved two Montgomery County firefighters, Anthony Cochran and Andrew Bowen. Both men retired from Montgomery County after serving over 30 years as firefighters. While working, both men were exposed to loud noises, which caused hearing loss and tinnitus.  Several years after retiring, Mr. Cochran and Mr. Bowen filed workers’ compensation claims, alleging work-related hearing loss. Mr. Bowen also alleged tinnitus. In support of their claims, both Mr. Cochran and Mr. Bowen presented audiograms performed several years after retirement and demonstrated binaural hearing loss. It should be noted that Mr. Cochran had two audiograms with different results. Both claims were ultimately found compensable, and the benefits were awarded to the claimants. However, Montgomery County took issue with how the statutory reduction in benefits was applied to account for natural age-related hearing loss and which audiogram should be controlling in those calculations. Montgomery County also took issue with the benefits awarded for tinnitus. As a result, Montgomery County initiated an appeal in each case, and both joined together at the appellate level.

The Court of Appeals addressed three issues regarding the calculation of benefits in hearing loss cases. The questions addressed were as follows: (1) Did the commission err by using an earlier-in-time audiogram that showed more hearing loss than the later-in-time audiogram? (2) Did the commission err in determining that the decibels deducted from the total average hearing loss should be calculated by counting the number of years between the date the firefighter turned fifty and the date each firefighter retired? (3) Did the commission err in awarding permanent partial disability benefits to Mr. Bowen for tinnitus as an “unscheduled” or “other cases” loss?

In addressing the first issue, the Court of Appeals found the commission did not err in calculating Mr. Cochran’s total average hearing loss by relying on the results of an audiogram that showed more hearing loss, as opposed to relying on a subsequent audiogram that showed less hearing loss. In support of this decision, the court found that the plain language of the statute does not expressly provide for any parameters as to which audiogram should be used when there are multiple audiogram results.

In addressing the second issue, the Court of Appeals found the commission did not err in calculating the deduction of decibels from the average hearing loss sustained by Mr. Cochran and Mr. Bowen by counting the number of years between each of the firefighter’s 50th birthdays and the dates they retired from service, as opposed to using the post-retirement audiogram as the controlling end date for the deductions. In support of this decision, the court again reviewed the plain language of the statute, which provides that one-half of a decibel of hearing loss is to be deducted for each year of the covered employee’s age over 50 at the time of the last exposure to industrial noise. The court found that the last exposure to industrial noise of Mr. Cochran and Mr. Bowen would have been the date of each firefighters’ respective retirements.

The final issue addressed by the court was whether the commission erred in awarding permanent partial disability benefits to Mr. Bowen for tinnitus as an “unscheduled” or “other cases” loss. As a threshold question and a matter of first impression, the court held that tinnitus should be considered an ordinary occupational disease instead of a part of occupational deafness. With that said, the court found that the commission erred in awarding Mr. Bowen compensation for tinnitus because he alleged it as part of occupational deafness and did not attempt to establish disablement for this condition prerequisite for compensability in an ordinary occupational disease. Occupational deafness does not require a disablement. However, the court went on to say that had Mr. Bowen established a disablement for his tinnitus; there would not have been an error in awarding permanent partial disability benefits for tinnitus as an “other cases” injury pursuant to Labor & Employment § 9-627(k).

There are four takeaways from this case. First, in a situation where there are multiple audiogram results, the statute does not provide any guidance on which audiogram can be used when calculating the claimant’s hearing loss. Second, the end date for the statutory reduction for natural age-related hearing loss is when the claimant was last exposed to industrial noise, not the date of the post-retirement audiogram. Third, tinnitus is considered an ordinary occupational disease and is not a part of occupational deafness. Because of this distinction, the claimant must allege a disablement to recover from tinnitus. Finally, if the claimant is successful in alleging a disablement as a result of tinnitus, this disease is awarded benefits under “other cases” for the purpose of calculating permanent partial disability benefits.

D.C. Department of Employment Services Issues 2021 Stakeholder’s Letter Regarding Changes to Administrative Hearings Division (AHD) Procedures due to SARS-COVID-19 Restrictions

On February 25, 2021, the Director of the District of Columbia’s Department of Employment Services, Dr. Unique Morris-Hughes, issued a 2021 Stakeholder’s Letter announcing changes to the Administrative Hearings Division’s (AHD) policies and procedures due to the novel coronavirus epidemic.  The AHD conducts formal administrative hearings under the D.C. Workers’ Compensation Act of 1979, as amended, D.C. Code § 32-1501 et seq.

Pursuant to the director’s announcement, effective immediately, all paper – including compensation orders, scheduling orders, and/or other orders – will be issued by the AHD through the department’s electronic filing system.  Importantly, implementing policy change means that going forward, with respect to the issuance of compensation orders, scheduling orders, and/or any other order, will no longer be sent to the intended recipient via certified mail, as was previously required.

According to Director Morris-Hughes, this procedural change is designed to address staffing concerns within the department as a result of the novel coronavirus pandemic.  Suspension of the certified mail requirement, she noted in her February 25, 2021 letter, “will limit the staff’s physical presence in the office, reducing the spread of SARS-CoV-2, while enhancing the efficiency of service delivery to our stakeholders,” and went on to credit “the successful adoption and implementation of the e-filing system” with making this policy change possible.

While the “success” of the Department of Employment Services e-filing system is not in doubt, since the certified mail requirement was/is designed to ensure receipt by an appropriate individual or agent, questions regarding the effect on pro-se litigant’s due process rights still remain.  Particularly related to Scheduling and Compensation Orders, which require a response or some action on the part of a pro se litigant, often resulting in a dismissal of an action for failure by the party to do so.

To address this concern, the D.C. Department of Employment Services and the AHD are encouraging all self-represented (pro se) litigants to register with the e-filing system at the outset of any litigation.  According to the director, registration for the e-filing system will ensure that self-represented litigants “receive information more securely, timely, and faster.”

Only time will tell whether this policy change meets the director, AHD, and their respective stakeholders’ expectations.  In the meantime, the director has advised that any questions, comments, or concerns regarding this policy change should be directed to Mohammad R. Sheikh, Deputy Director for the Labor Standards Bureau mohammad.sheikh@dc.gov.

Written by associate Kara Parker.

COVID-19 Presumption Legislation Updates

COVID-19 Presumption Legislation Updates – Maryland

COVID-19 Presumption Legislation Updates – Virginia

COVID-19 Presumption Legislation Updates – D.C.

COVID-19 Presumption Legislation Updates – Delaware 

COVID-19 Presumption Legislation – District of Columbia

The DC Council has enrolled changes to various statutes relative to COVID-19 and workers’ compensation, and unemployment benefits will be discussed in further detail below.  These proposed changes were signed by Mayor Muriel Bowser on February 26, 2021. They will expire in 90 days, but more temporary legislation is likely pending. Information about the state of the proposed changes can be found here: https://lims.dccouncil.us/Legislation/B24-0058.

The major proposed changes so far relative to workers’ compensation benefits note an “injury” under public and private sector workers’ compensation law would now include the contracting of COVID-19 in the course of and within the scope of employment.  However, at this time, there is no specifically-tailored COVID-19 “presumption” legislation for workers’ compensation claims, such as those proposed or adopted in other jurisdictions.  D.C. proposals/laws relative to COVID-19 and workers’ compensation benefits appears to primarily ensure workers can file for workers’ compensation benefits if they suspect they contracted COVID-19 (defined in the statute as “the disease caused by the novel Coronavirus SARS-CoV-2 or any of its recognized mutant variations”) in the course of and within the scope of employment.  In layman’s terms: an employee could file a claim for workers’ compensation benefits after contracting COVID-19 and missing time from work, or if that person has to take unpaid time off from work because of exposure to COVID-19.  For those familiar with D.C. workers’ compensation law, this should come as no surprise; the burdens of proof and persuasion are heavily in the claimants’ favor when filing a claim.  The D.C. Department of Employment Services (DOES), which encompasses the workers’ compensation system as well as unemployment and other employment-related offices, has produced a chart of “COVID-19 Scenarios and Benefits Available” as well, found here: https://does.dc.gov/sites/default/files/dc/sites/does/publication/attachments/DOES-covid-19-scenarios-and-benefits_v13_0.pdf.   The chart states that if the employee is exposed to the virus during regular work duties and lost wages as a result of either becoming ill or having to quarantine due to exposure, he or she may be entitled to workers’ compensation benefits.  Of course, the chart is not the “law,” but it can give some insight into the current state of benefits available in different scenarios.

There are a few other portions of related laws that may eventually make their way into the workers’ compensation scheme in D.C., either through changes to the statutes or through caselaw.  For example, the Displaced Workers Right to Reinstatement and Retention Amendment Act of 2020 (passed January 13, 2021) provides that employers and contractors in retail, hospitality, or other covered industries must offer certain employees “displaced” by COVID-19 reinstatement to their previous positions or to a substantially similar position as positions become available.  This kind of scenario may spill over into the workers’ compensation field, but that is only this attorney’s conjecture at present.

Additionally, the proposed changes expand an employer’s obligation to report the injury, illness, or death to include if an employer knows of an employee who has contracted COVID-19 in the course of and within the scope of employment or whose contact with others in the course of and within the scope of employment makes the contracting of COVID-19 probable.   This reporting obligation, if it becomes law, will most likely result in many employers filing more Employer’s First Reports (DCWC Form No. 8).  Form 8 filings do not constitute filing a claim, nor is it evidence of the truth of the claimant’s allegations, but it does start the timetable for the statute of limitation on indemnity benefits of filing if an employer learns of an employee’s potential exposure.

The attorneys at Franklin and Prokopik have been preparing for additional discovery in this regard and strategizing ways to limit a claimant’s allegation of contracting COVID-19 in the workplace (as opposed to elsewhere) because of the lack of presumption legislation to date.  Due to the current uncertainty in D.C. workers’ compensation law relative to COVID-19, it is strongly recommended one discusses the matter with counsel when dealing with a potential COVID-19 claim.

UPDATE: Enacted – signed by Mayor. Effective for 90 days; more temporary legislation is supposedly pending.

COVID-19 Presumption Legislation Updates – Maryland

COVID-19 Presumption Legislation Updates – Virginia

COVID-19 Presumption Legislation Updates – Delaware 

COVID-19 Presumption Legislation – Virginia

COVID-19 was declared a public health emergency on January 31, 2020, by the Virginia Department of Health and Human Services. The Coronavirus Aid Relief and Economic Security Act, 116 P.L. 136 (March 27, 2020) (“CARES Act”). COVID-19 remains a pandemic in the United States.

COVID-19 is a disease to which the general public is exposed outside of employment.  Presently, no case law in Virginia specifically addresses pandemic viruses as occupational diseases and workers’ compensation benefits.

Depending on the circumstances, a disease, such as COVID-19, may be compensable as an occupational disease.

To prove an occupational disease, an employee must establish that he suffers an illness arising out of and in the course of employment “but not an ordinary disease of life to which the general public is exposed outside of employment.” Va. Code § 65.2-400(A). To meet this burden, the employee must prove (1) a direct causal connection between the work conditions and the occupational disease; (2) that the disease can be seen to have followed as a natural incident of the work as a result of the exposure due to the nature of the employment; (3) that the employment proximately caused the disease; (4) that it was not a disease to which he would have had substantial exposure outside of employment; (5) it was incidental to the character of the business, and not independent of the employee/employer relationship; and (6) the disease originated in the risk of employment and flowed as a direct consequence of it. Virginia Code § 65.2-400(B).

A disease that is not compensable under Virginia Code § 65.2-400, because of the possibility of substantial exposure outside of employment, may still be compensable under Virginia Code § 65.2-401. For an ordinary disease of life to be compensable as an occupational disease, the employee must establish by clear and convincing evidence that the disease arose out of the employment and did not arise from causes outside the employment and that the disease either: (1) follows as an incident of occupational disease; (2) is an infectious or contagious disease contracted by workers in the health care industries; or (3) is characteristic of the employment and was caused by conditions peculiar to such employment. Virginia Code § 65.2-401. The elements required to prove an ordinary compensable disease of life must be established by clear and convincing evidence and not a mere probability.  The employee bears the burden to prove all elements of Virginia Code § 65.2-401, including that the disease did not result from causes outside his employment.

A bill has been sent to Governor Northam. If signed into law, it would provide first responders, including firefighters, law enforcement, EMS providers, and correctional officers exposed to COVID-19 while on the job.  The COVID-19 related illness would be compensable “unless such presumption is overcome by a preponderance of competent evidence to the contrary.”

According to the bill, the employee must have a diagnosis of COVID-19 from a licensed physician, after either a presumptive positive test or a laboratory-confirmed test for COVID-19, and presented with signs and symptoms of COVID-19 that required medical treatment.

The bill states that the presumption would apply to death or disability occurring on or after March 12, 2020, and before December 31, 2021.

I believe that COVID-19 claims that healthcare employees and emergency response personnel initiate are likely to be analyzed under Va. Code §65.2-401 covers employment in a hospital, healthcare, emergency rescue, and similar employment settings.   For all other individuals, COVID-19 claims could fall within the “ordinary disease of life” classification.

COVID-19 Presumption Legislation Updates – Maryland

COVID-19 Presumption Legislation Updates – D.C.

COVID-19 Presumption Legislation Updates – Delaware 

COVID-19 Presumption Legislation – Delaware

Delaware does not currently have a statute or law in effect that creates a presumption of compensability for COVID-19 claims, nor are there any laws pending approval.

However, COVID-19 claims are covered under Delaware’s occupation disease laws.  Pursuant to 19 Del. C. § 2301(4), a compensable occupation disease includes all occupational diseases arising out of and in the course of employment only when the exposure stated in connection in addition to that has occurred during employment.

There is a two-prong test for determining compensability.  First, the work conditions must produce the ailment.  In plain English, this means the claimant must have contracted COVID-19 at work.  Second, the nature of the claimant’s employment must pose an increased risk for exposure to COVID-19.  The mere fact that the claimant was infected at work is legally insufficient. Instead, there must be some aspect of the claimant’s employment that increases the chance of infection.  

COVID-19 Presumption Legislation Updates – Maryland

COVID-19 Presumption Legislation Updates – Virginia

COVID-19 Presumption Legislation Updates – D.C.

 

 

COVID-19 Presumption Legislation – Maryland

As a result of the COVID-19 pandemic, the Maryland Legislature has introduced eight bills that seek to include COVID-19 and the related Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2) as an occupational disease, as well as expand the classes of employees who are entitled to the §9-503 presumption.  The proposed bills are currently pending second hearings in their respective original chambers.  Each of the proposed bills creates a presumption of compensability as a result of COVID-19 and SARS-CoV-2 for at least one class of employees, and all except for House Bill 1247, Senate Bill 725, and Senate Bill 860 include a provision that permits any covered employee, not within a class contemplated by the bill to file an occupational disease claim with the Workers’ Compensation Commission or a personal injury claim under state law. The bills will be discussed in more detail below.

House Bill 1199 and Senate Bill 813 are the most expansive bills on the table. These bills create a presumption of compensability for firefighters and first responders, childcare workers, education workers, healthcare workers, and essential workers.  The presumption applies so long as the following three (3) elements are met: (a) the employee is suffering from the effects of SARS-CoV-2; (b) the employee has been diagnosed with COVID-19 or tests positive for SARS-CoV-2 or related antibodies; and (c) the employee’s duties required him or her to perform labor or services at a location other than the employee’s home or residence within 14 days of the onset of symptoms.  The bills require that the employee seeking compensation must provide the employer or insurer a copy of the positive COVID-19 test or written documentation confirming the diagnosis.  The presumption created by these bills can be rebutted only if the employer or insurer demonstrates that the employment was not a contributing cause of the disease.  These bills are to be applied prospectively, meaning that the presumption would only be applied in cases that are filed after the bills’ effective dates.

Senate Bill 812 provides for the presumption of compensability for firefighters, first responders, and health care workers only and does not include essential workers or childcare workers.  This bill does not require that employees perform work outside of their home within 14 days of the onset of symptoms of COVID-19 for the presumption to apply.  The presumption created by this bill can only be rebutted if the employer or insurer demonstrates that the employment was not the direct cause of the disease.  Finally, this bill requires employees to notify employers within one year and file a claim with the Workers’ Compensation Commission within two years of either the date on which the employee tests positive for SARS-CoV-2 or the related antibodies or the date on which the employee is diagnosed with COVID-19, whichever is later.  If passed, this bill would be applied retroactively and affect any claim filed on or after January 1, 2020.

House Bill 765 provides for the presumption of compensability in firefighters and first responders. For the presumption to apply, the employee must meet three requirements. The employee must prove that: (a) he or she is suffering from the effects of SARS-CoV-2; (b) he or she has been diagnosed with COVID-19 or tested positive for SARS-CoV-2 or related antibodies, and (c) he or she maintained a position that required him or her to be in direct contact with members of the public.  The bill also creates a presumption of compensability for childcare and healthcare workers, so long as the employee (a) is suffering from the effects of COVID-19, (b) has been diagnosed with COVID-19 or tested positive for SARS-CoV-2 or related antibodies, and (c) maintained a position that required him or her to be in direct contact with patients or children of first responders or health care workers, or occupy, clean, or repair areas occupied by patients or the children of first responders or health care workers.  The presumption created by this bill may be rebutted only if the employer or insurer demonstrates that the employment was not a direct cause of the disease.  This bill does not specify whether it is to be applied retroactively or prospectively.

House Bill 1247 and Senate Bill 725 are the only bills currently circulating through the Maryland Legislature that do not expand the presumption of compensability beyond firefighters and first responders.  These bills create a presumption of compensability in firefighters and first responders, so long as the employee is (a) suffering from the effects of SARS-CoV-2; (b) maintained duties require direct contact with members of the public, and (c) has been diagnosed with COVID-19 or tests positive for SARS-CoV-2 or related antibodies.  These Bills would be applied prospectively.

Senate Bill 756 creates a presumption of compensability in firefighters and first responders, so long as the employee is suffering from the effects of SARS-CoV-2 and has been diagnosed with COVID-19 or tests positive for SARS-CoV-2 or related antibodies.  This bill also expands the presumption of compensability to health care workers, so long as the employee is suffering from the effects of SARS-CoV-2; has been diagnosed with COVID-19 or tested positive for SARS-CoV-2 or related antibodies; and was required to be in direct contact with patients or occupy, clean, or repair areas occupied by patients.  This bill would be applied retroactively and would affect any claim filed on or after March 5, 2020.

Unlike the other pending presumption legislation, Senate Bill 860 creates a presumption of compensability in public school employees.  Under this bill, a public school employee would be entitled to the presumption so long as the following requirements are met: (a) on or after March 1, 2020, the employee tested positive for or was diagnosed with COVID-19 within 14 days after a day that the employee performed labor or services at a public school or other assigned workplace outside the employee’s home at the employer’s discretion, and (b) the test was performed, or the diagnosis was made by a healthcare practitioner who is licensed, certified, or otherwise authorized under the Health Occupations Article to perform the test or make the diagnosis.  The presumption created by this bill can only be rebutted if the employer or insurer can show by substantial evidence to the contrary that the employee tested positive for or was diagnosed with COVID-19 for reasons not arising out of and in the course of employment.  This bill is to be applied retroactively and would apply to claims filed on or after March 1, 2020.

COVID-19 Presumption Legislation Updates – Virginia

COVID-19 Presumption Legislation Updates – D.C.

COVID-19 Presumption Legislation Updates – Delaware 

Ramos v. District of Columbia Department of Employment Services Addresses Theory of Causation

In Ramos v. District of Columbia Department of Employment Services, 227 A.3d 1108 (2020), the DC Court of Appeals (DCCA) stated that unless the defense addresses the claimant’s theory of causation, the presumption is not rebutted.  In Ramos, the claimant, Maria Ramos, was employed as a custodian.  She had uncontrolled hypertension and poorly controlled diabetes.  While at work, she suffered a stroke.  The defense’s Independent Medical Examination (IME) stated that the stroke’s major contributory factors were poorly controlled diabetes and uncontrolled hypertension.  The IME doctor said he would not attribute the stroke to the claimant’s employment.  However, upon further questioning from the claimant’s attorney and the Administrative Law Judge (ALJ), the IME doctor testified that physical exertion will increase a person’s blood pressure and that strokes could result from high blood pressure.  The IME doctor also stated that he could not offer an opinion about whether or not the claimant’s job responsibilities would in any way cause her to have the stroke.  The IME doctor stated that he did not have information regarding the specifics of the claimant’s employment (he did not witness what her job responsibilities involved or how heavy duty they were). Therefore, he could not provide an opinion as to that specific question.  The claimant argued in closing that physical exertion of her work aggravated her hypertension and thereby caused her stroke.

The ALJ denied the claim and, the Compensation Review Board (CRB) affirmed.  The DCCA reversed, stated that it was compensable, and remanded for an order consistent with its decision.  The DCCA stated:

  1. The aggravation rule is well-established as a valid theory.  “Whether [the claimant] was teetering on the edge of a stroke independent of her work is thus beside the point; if her work inched her over that edge, however slightly, her injury is compensable.”
  2. The employer did not refute the claimant’s theory of causation.  The defense IME said he did not have an opinion on that.  “If the employer fails to address and rebut the employee’s theory with substantial evidence, the presumption of compensability stands.”

In other cases, the DCCA has held that the claimant is not limited to one theory of causation. The ALJ is obligated to consider other possible theories of causation that the claimant did not raise, including possible causes the claimant did not notice or remember.  Nor does there need to be a discrete traumatic event.

The takeaway:  Defense experts have to address the claimant’s specific theory of causation and other possible work-related theories of causation.  Defense experts should know the claimant’s job duties.  One must be as thorough as possible when defending a workers’ compensation claim in DC.

Written by counsel Naureen Weissman.

The District of Columbia Will Not Hold In-Person Informal Conferences or Formal Hearings

The District of Columbia is not holding in-person informal conferences or Formal Hearings.  The informal conferences are being held telephonically and the Formal Hearings are being held via the web.  The CRB has recently ruled that there is NO right to a physically proximate (in person) Formal Hearing.  Calesli Durant v. Washington Gas Company et al., CRB No. 20-167, AHD No. 20-211, OWC No. 694983 (August 25, 2020).  If a party objects to a web hearing, the party must identify with particularity how a video hearing impairs the ability to impeach a witness and impedes the ALJ’s ability to assess credibility.  General assertions that credibility assessments require an in-person hearing are not sufficient.

Additionally, OWC has moved to:

400 Virginia Ave, S.W.
Washington, DC 20024

All mail should still be sent to the Minnesota Ave address.

Updates on Workers’ Compensation Operations in the District of Columbia

The District of Columbia is not holding in-person informal conferences or Formal Hearings.  The informal conferences are being telephonically and the Formal Hearings are being held via the web.  The CRB has recently ruled that there is NO right to a physically proximate (in person) Formal Hearing.  Calesli Durant v. Washington Gas Company et al., CRB No. 20-167, AHD No. 20-211, OWC No. 694983 (August 25, 2020).  If a party objects to a web hearing, the party must identify with particularity how a video hearing impairs the ability to impeach a witness and impedes the ALJ’s ability to assess credibility.  General assertions that credibility assessments require an in-person hearing are not sufficient.

Additionally, OWC has moved to:

400 Virginia Ave, S.W.

Washington, DC 20024

All mail should still be sent to the Minnesota Ave address.