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Workers’ Compensation (Continued from page 44)

to an incapacitation. For example, the occupational deafness

provision in the Maryland Workers’ Com- pensation statute provides overwhelming support against creating a standard that triggers “disablement” when an employee attends a medical appointment. Occu- pational deafness is governed by §9-505. In an occupational deafness case, the statute of limitations begins to run when the hearing loss becomes compensable under Md. Labor & Emp. Code Ann. §9-505, or when the employee first has “actual knowledge” that the disability, i.e. the compensable hearing loss, was caused by the employment. Thus, there is an entirely different definition for “disable- ment” in hearing loss cases as opposed to other occupational disease claims. See Yox v. Tru-Rol Co., 380 Md. 326, 337 (2004). In Yox, the Court of Appeals concluded that in place of wage loss or impairment — the objective standard for disable- ment applicable to other occupational diseases — the specific objective criteria for measuring hearing loss set forth in Md. Labor & Emp. Code Ann. §9-505 were substituted.1

Id. The mere fact that

Yox attended a doctor’s appointment did not trigger “disablement;” rather “disable- ment” was triggered when a hearing test revealed that Yox suffered a hearing loss that rose to the level of compensability as set forth in the Maryland Workers’ Compensation Act. The Court of Special Appeals in Yox had concluded that if “dis- ability” were necessary as set forth in Md. Labor & Emp. Code Ann. §9-711(a), there would effectively be no statute of limitations in hearing loss cases, since rarely do hearing losses result in an inabil- ity to perform work. Tru-Rol Co. v. Yox, 149 Md. App. 707, 717 (2003). Clearly, the appellate courts did not envision that attending a doctor’s appointment would constitute “disablement,” because other- wise the courts would not be concerned that “disablement” (as defined in Md.

Labor & Emp. Code Ann. §9-711(a)) would never occur in occupational deaf- ness claims, since it is not uncommon for employees to take time off from work to visit a doctor. In a contested occupational disease case

the employer/insurer, often incorrectly, relies on Yox to argue that the claimant had “actual knowledge” of occupational disease before the two years. In Yox, the claimant did not file a claim form with the Workers’ Compensation Commis- sion until July of 2000; however, he had advised his physician in 1987 that he thought the ringing in his ears was related to his work. Yox, 380 Md. at 338. The Court held that the claimant had actual awareness and that his impairment was related to his employment. Id. The Yox case is distinguishable from

most occupational disease cases with regard to the “actual knowledge” require- ment in three significant ways. First, the claimant in Yox testified that he believed his occupational disease was due to his employment. In most occupational dis- ease cases, a claim is not filed until after a diagnosis is made by a physician and the physician specifically relates the condition to the employment. Second, unlike most non-deafness

cases, in Yox, the audiologist who exam- ined the claimant in 1987 testified that the 1987 hearing loss was compensable under the workers’ compensation statute. Yox, 149 Md. App. at 710. Thus, in Yox, not only did the claimant express his belief that his work may have caused his hearing impairment but, much more importantly, the doctor expressly affirmed that belief. Id. In most occupational disease cases, there is no evidence that any doctor, more than two years before the claim is filed, is of the explicit opinion that the claimant’s condition was the result of an occupational disease. Third, and perhaps most important,

the occupational deafness provision of the Maryland Workers’ Compensation statute, and the basis for the Court’s hold- ing in Yox, is that the “actual knowledge”

requirement, for the purpose of statute of limitations, is linked to “disability” (e.g. the simple fact of hearing loss regardless of the effect on the claimant’s job.) In contrast, under §9-711(a) (2), the focus of the “actual knowledge” analysis in all other occupational disease cases is not linked to “disability,” but to the date of “disablement.” The claimant, therefore, in the usual occupational disease case,2


have “actual knowledge” of the causation as well as the “disablement.” In summary, when proceeding with

an occupational disease claim, be ready for a statute of limitations challenge. Be prepared by knowing what your client said to his/her physician, what the physician said to your client, and what, if any, affect the condition had on your client’s ability to do his/her job.


Judge Battaglia, joined by Chief Judge Bell and Judge Eldridge, dissented and stated that when the General Assembly enacted Section 9-505, allowing a hearing loss claim to be compensable even without “disablement,” it did not change the statute of limitations for such claims in any way. Yox v. Tru-Rol Co. , 380 Md. 326, 345 (2004) (Battaglia, J., dissenting).



As stated earlier, merely having a certain decibel hearing loss under a specific for- mula constitutes a disability under Maryland Workers’ Compensation law. Contrasted to this is the quite common situation where an employee has a condition such as carpal tunnel syndrome, tarsal tunnel syndrome, or black lung disease, for years, before it leads to an incapacitation or change in job capacity.

Trial Reporter Summer 2006

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