For Hearing Loss Claims, the Last Injurious Exposure Rule does not Apply to Insurers

03/12/2024

For Hearing Loss Claims,
the Last Injurious Exposure Rule does not Apply to Insurers

Pennsylvania
Manufacturers Association v. William Cree, et. al.

Claimant William Cree
filed a claim with the Workers’ Compensation Commission for binaural hearing
loss with a date of disablement of August 31, 2018, noting Prince George’s
County as the Employer. 

Prince George’s County
impleaded Cree’s prior employers, The Town of Riverdale and the City of Laurel,
which they claimed also contributed to Claimant’s hearing loss.  The City of Laurel impleaded Pennsylvania
Manufacturers Association (“PMA”), which insured the City during the first half
of Claimant’s employment with the City of Laurel.

The Workers’ Compensation
Commission held a hearing to determine liability for Claimant’s hearing
loss.  At that hearing, PMA argued that
it would not be considered the last insurer chronologically of the City, and
therefore should be relieved of any liability pursuant to the last injurious
exposure rule.  Subsequently, the
Commission issued an Order finding that the last injurious exposure rule did
not apply to Claimant’s claim, and therefore also finding that all three of
Claimant’s employers were liable for Claimant’s hearing loss, as was the
insurer, PMA.

PMA initiated an
on-the-record appeal in the Circuit Court for Prince George’s County.  The Circuit Court for Prince George’s County
affirmed the Commission’s decision.  PMA
then initiated an appeal to the Appellate Court of Maryland.  The Appellate Court of Maryland also affirmed
the Commission’s decision.

In coming to their
decision, The Appellate Court of Maryland looked at the history of the law, and
the legislative intent for such laws. 
They noted that while the last injurious exposure rule applies to
employers and insurers for occupational diseases, it clearly does not apply to
employers in hearing loss cases.  The
question, then, was whether the last injurious exposure rule applies to
insurers of employers in hearing loss cases.

PMA put forth two
arguments at The Appellate Court of Maryland: (1) the statutes that deal with
hearing loss (Labor and Employment §9-651 and §9-652) do not use the term
“insurer” and therefore these provisions do not apply to insurers – only
employers; and (2) the statute that deals with the last injurious exposure rule
(Labor and Employment §9-502) has two separate paragraphs -  one applying to employer, and one applying to
insurers - therefore the last injurious exposure rule applies independently to
insurers, even when it does not apply to the employers that they insure. 

The Appellate Court of
Maryland was not convinced by either of these arguments.  Instead, noting that there was no indication
in the available legislative history that the General Assembly believed that a
claim for occupational hearing loss would be subject to the last injurious
exposure rule.  Further, the last
injurious exposure rule directly contradicts the method for determining
liability for a claimant’s hearing loss, and accordingly to Yox v. Tru-Rol
Co., 380 Md. 326 (2004), a general provision governing occupational
diseases is not controlling when it is inconsistent with the approach that the
General Assembly has specified for claims of occupational hearing loss.

- Ashley Bond, Associate