eNotes: Workers’ Compensation – October 2023 – Maryland

SIGNIFICANT CASE SUMMARIES

Maryland Case Summary

Pennsylvania Manufacturers Association v. Cree
Appellate Court of Maryland
2023 Md. App.

Decided: September 6, 2023

Because the last injurious exposure rule in Md. Code Ann., Lab. & Empl. § 9-502(b) does not apply to occupational hearing loss cases as set out in § 9-505(b), when allocating liability among multiple employers, the Appellate Court found that the workers’ compensation insurers for those multiple employers could not invoke the last injurious exposure rule to deny its appropriate share of liability in an occupational hearing loss claim.

Background

William Cree worked as a police officer for almost 25 years, and during that time worked for 3 separate municipalities. By August 31, 2028 the claimant’s hearing loss reached compensable levels. A claim was filed against Cree’s last Employer (the County), who then implead the other 2 employers, the Town and the City. The City was insured for the first half of the hazardous period by PMA, and was held to be uninsured for the last 3 years of the hazardous exposure. PMA argued that it was not liable to pay any loss incurred by the City as the UEF would be held as the insurer for the claimant’s last 3 years of injurious exposure while employed by the City. The County was found 63% liable; the Town was found to have 12% liability and the City was found 25% liable and the WCC found that PMA was liable for the City’s loss as it had insured the employer during the period of the hazardous exposure. PMA noted an appeal.

Holding

In Maryland, when a claimant is exposed to harmful noise while working for more than one employer, liability may be apportioned amongst those employers, either equally or based on the amount of the worker’s exposure at each employer. § 9-502(b), and 9-505(b) that applies to occupational hearing loss claims, are silent as to how liability is to be assigned among insurers, if any employer was insured by more than one insurer during the hazardous exposure. In this case, the Appellate Court of Maryland established that the same method of allocation of liability should be applied to insurers as to the employers they insure in occupational hearing loss cases.

Takeaway

The application of the last injurious exposure rule as set out in § 9-502(b) does not apply when assessing liability of insurers or employers in an occupational hearing loss case.

Questions about this case can be directed to Ruth Jacobs at (443) 641-0573 or rjacobs@tthlaw.com.