Work Comp Hearing Loss Claims Difficult to Disprove

A hearing loss claim can be one of the most difficult claims to prove or disprove. High levels of noise at the job location can cause an employee to lose part or all of his or her hearing. Every state, except Alaska, Montana and Nevada, have specific provisions in their workers compensation statutes to address hearing loss claims. (Montana and Nevada treat hearing loss as an occupational disease).

The difficult aspect of hearing loss claims is determining whether the hearing loss is due to aging process [as everyone’s hearing deteriorates as they get older] or is the hearing loss due to exposure to excessive levels of noise in the workplace. The severity of noise-induced hearing loss varies depending on the level of the noise and duration of the noise. Also, each person has a different level of susceptibility to noise-induced hearing loss.

While one tremendous explosive sound can cause hearing loss (referred to as a traumatic incident), most hearing loss claims are cumulative – the result of repeated exposure to high noise levels everyday on the job. The hearing loss can be monaural (one ear) or binaural (both ears).

To determine the amount of hearing loss an employee has incurred, an Audiologist or a Otolaryngologist tests the employee’s impairment using the American Medical Association’s Guides to the Evaluation of Permanent Impairment (in most states, some states use other measuring systems). The employee’s level of hearing at 500 Hertz (Hz), [a Hertz is a measurement of sound waves per second] 1,000, 2,000, 3000, 4000 and 6,000 Hz can be tested, depending on the requirements of the state where the hearing claim is filed.

The results of the hearing test are displayed on a form called an audiogram. The audiogram is used to calculate the degree of hearing loss. Sounds simple? [no pun intended]. It isn’t.

The issues with audiograms include:

1. The audiometer being properly calibrated.
2. The cooperation of the employee (is the employee giving the test his best effort to hear).
3. The employee’s medical status at the time of the test – does the employee have a cold, other physical ailments, earwax?
4. Knowing when the employee was last exposed to a high noise level prior to the date of the test.
5. The qualifications of the person administering the test – was the test conducted by an otolaryngologist or was the test conducted by an unsupervised technician?
6. The audiometric examination being given in a room meeting requirements for the elimination of background noise.

It is not enough for the employee to prove s/he has a hearing loss. A determination of the type of hearing loss is needed. There are three types of hearing loss – conductive loss, perceptive loss and mixed type loss.

A conductive loss of hearing is caused by a defect in the middle ear or the external ear due to disease or injury. It is not caused by noise in the work place.

A perceptive loss of hearing occurs in the middle ear and may be caused by exposure to noise in the work place, or it may be caused by advancing age or infectious disease. Therefore, even if the employee has a perceptive loss of hearing, it may not be caused by the employee’s job. It is up the adjuster and the medical providers to investigate for other possible causes for the perceptive loss.

In a mixed type of hearing loss, the employee has both conductive loss and perceptive loss of hearing. Again, it may or may not be related to his employment.

As an employer you may be thinking “my company should not have any hearing losses, we provide all employees exposed to noise with state of the art hearing protection.” That’s great, but the states vary tremendously in whether or not you owe the claim if the employee fails to use the protective device. Only in Georgia, Iowa, Nebraska, New Jersey, North Carolina, Oklahoma and South Dakota can the failure to use the hearing protective device be used as a reason to deny the workers compensation claim.

Some states will use the failure to use the provided hearing protective device as a reason to impose a percentage reduction in the amount of the indemnity payment for the hearing loss. The states that impose a percentage reduction are Kentucky (15%), Missouri (25% to 50%), New Mexico (10%), Utah (15%) and Wisconsin (15% capped at $15,000). In all the other states, the failure to use the protective device has no impact on the claim or the workers comp statutes are silent in regards to the employee not using the provided hearing protection.

As a hearing loss can be cumulative over many years, the question then becomes which employer is liable for the workers compensation claim?   Is it the current employer, or does the responsibility for the hearing loss belong to a previous employer where the employee was exposed to louder and more intense noise? Some states do not address this issue. Some states have statutes protecting the employer from hearing loss that occurred at a prior employer. Some states try to apportion the hearing loss claim amongst the employee’s current and prior employers. Other states allow the employer to implead prior employers into the Workers comp Board case. In Hawaii the current employer is stuck with the hearing loss. In Minnesota and Rhode Island, the employer with the “last significant exposure” gets to pay the entire claim.

To protect your company from paying for a hearing loss that occurred prior to the employee coming to work for your company, a pre-employment audiogram should be conducted on every new hire. This provides your company with a baseline for any future hearing loss claim. Even if the employee does incur a hearing loss while working for your company, by having the baseline audiogram, the amount of compensation paid to the employee for the hearing loss will only be for what occurred at your company, unless you are in Hawaii, Minnesota or Rhode Island.

If your employees work where they are exposed to continuous noise, make the wearing of protective hearing gear mandatory. You must make sure employees know the importance of wearing protective hearing gear. Include enforcement of protective safety gear, whether hearing protection or other types of safety gear as a part of the performance evaluation of the supervisors and managers. By using audiograms to establish hearing ability prior to employment and enforcing the use of protective hearing gear during employment, you can eliminate or significantly reduce the number of hearing loss claims against your company.

Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact:  RShafer@ReduceYourWorkersComp.com.

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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.

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