Ed: This series examines workers’ compensation questions common to multiple jurisdictions and offers a multi-state perspective to those issues. In this article we take an in-depth examination of the compensability of hearing loss injuries under the South Carolina Workers’ Compensation Act. Following the article, we offer perspective from other states as well.
It is worth addressing at the outset that many claims for hearing loss differ significantly from typical work-related accidents. In a slip and fall accident, there is a clearly defined accident, which typically causes a readily identifiable injury, on an easily discerned date of accident. While there are certainly instances in which an individual suffers hearing loss due to one singular accident, many claims for hearing loss are the gradual result of repetitive trauma suffered over years of employment. Thus, determining important information regarding the date of accident and the date on which a Claimant became aware of his disability can be difficult, although it is critically important to the case.
A landmark case regarding the compensability of work-related hearing loss claims in South Carolina is Schurlknight v. City of North Charleston, 352 S.C. 175. The Claimant in Schurlknight was a fireman of 24 years, who rode in the passenger seat of the fire truck alongside the siren, air horn, and radio. Ultimately, the Claimant was diagnosed with noise-induced hearing loss in both ears, which he alleged was due to the prolonged exposure to loud noises while serving as a fireman. The issue in Schurlknight became whether Claimant filed his workers’ compensation claim for noise-induced bilateral hearing loss inside the two-year statute of limitation. Of critical importance was the question of when the statute of limitations begins to run in a repetitive trauma case. In its Schurlknight decision, the South Carolina Supreme Court held that the “last day of exposure is the date from which the statute of limitations begins to run in a repetitive trauma case.”
The Schurlknight decision also clarified that a hearing loss injury is a “repetitive trauma injury” which is defined by S.C. Code Ann. 42-1-172(A) as being an injury which is gradual in onset and caused by the cumulative effects of repetitive traumatic events.” For a repetitive trauma injury to be compensable under the South Carolina Workers’ Compensation Act, a Commissioner must make a specific finding of fact by a preponderance of the evidence of a causal connection established by medical evidence between the repetitive activities that occurred while the employee was engaged in the regular duties of his employment and the injury. Such medical evidence must be stated to a reasonable degree of medical certainty and offered by a licensed and qualified medical physician.
S.C. Code Ann. 42-15-20 establishes that in the case of repetitive trauma, notice must be given by the employee within ninety days of the date the employee discovered or could have discovered by exercise of reasonable diligence, that his condition is compensable.
Assuming the notice requirement is met and the claim is filed within the applicable statute of limitations, the analysis for hearing loss necessarily turns to the medical arguments in the case. A natural starting point is a careful analysis of claimant’s medical records, as well as an evaluation of the workplace in which claimant alleges the hearing loss took place. OSHA requires employers to implement a hearing conservation program when noise exposure is at or above 85 decibels averaged over 8 working hours. If the environment in which the claimant was working averages a decibel level below 85, this strengthens the defense significantly. Similarly, if the average decibel level in the work environment exceeds 85 decibels, but employees are required to wear hearing protection, this provides important evidence for the defense. Additionally, it is important to determine if claimant was regularly exposed to loud noises outside of work, as this evidence may tend to make it less likely that the injury is work-related. Possible examples would be if Claimant were an avid hunter, and was regularly exposed to the sounds of gunfire without ear protection, or if claimant regularly listened to loud music through a pair of headphones.
In Dority v. MeadWestvaco, the Court of Appeals of South Carolina noted, “The evidence presented as to whether Dority suffered a compensable injury is disputed. For example, one medical doctor testified Dority’s hearing loss is attributable to noise exposure and another medical doctor concluded that Dority ‘does not have any occupationally induced hearing loss.’” This acknowledgement by the court that there was competing medical evidence regarding claimant’s alleged hearing loss underscores the importance of uncovering relevant medical evidence and forcing the commissioner to determine how much weight to give it. Hearing loss often occurs naturally as people age, and the claimant must prove that the hearing loss arose out of and in the course of his employment. Necessarily, a causal connection between claimant’s workplace and his hearing loss must be shown.
South Carolina Code Ann. 42-9-30(19) establishes that for the complete loss of hearing in one ear a Claimant is entitled to 80 weeks, and for the complete loss of hearing in both ears a Claimant is entitled to 165 weeks. Importantly, the South Carolina Workers’ Compensation Commission is charged with promulgating the regulation which provides for the determination of proportional benefits for total or partial loss of hearing based on accepted national medical standards. It is worth noting that no other type of injury addressed in S.C. Code Ann. 42-9-30 requires that the Commission promulgate a regulation based on “accepted national medical standards” to be used in determining impairment. To meet this requirement, the Commission enacted Regulation 67-1102, which bases the method for determining hearing impairment on the American Academy of Otolaryngology “Guide for Evaluation of Hearing Handicap,” which is based upon the America Medical Association’s “Guides to the Evaluation of Permanent Impairment,” copyright 1977. Further, Regulation 67-1102 details how to calculate permanency as stated below:
The calculation of a hearing handicap is derived from the pure tone audiogram, obtained with an audiometer calibrated to ANSI S3.6-1969 standards and as follows.(1) The average of the hearing threshold levels at 500 Hz, 1000Hz, 2000Hz, and 3000Hz are calculated for each ear.(2) The percent impairment for each ear is calculated by multiplying by 1.5% the amount that the above average hearing threshold level exceeds 25dB (low fence) up to a maximum of 100%, which is reached at 92dB (high fence).(3) The hearing handicap, a binaural assessment, is calculated by multiplying the smaller percentage (better ear) by five, adding this figure to the larger percentage (poorer ear), and dividing the total by six.
Due to the complexity of the hearing handicap calculation, a detailed investigation should be undertaken into the legitimacy of a claimant’s audiogram. It is important to determine the type of hearing loss that is alleged, as conductive hearing loss and sensorineural hearing loss can be caused by different factors. Evaluating claimant’s prior audiograms can help establish what kind of hearing loss claimant is experiencing. Audiograms are designed to establish the severity and type of hearing loss and can help identify the potential causes. Importantly, due to the subjective nature of hearing tests, it is important that the claimant be evaluated for inconsistencies in their pure tone test. Speech reception testing, auditory reflex testing, and word recognition testing can be used to identify inconsistencies in performance and determine whether the claimant has attempted to fake hearing loss. A claimant’s medical history must also be examined for evidence of illness, disease, or trauma that can be linked to hearing loss. Given that hearing loss commonly occurs naturally, a thorough investigation of potential causes is prudent before admitting a claimant’s hearing loss is work-related.
In closing, for work related hearing loss claims, the question of compensability should be evaluated on a case-by-case basis, with special attention given to the facts surrounding the claim and the relevant medical evidence. Legal questions regarding the statute of limitations and the employer notice requirement may also arise and should be considered at the outset of every case.
If you have questions about this issue in South Carolina, please contact Regan Ankney Cobb at email@example.com or at 843.277.0944.
Multistate Survey of Hearing Loss Claims
Alabama: Alabama specifically holds that hearing loss due to noise exposure is an occupational disease and may be a compensable injury if certain criteria are met. The statutory definition of an occupational disease is a disease which is due to hazards in excess of those ordinarily incident to employment in general, is peculiar to the claimants occupation and is a direct result of exposure over a period of time. The definition contains several different conditions that have to be met for hearing loss to be compensable. First, the claimant must prove that the hearing loss resulted from prolonged exposure to normal working conditions. Second the hearing loss must be caused by hazards (1) in excess of those ordinarily incident to employment in general run of occupations and (2) different in character from those found in general occupations.
The date of injury for a hearing loss claim is the date the employee is last exposed to the noise that caused the hearing loss. Also notice for an occupational injury is not required to be given by the claimant. In Alabama the loss of hearing is a scheduled injury. For the complete loss of hearing in both ears the claimant is entitled to 163 weeks of indemnity benefits under the schedule. For complete loss of hearing in one ear 53 weeks of indemnity benefits. If you have questions about this issue in Alabama, please contact Kyle Kinney or Stephen Christie at firstname.lastname@example.org or email@example.com.
California: In California hearing loss claims are evaluated through AOE/COE. Thus, the applicant has the burden of proving that the hearing loss arose out of and was within the course and scope of the employment. Pursuant to the AMA Guides, Chapter 11.1, permanent hearing impairment is defined as “permanent reduced hearing sensitivity, outside the range of normal for the individual or based on population normal values”. Whether permanent hearing impairment exists is a medical determination established in part by audiometric measurements. However, even if the applicant establishes permanent hearing impairment, the applicant must prove that the impairment meets the AOE/COE threshold.
Discovery and investigation are extremely important when dealing with hearing loss claims as these claims tend to be fact specific, and should be assessed on a case by case basis. Early investigation regarding the applicant’s medical history, outside activities and events, and employment history will all be import factors in assessing whether alleged permanent hearing impairment actually arose out of and was within the course and scope of the applicant’s employment. This information will also be essential for establishing apportionment to non-industrial causation should AOE/COE be established. Furthermore, determining whether an employer provided and/or required safety equipment will be necessary to assess potential defenses to the establishment of AOE/COE. If you have any questions about this issue in California, please contact Emily C. Edwards at firstname.lastname@example.org.
Florida: Florida analyzes Hearing Loss claims under the Exposure Theory. The elements for recovery under the Exposure Theory are set forth in, Festa v. Teleflex, Inc., 382 So.2d 122 (Fla. 1st DCA 1980). According to Festa, in order for a claimant satisfy their burden and prove that the hearing loss is compensable, then they must prove each of the following elements: (1) a prolonged exposure; (2) a causal relationship between the exposure and the injury; and (3) a hazard greater than that to which the general public is exposed. It is only once they prove each of these elements that they can then prove the hearing loss is compensable. If you have any questions about this issue in Florida, please contact Chris McCue at email@example.com.
Georgia: Compensability for hearing loss is addressed per Georgia statute. O.C.G.A. §34-9-264 is a lengthy and very detailed statute but we have included some pertinent portions of the statute for guidance. “Harmful noise” means sound in employment capable of producing occupational loss of hearing; sound of a intensity of less than 90 decibels, A scale, shall be deemed incapable of producing occupational loss of hearing. “Occupational loss of hearing” means a permanent sensorineural loss of hearing in both ears caused by prolonged exposure to harmful noise in employment. The code section further defines hearing loss at certain frequencies and tells how the hearing loss should be calculated. The compensation rate for hearing loss is calculated the same as the compensation rate for TTD and payable for 150 weeks for total hearing loss or a percentage of 150 weeks for partial hearing loss; however, TTD and TPD are not paid for hearing loss. Except in instances of preexisting hearing loss due to disease, trauma, or congenital deafness in one ear, compensation shall not be payable unless the prolonged exposure to harmful noise has caused loss of hearing in both ears. If the employee fails to regularly utilize employer provided protection devices, then the employee is not entitled to compensation. The employee is not entitled to compensation unless they are exposed to the harmful noise for more than 90 days. Additionally, no claim for compensation shall be filed until six months have elapsed since the exposure to the harmful noise. If you have any questions about this issue in Georgia, please contact Hanna J. Williams at firstname.lastname@example.org.
Illinois: In Illinois, the Workers’ Compensation Act provides specific parameters that must be met in order to prove a compensable hearing loss claim. First, the claimant must prove exposure above certain decibel levels for a minimum period of time, as defined by the Act. For example, if a claimant was allegedly exposed to industrial noise at 90 dBA, the Act states that they must be exposed for a minimum of 8 hours per day to prove a compensable work injury. These minimums do not apply in cases involving an acute trauma or explosion, which may cause acute hearing loss. In addition, impairment and compensation are also governed by the Act, based on the average dBA lost for the frequencies of 1,000, 2,000 and 3,000 cycles per second. If the average dBA lost exceeds 30 dBA, then 1.82% loss of use of the ear is allowed for every dBA lost. For example, if an audiometric evaluation of the claimant shows that the average dBA loss at the 3 frequencies is 35 dBA, which is 5 dBA over the minimum, claimant’s impairment is 9.1% loss of use of the ear. Please contact Tim Furman at email@example.com for any Illinois questions on hearing loss.
Indiana: Indiana recognizes loss of hearing as a compensable injury under the Worker’s Compensation Act so long as a plaintiff can successfully prove that the loss is related to his/her employment. A partial permanent impairment (PPI) rating is required from a physician to determine the degree of PPI. The percentage of hearing loss assigned by a physician is then calculated as follows to determine the statutory PPI award owed to the plaintiff:
-For loss in one ear: each degree of impairment = 15% of a whole person degree of impairment.
-For loss in both ears: each degree of impairment = 40% of a whole person degree of impairment.
If the loss of hearing is the result of repetitive exposure, a plaintiff has two years from the date a permanent injury became discernable to file their Application for Adjustment of Claim. Please contact Kirsten Kaiser Kus at firstname.lastname@example.org for any Indiana questions on hearing loss.
Kentucky: Compensability of occupational hearing loss — Authority for administrative regulations — Rebuttable presumption as to employer liability.
(1) In all claims for occupational hearing loss caused by either a single incident of trauma or by repetitive exposure to hazardous noise over an extended period of employment, the extent of binaural hearing impairment shall be determined under the “Guides to the Evaluation of Permanent Impairment.”
(2) Income benefits payable for occupational hearing loss shall be as provided in KRS 342.730, except income benefits shall not be payable where the binaural hearing impairment converted to impairment of the whole person results in impairment of less than eight percent (8%). No impairment percentage for tinnitus shall be considered in determining impairment to the whole person.
(3) The commissioner shall provide by administrative regulation for prompt referral of hearing loss claims for evaluation, for all medical reimbursement, and for prompt authorization of hearing enhancement devices.
(4) When audiograms and other testing reveal a pattern of hearing loss compatible with that caused by hazardous noise exposure and the employee demonstrates repetitive exposure to hazardous noise in the workplace, there shall be a rebuttable presumption that the hearing impairment is an injury covered by this chapter, and the employer with whom the employee was last injuriously exposed to hazardous noise for a minimum duration of one (1) year of employment shall be exclusively liable for benefits.
If you have questions about this issue in Kentucky, please contact Walter E. Harding at email@example.com or (502) 589-5980.
Mississippi: Compensation for loss of hearing of one (1) ear equals forty (40) weeks. Compensation for loss of hearing of both ears equals one hundred fifty (150) weeks. Miss. Code Ann. Sec. 71-3-17(c)(17). As with all cases, a connection to the workplace must be proved. Mississippi’s standard for a compensable claim is if the work “exacerbated, accelerated, or combined with a pre-existing condition” then a compensable injury exists. In many hearing loss claims the statute of limitations is an issue. Mississippi has a two-year statute of limitations in Workers’ Compensation claims. The time for the statute of limitations runs from when the injured worker “had notice of the probably compensable character of his/her injury”. This period of time usually occurs when a physician informs the injured worker of the likely work connection. Workplace causes include some of the following: noise, lightning strikes, blows to the head, falls, electrocution, ruptured eardrums, gunshot wounds, hot matter in the ear canal. Non-workplace causes of hearing loss can include: military service, loud radios or television, non-work blows to the head, birth defects, and old age. As with all claims in Mississippi, the hearing loss and connection to work must be supported by medical findings. If you have any questions about this issue in Mississippi, please contact Dan Baker at firstname.lastname@example.org.
New York: NY recognizes two types of hearing loss claims: traumatic and occupational hearing loss. Claimant must produce medical evidence of work-related hearing loss via otolaryngologist (ENT) audiometric evaluation. Occupational disease (OD) in NY can be tricky to defend because there is often a significant delay in reporting, and yet the deadlines for a carrier/employer to submit its declaration of defenses are still very short. In NY, carriers can raise the defense of statute of limitations (WCL section 28), if the claim was not filed within two years after the disablement and after the claimant knew or should have known that the disability is or was due to the nature of the employment. This requires honing in on the date claimant learned of the hearing loss through a medical diagnosis, as “mere suspicion” is not legally sufficient to establish claimant knew or should have known of the work-related nature of hearing loss. If ou have any questions about this issue in New York, please contact Marguerite Jonak at email@example.com.
North Carolina: In addition to allowing recovery for hearing loss caused by a single workplace accident, hearing loss that is caused by harmful noise over a period of 90 working days, or parts thereof, is an enumerated compensable occupational disease pursuant to N.C. Gen. Stat. § 97–53(28). In order to recover, the employee must establish (1) loss of hearing in both ears which was (2) caused by harmful noise in the work environment. The employer liable is the employer who last exposed the employee to the harmful noise. Accordingly, the employee cannot file a claim for occupational hearing loss until 6 months after the last injurious exposure. Interestingly, it is not the employee’s burden to show the harmful noise was 90 decibels or more, but rather it is the employer’s affirmative defense to show the noise level was of an intensity less than 90 decibels. If the employee establishes the prima facie case and the employer is unable to show the noise was below 90 decibels, without or without the employer-provided protective devices, the employee could be entitled to recover up to 150 weeks of compensation for the total occupational loss or the proportionate number of weeks that the partial loss bears to the 150 weeks. If you have questions about this issue in North Carolina, please contact Jennifer Morris Jones at firstname.lastname@example.org or (919) 863-8846; or Jordan Bernstein at email@example.com or (704) 940-0118.
Oklahoma: In Oklahoma the SOL is triggered by the Claimant’s last injurious exposure, not the date of last employment. Exposure v. Employment become an issue if a Claimant has several different positions within the same company over his/her career. The actual length of the statute varies and is determined by date of awareness. The most common time frames are 6 months, 1 year and 2 years. The prevalent issue that we see with defending hearing loss cases in Oklahoma is inconsistent audiograms. Oftentimes a Claimant will have 5-10-15 audiograms over his or her career but invariably the audiogram obtained for litigation purposes always seems to be significantly higher than the others. The Oklahoma legislature addressed this issue in 2014 when it began requiring confirmation testing within 30 days. Another issue that often arises is one ear being significantly worse than the other or hearing loss that worsens suddenly vs. gradually. These loss patterns point to causes other than cumulative exposure in industrial settings. In defending cases in Oklahoma, we focus on three main areas: 1. Length and amount of exposure at work 2. Other health issue that could be causative 3. Exposure outside of work. In general, the Claimant must show that his or her employment was the major cause of the injury and must do so by a preponderance of the evidence. If you have any questions about this issue in Oklahoma, please contact Travis R. Colt at firstname.lastname@example.org.
Tennessee: In order to prevail on a hearing loss claim, the employee must show by a preponderance of the evidence that the employment contributed more than 50% in causing the injury. Coleman v. Armstrong Hardwood Flooring Co., No. W2017-02498-SC-R3-WC, 2019 WL 1578706, at *5 (Tenn. Workers Comp. Panel Apr. 12, 2019). In Tennessee, hearing loss is treated as any other workplace injury. Tenn. Code Ann. § 50-6-102(14) provides that “‘injury’ and ‘personal injury’ mean an injury by accident . . . or cumulative trauma conditions including hearing loss[.]” As a result, the statute of limitations for hearing loss begins to run “at that time when the employee, by a reasonable exercise of diligence and care, would have discovered that a compensable injury had been sustained.” Taylor v. G.UB.MK Constructors, No. E2019-00461-SC-R3-WC, 2020 WL 2919471, at *6 (Tenn. Workers Comp. Panel June 2, 2020). Like all workers’ compensation cases, claims for hearing loss are highly fact-driven, in that the trial court may consider the job skills, work environment, and even the protection available to the employee when determining whether the employment contributed more than 50% in causing the hearing loss. See Douglas v. Goodyear Tire & Rubber Co., No. W200800533SCWCMWC, 2009 WL 2567777, at *6 (Tenn. Workers Comp. Panel Aug. 19, 2009). Similar to our sister jurisdictions, Tennessee has consistently held Employee with a hearing injury is more likely to prevail on their claim if they can show that their injury has a connection to their employment by a preponderance of the evidence. If you have questions about this issue in Tennessee, please contact John Barringer at email@example.com.
Texas: Texas law is generally consistent with the reasoning in Schurlknight. Hearing loss claims are treated as occupational diseases. To recover for an occupational disease which occurred as the result of repetitious, physically traumatic activities that occur over time and arise out of and in the course and scope of employment, one must not only prove that repetitious, physically traumatic activities occurred on the job, but also must prove that a causal link existed between these activities on the job and one’s incapacity; that is, the disease must be inherent in that type of employment as compared with employment generally. Appeal No. 030287, 2003 WL 1867708, at *2 (TWCC A.P. Decision, Mar. 21, 2003), citing Davis v. Employer’s Insurance of Wausau, 694 S.W.2d 105 (Tex. App.-Houston [14th Dist.] 1985, writ ref’d n.r.e.). The Division of Workers’ Compensation’s Appeals Panel has stated that, at a minimum, proof of a repetitive trauma injury should consist of some presentation of the duration, frequency, and nature of activities alleged to be traumatic. Appeal No. 960929, (TWCC A.P. Decision, June 28, 1996). In Appeal No. 030287 the hearing officer was persuaded that the claimant provided sufficient evidence of a nexus between his employment and hearing loss due to the need for protective hearing equipment in the claimant’s employment and the medical opinions in evidence. For questions regarding hearing loss claims in Texas, please contact Robert D. Stokes at RDS@fol.com.
This article is a publication of the Workers’ Compensation Defense Institute (WCDI). WCDI is an alliance of leading U.S. law firms that dedicates considerable experience to the representation of employers and carriers in the area of workers’ compensation. The members of WCDI serve the workers’ compensation community with a focus on providing quality and cost-effective legal services designed to facilitate the prompt and efficient resolution of claims.
WCDI is available throughout the year for complimentary, multi-state continuing education programs and presents a multi-state workers’ compensation seminar annually at the Workers’ Compensation Institute (WCI) Conference held in Orlando, Florida. The 2021 conference is scheduled for December 12-15th. For more information or to register, visit wci360.com.
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