Workers' Compensation Newsletter
Workers' Compensation Laws and Hearing Loss Claims
Studies reveal that hearing loss results most often from exposure to hazardous noise and, less frequently, from exposure to agents such as solvents and metals. Noise-related hearing loss is 100% preventable, but, once acquired, is permanent and irreversible. In certain industries, workers may unknowingly be subjecting themselves to health and safety issues that place themselves at risk to acquire hearing loss. Specific industries that are particularly prone to causing worker hearing loss include the following:
- Agriculture
- Mining
- Construction
- Manufacturing
- Transportation
- Military
OSHA Regulations Related to Hearing Loss
The Federal Occupational Safety and Health Administration sets forth a sound-level table to regulate workplace noise exposure. When employees are subjected to sound levels that exceed those in the OSHA table, the employer must use all feasible methods to decrease the exposure to acceptable levels. Employers can provide their employees with protective devices such as disposable ear plugs, heavy-duty reusable earplugs, earmuffs or protective ear bands. Employers not in compliance with OSHA requirements potentially risk exposure to employee claims for compensation.
Workers’ Compensation for Hearing Loss Claims
Most states treat noise-induced hearing loss as an occupational disease. Compensation is usually based upon the degree of loss, to which compensation formulas and schedules are then applied. Although Workers’ Compensation laws vary by state, most laws include:
- Payment for medical treatment
- Reimbursement for travel costs for medical evaluation and care
- A lump sum payment for the hearing loss, based upon the worker’s wages
The time period in which to file a claim for occupational hearing loss varies depending on the jurisdiction. In some states, and under certain federal laws, a hearing loss claim must be filed against the last employer that contributed to the hearing problem.
Federal and State Hearing Loss Statutes
The Federal Employees Compensation Act provides compensation to federal civilian employees, including postal workers, for work-related injuries and occupational diseases, such as hearing loss. The Federal Longshore and Harbor Workers’ Compensation Act also compensates for hearing loss.
Most states compensate for work related hearing loss; however, state statutes may differ substantially in numerous respects. For instance, the statute of limitations period for filing a claim may range from 30 days up to five years. In addition, the amount of compensation available varies significantly. In states that award compensation for hearing loss, caps on recoveries exist, including some as low as $10,000 while others exceed $100,000. Such recoveries also vary depending on whether one or both ears have suffered from hearing loss.
Presbycusis
State laws also differ with respect to certain types of hearing loss. Many states do not provide compensation for presbycusis, i.e., hearing loss due to old age. Other states, such as South Dakota and Missouri, offset the amount of any hearing loss attributable to presbycusis. In other words, when an employee seeks compensation for occupational hearing loss, in determining the actual loss, the state may deduct from this figure any hearing loss that is presbycusis related. States that take such action generally employ a formula to determine to what extent presbycusis is considered. In South Dakota, the relevant statute states:
“Before determining the percentage of hearing impairment, in order to allow for the average hearing loss from nonoccupational causes found in the population at any given age, there shall be deducted from the total average decibel loss, one-half decibel for each year of the employee’s age over forty-five years at the time of last exposure to occupational noise. Other appropriate deductions established by competent specialist opinion which exceed the foregoing allowance for presbycusis shall also be deducted.”
The relevant Missouri statute includes similar language, but indicates that the formula is calculated from when the employee turned 40, as opposed to 45.
Tinnitus
Tinnitus, a hearing loss condition characterized by a buzzing or ringing in the ears, is also treated differently by jurisdiction. For instance, South Dakota does not compensate for tinnitus. In contrast, a 1994 Missouri case indicated that tinnitus is compensable, finding that tinnitus is compensable as an injury to the “body as a whole” and is not treated as a specific loss of hearing.
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