Dan Pierson of Pond Lehocky Giordano LLP

In Pennsylvania, a worker may file a claim for workers' compensation benefits after the worker sustains an injury in the course and scope of her employment. While the "injury" may be generally thought of in terms of a physical injury, workers' compensation benefits extend beyond such a generality. Specifically, Section 306(c)(8), 77 P.S. Section 513(8) of the Pennsylvania Workers' Compensation Act spells out the burden for an injured worker seeking recognition of her work-related hearing loss due to exposure from hazardous, long-term noise conditions.

Establishing Hearing Loss

The first hurdle to obtain workers' compensation benefits for hazardous, long-term work-related hearing loss requires a showing of actual hearing loss in the injured worker. Specifically, Section 306(c)(8), 77 P.S. Section 513(8)(iii) notes that if the binaural hearing impairment as calculated under the AMA Impairment Guides (notably, the 4^th edition) is less than 10%, no benefits are payable. Alternatively, if the binaural impairment is equal to or greater than 75%, there is a presumption of total hearing impairment.

Calculating binaural hearing impairment requires some nifty math work. First, the injured worker must undergo an audiogram to determine the hearing loss percentage in each ear. Despite not being a trained audiologist, the injured worker's counsel can actually calculate the binaural hearing impairment by review of the audiogram findings.

In order to calculate the binaural hearing loss percentage based upon the actual audiogram results, you need to first multiply five by the percentage of hearing loss in the better ear, then add the percentage of hearing loss in the worse ear, and then divide that entire number by six. That yields the binaural hearing loss percentage. For example, if an audiogram finds 50% hearing loss in the right ear, 65% hearing loss in the left ear, the binaural hearing loss percent is calculated as 52.5%.

The math games do not stop there. In order to calculate the benefit rate that the binaural hearing loss percentage yields, you then multiply 260 weeks by the binaural hearing loss percentage. In the above example, a 52.5% hearing loss would yield 136.5 weeks of benefits. If the calculated binaural hearing loss is equal to or greater than 75%, there is a presumption of total hearing and an automatic yield of 260 weeks of benefits.

In practice, most otolaryngologists (ear, nose and throat physicians or ENTs) will conduct an audiogram in their office to establish the binaural hearing loss percent. In some instances, the binaural hearing loss calculation between an injured worker's ENT and an insurance company's ENT may be identical, removing the hearing loss percentage from issue. Otherwise, the workers' compensation judge (WCJ) as the ultimate fact-finder may accept the opinion of one physician regarding the percentage of impairment.

Were You Exposed to Long-Term, Hazardous Occupational Noise?

Once a binaural hearing loss percent greater than 10% has been established, an injured worker bears the burden of proving that the hearing loss was caused by her hazardous, long-term exposure during their employment. The WCJ as the fact-finder makes the determination whether the noise level at work constitutes hazardous occupational noise.

In a somewhat unusual burden flip, the injured worker need not prove specific noise level exposure in any precise, quantifiable way beyond her testimony regarding the noise level at work. Instead, the employer must challenge whether such exposure occurred as an affirmative defense, as Section 306(c)(8)(x) of the act states, "Whether the employee has been exposed to hazardous occupational noise or has long-term exposure to such noise shall be affirmative defenses to a claim for occupational hearing loss and not a part of the claimant's burden of proof in a claim." That affirmative defense requires an employer to establish that the injured worker was not exposed to sound levels equal to or in excess of 90 dBA during the claimed period of exposure, or, exposure during that period did no exceed permitted daily exposure for three days a week for 40 weeks in any one year. The three-day requirement does not necessitate a specific eight-hour exposure, while the 40 weeks of exposure must occur within any 12-month period within three years prior to date of injury.

Certain industries appear pre-disposed to long-term hazardous hearing loss claims, from heavy duty mining and construction work to manufacturing positions with thundering equipment constantly running. Yet hearing loss does not discriminate by employment field, as the Bureau of Labor Statistics has cited long-term hazardous hearing loss cases ranging from airport baggage handlers to even orchestra conductors as evidence as the wide assortment of fields with workers at risk of hearing loss. See Luis Felipe Martinez, "Can you hear me now? Occupational hearing loss, 2004–2010," Bureau of Labor Statistics, Monthly Labor Review, July 2012.

From the injured worker's perspective, it is crucial to present testimonial evidence of the type of work performed, the noise level of the work environment, and the time frame during which the injured worker was exposed to the high levels of noise. An employer may present an affirmative defense suggesting noise levels did not reach the required 90 decibel mark or suggesting that exposure did not occur for three days a week for 40 weeks in a year. An injured work need not present expert testimony to rebut the defense but may simply testify in opposition, as the question of whether the injured worker was exposed to hazardous occupational noise remains a question of fact for the WCJ.

Additionally, an employer will often argue that any binaural hearing loss is not as a result of long-term, hazardous noise exposure, but instead is a result of the aging process, familial predisposition, or even outside activities like hunting, home car repair, or membership in a hair metal band. If an employer successfully quantifies the percentage of a nonoccupational cause as a factor in a worker's hearing loss, the WCJ can reduce the total liability percentage of the employer accordingly. If the worker is involved in activities that could cause hearing loss, it is crucial that the injured worker's medical expert explain why the hearing loss at issue- based upon the onset of hearing loss, symmetrical nature, and unique symptoms- is a direct result of the occupational exposure.

Is The Claim Timely Filed?

Finally, an injured worker's claim for benefits as a result of long-term hazardous noise exposure must be filed three years from the date of the last exposure to occupational noise. Section 306(c)(8)(viii), 77 P.S. Section 513(8)(viii). Careful review of this section notes the omission of "long-term" in the three-year window. In practice, this allows an injured worker to file such a claim even if the long-term hazardous noise exposure occurred more than three years from the filing of the claim, so long as she was exposed to occupational noise following that period.

An injured worker must still provide notice to their employer of a long-term hazardous noise injury within the 120-day requirement of the act. However, the notice requirement follows the principles of notice in non-hearing loss claims, as the time for giving notice of an injury does not begin to run until the health-care provider informs the employee of the existence of a compensable hearing loss, see Crompton v. Workers' Compensation Appeal Board (King), 954 A.2d 751 (Pa.Cmwlth.2008).

In practice, these timing requirements highlight the need to timely file hearing loss claims once an injured worker learns that their hearing loss is work related while also falling within three years of last hazardous noise exposure. Practitioners often see these cases when a long-time employee retires from a position and seeks out treatment for hearing loss. It is important to determine the time period when the worker was exposed to long-term hazardous noise. Even though an assembly line worker was exposed to long-term hazardous noise 10 years before moving to a supervisory position, and then retiring, does not preclude that worker from seeking benefits as long as they can show that the supervisory position exposed her to hazardous noise within the three-year window. Again, this requires the WCJ to act as the ultimate fact-finder.

Putting It All Together

Long-term hearing loss claims operate within their own unique rules in the Pennsylvania workers' compensation system. Beyond the value of a potential award of 260 weeks of benefits for the most serious cases, hearing loss claims also carry significant medical value as the responsible employer must pay for an injured worker's hearing assistance devices and medical treatment.

Often, these cases represent an all-or-nothing gambit, as a WCJ may be asked to decide whether an injured worker's hearing loss is solely as a result of their long-term hazardous occupational noise exposure. For the injured worker however, these cases represent more than reduced earning potential or necessary medical treatment, but instead an unavoidable impact on the worker's quality of life.

Daniel E. Pierson, an associate with Pond Lehocky Giordano LLP, concentrates his workers' compensation practice on serving injured workers of Pennsylvania. Contact him at [email protected].