Wednesday, March 13, 2013

Hearing Loss Claims - a Successful Defense Strategy

A worker may file for disability benefits for permanent loss of hearing caused by long-term exposure to hazardous occupational noise. Benefits are payable according to a formula. See Section 306(c)(8).

Whether the worker has been exposed to hazardous occupational noise
whether the employee has a long-term exposure to occupational noise,
is an affirmative defense of the Employer, these are not elements of the worker's burden of proof.

Hazardous occupational noise is defined as: noise levels exceeding permissible noise exposures as defined in Table G-16 of OSHA Occupational Noise Standards, 29 CFR 1910.95...
exposure exceeding ninety decibels (90 dB) for an 8 hour day. WCA Section 105.4.

Long-term exposure means exposure to noise exceeding the permissible daily exposure for at least 3 days each week for 40 weeks of one year. WCA Section 105.6.

Aquilino v. WCAB (Philadelphia Gas Works), No. 1599 C.D. 2012, an unpublished memorandum decision of the Commonwealth Court of Pennsylvania, authored by Judge Simpson on March 11, 2013 reviewed these issues.

Factual & Procedural History

Employee worked for Employer from 1978 until December of 2007 when he suffered a compensable work related back injury. He did not return to work.
In April of 2009 he filed a claim for bilateral hearing loss.

Occupational exposure to noise included:
- two years in the streets department using pneumatic tools and heavy equipment
- twenty one years in field service (streets dept.) in loud commercial buildings
- three-four years in the meter shop.

The meter shop was the subject of testimony and audiometric testing.
Employee worked at an area adjacent to the "prover meter" which was "very loud".
He worked with pneumatic tools all day.

Medical Evidence

Employee medical expert Aaron Shapiro M.D. performed audiological testing in January 2009 which showed 29.4% impairment. He related this hearing loss to the work history of noise exposure.

Employer medical expert Lee Rowe M.D. performed audiological testing. He obtained a history of co-morbid factors related to hearing loss, including smoking.
He opined employee hearing loss was consistent with age related presbycusis, not occupational noise exposure for 2 reasons:
1st there was an accelerated deterioration of audiometric results in the 8 months since Shapiro's tests
2nd once he was removed from work noise there should be no further work related deterioration.

Employer Testimony

Shop Superintendent Ottinger testified regarding work processes and timing of noise creating activity.
He described work area and distance from machines. Hearing protection was always available.

Safety Manager Bright testified regarding field service jackhammer use and hearing protection.

Industrial Hygienist Allhouse testified regarding sound level testing of co-workers in employee work areas. Time weighted average exposure figures were 66.6 dBA over an 8.5 hour sampling period.
This was below the OSHA 90 dBA threshold hazardous noise level.

WCJ decision
Found Employer witnesses were credible, Employee testimony was rejected.
Employee did not meet his burden to establish a compensible hearing loss.
Employer met its burden to establish its affirmative defense.

Commonwealth Court affirmed claim denial.

1. Employee argue - employer medical evidence deducted a portion of hearing impairment for presbycusis, in conflict with Pa. Supreme Court at LTV Steel Co. v. WCAB (Morenza (2000).

No, Here Employer medical expert did not allocate a portion of loss to presbycusis and a portion to work exposure, rather he stated Employee exhibits evidence of an accelerated hearing loss consistent with presbycusis and not secondary to occupational noise exposure.

2. Employer affirmative defense evidence, dosimeter readings were not adequate under Joy Mining Machinery Co. v. WCAB (Zerres) Cmwlth. 2010) as:
a. tests were performed 2 years after employee ceased work,
b. worker was not performing employee's mechanic job,
c. readings were only one day,
d. sound-proofing material was not in place when employee worked.

No, here, unlike Joy, WCJ found employer's evidence reflected Claimant's individual exposure."

3. Employee argue WCJ erred in denying claim and not determining whether employee had a [threshold] 10% bilateral hearting loss and whether he was exposed to [any] occupational noise.

No, Employee has the burden to establish a 10% or more, permanent hearing loss, caused by long term exposure to hazardous occupational noise.
Here, Employee did not establish a work related loss by credible evidence. He is not entitled to a "presumption" of causation, just because his hearing loss exceeds 10%.

Practice Pointers:

1. Determine which employer witnesses can establish the work conditions that existed at the time of
    the Claimant's employment.

2. Determine if any prior audiometric testing is available to document the work environment during
    claimant's employment years.

3. Determine if the work environment can be "recreated" for current testing.

4. Medical Expert Witness must be familiar with the Employee burden of proof and the Employer
    proof of an affirmative defense.

This case reflects a thorough job of identifying and presenting witnesses with a detailed knowledge of the work environment during claimant's work years. This allowed the WCJ to find as a fact that the evidence reflected claimant's work exposure.

See also a prior unreported "companion" case at: Stallings v. WCAB (Philadelphia Gas Works)
 Pa. Cmwlth. No. 296 C.D. 2012 filed September 7, 2012 by Judge Pellegrini.

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