Thursday, November 14, 2013

Hearing Loss Claim - A Well Documented, Successful Defense

The requirements for establishing a claim for benefits for work-related hearing loss are set forth at Section 306(c)(8) of the Pennsylvania Workers' Compensation Act.

The burden of proof is on the claimant to establish that he/she suffers from a permanent hearing loss of 10 percent or greater that is medically established to be work-related and caused by the long-term exposure to hazardous occupational noise.

Significantly, whether the employee has been, in fact, exposed to hazardous noise is not part of the claimant's burden of proof. Rather, it is an affirmative defense that may be asserted by the employer; that the claimant's exposure to noise was not hazardous or was not long-term.

The availability of information regarding work exposures and medical evaluation results, may impact the success of each party's position.

McCool v. WCAB (Sunoco, Inc.), No. 783 C.D. 2013, an opinion of the Commonwealth Court of Pennsylvania, authored by Judge Covey on October 18, 2013 reviewed claimant's entitlement to hearing loss benefits.

Factual and Procedural Background
Employee worked with Sunoco for five years from 2003 to his resignation on March 20, 2008.
He worked "office jobs" from 1998 to 2003.
Earlier, Employee was a Philadelphia firefighter for nearly 15 years, from November 1983 to October 1998.

Sunoco History
Employee alleged exposure to noise in his employment with Sunoco in his duties as an operator apprentice and refinery operator. The equipment and the refinery process was said to cause "extreme"  noise.
He would occasionally report to a block house, where there was a restroom, kitchen and equipment with fans and motors. He alleged this was also noisy.

Sunoco furnished and required the use of personal hearing protection. Approximately 12 different types were available. He did not have to wear earplugs in the blockhouse, so he only wore them when he was outside. He communicated with coworkers via walkie-talkies. In his last year of employment he wore headphones that permitted communication without a walkie-talkie.

Firefighter History
During his employment as a firefighter he was exposed to noise.
[This is the extent of the description of "noise" exposure in his employment as a firefighter.].
In April 2001 Employee had an audiogram, as a number of firefighters were examined and were pursuing hearing loss claims. He saw the union examining expert, Dr. Gold.
At this time his audiogram did not show an impairment, sufficient to file a claim.
[As later developed, this scenario becomes significant when the issue of notice and Employee's knowledge arises].

Employee underwent a Pre-Employment audiogram with Sunoco in December 2002 and then on an annual basis, thereafter. The 2002 audiogram showed a pre-existing hearing loss that continued to accelerate across all frequencies at each yearly re-test.
[Note: rapid loss and loss across all frequencies is not typical for occupational hearing loss].

In 2006/07 at Employee's request, his family physician made a referral to a hearing specialist, Dr. Stuart Scherr. At this time employee started wearing a hearing aid.

Employee Medical Expert
August 2, 2010,  Dr. Aaron L. Shapiro issued a report that attributed employee's occupational hearing loss to his employment as a firefighter.
October 4, 2010,  Dr. Aaron L. Shapiro issued a report that attributed employee's occupational hearing loss to his employment with Sunoco.
[there is reference to a July 7, 2010 exam and audiogram, so it appears there was not a 2nd exam].

Employer Medical Evidence
Dr. Lee D. Rowe examined employee on February 17, 2011, conducted an audiogram and reviewed the prior medical records and audiograms.
The history included a past skull fracture as a youth, which could cause auditory nerve damage and later progressive hearing loss.

Audiogram results showed a significant difference in loss of high frequencies, left was far worse than the right
Dr. Rowe calculated a binaural hearing loss of 52.5% in accord with the AMA guidelines.
This was a significant acceleration during the short time period from the Dr. Shapiro audiogram in July 2010.
[Remember Employee stopped working in March 2008; ie., no more noise exposure!].

Dr. Rowe reviewed the prior medical records and audiograms and noted:

  •  No AMA impairment at the time of the December 2002 Sunoco pre-employment exam;
  • audiograms after the firefighter and before Sunoco showed the beginning of an acceleration process that was not due to noise exposure; ie, when employee worked the "office jobs"; 
  • this progression of loss accelerated during Sunoco employment;
  • the start of hearing loss in 2005/06 was consistent with age-related hearing loss at age 53-54 years;
  • employee utilized hearing protection when employer with Sunoco;
  • asymmetrical hearing loss was consistent with the childhood skull fracture;
  • asymmetrical hearing loss is inconsistent with occupational noise induced hearing loss;
  • employee had other risk factors associated with hearing loss progression;
  • the dramatic increase in AMA impairment from 2010 to 2011 was inconsistent with occupational noise induced hearing loss.

WCJ Decision
In the Claim Petition litigation, the WCJ rejected the conflicting Shapiro reports as not credible.

The WCJ rejected employee's testimony as to when he knew his hearing loss was work related, as it was inconsistent with his prior knowledge from the 2001 testing and attorney meetings regarding a possible claim as a Philadelphia firefighter.

Employer medical expert, Lee D. Rowe, M.D. was found credible.

Commonwealth Court Appeal
Employee argument that the WCJ placed the burden of proving an exposure to hazardous noise upon him, was rejected.
Employee argument that the WCJ decision was not supported by competent evidence was rejected.
Employee's argument that the WCJ decision was not reasoned, was rejected.

Practice Pointers:
1. This litigation result demonstrates the value of obtaining detailed and complete medical records and employment history. This information allowed the medical expert to provide a well documented analysis of the non-occupational basis for employee's hearing loss.

2. In some cases, it is not possible to gather complete records. Information regarding past work environments, may be limited. This may compromise the ability of the medical expert to draw conclusions regarding the occupational or non-work causes of hearing loss. 

In this instance, I recommend focusing your discovery efforts on the medical records, as a means to document your causation arguments.

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