A Primer to Understanding Hearing Loss Claims in Virginia
|While somewhat infrequent, hearing loss claims do arise from time to time. Thus, it is important that the Virginia adjuster understands how to analyze these claims.
It is important to note that these claims, depending upon the facts, may be considered as (1) an injury by accident; (2) a compensable consequence or (3) an ordinary disease of life. The first two require proof by the claimant by a preponderance of the evidence, and the third requires proof by claimant by clear and convincing evidence and not a mere probability.
The Macudzinski v. Omniplex World Service, Inc., VWC File No. 218-73-91 (Feb. 21, 2007) decision is an example of a case where the Full Commission considered hearing loss as an injury by accident. The McNeil v. Carter Machinery Company, Inc., JCN VA02000018428 (September 11, 2015) is an example of a case where the Full Commission considered hearing loss as an ordinary disease of life.
Va. Code Section 65.2-400(C) provides that hearing loss is not an occupational disease, and is instead to be considered as an ordinary disease of life under Va. Code Section 65.2-401. If claimant pursues recovery of hearing loss benefits as an ordinary disease of life, he or she must prove last injurious exposure during their employment under Va. Code Section 65.2-404. The Court of Appeals decision in Red Baron Coal Co. v. Hess, Record No. 1882-02-03 (October 21, 2003) illustrates this point— the Court held that claimant failed to establish last injurious exposure with his employer.
The Commission has also held that an opinion from an audiologist only is insufficient to establish the causation element of the claimant’s claim. Thompson v. Cumberland River Coal Company, JCN VA02000018343 (May 5, 2015).
It is also important to note that Va. Code Section 65.2-503 provides for 50 weeks of compensation for total hearing loss in an ear, and Rule 12 of the Rules of the Commission (Hearing Loss Table) governs how benefits are determined. Rule 12 requires that all determinations are to be made without use of a hearing aid and with a pure-tone audiometer by air conduction alone. Hearing loss in decibels is to be recorded at 500, 1,000, 2,000 and 3,000 cycles per second and the audiometer must be calibrated to the ANSI 1969 standard. The average decibel loss it to be translated into a percentage of compensable hearing loss under Va. Code Section 65.2-503 according to the table included in Rule 12 that provides for benefits at an average decibel loss of 27 or greater.
Further, it is important to note that any measured hearing loss of 26 decibels or greater before the date of accident or disease, whichever is applicable, is to be deducted from said prior hearing loss reading.
By way of example. Presume that claimant had a prior hearing loss of 50 decibels and a 80 decibels hearing loss after a compensable work accident. In such situation, the adjuster should deduct 26 from the pre-existing reading of 50 giving the employer a credit of 24. This credit of 24 is then applied to the post-accident reading of 80 resulting in claimant’s entitlement to compensation based upon 56 decibel loss. The adjuster then reviews Rule 12 and determines that this yields 48.3% of entitlement of 50 weeks or 24.15 weeks of compensation.
These cases can be a bit tricky, and I offer a few very specific tips for the Virginia adjuster.
Compensable level. Is the hearing loss presented post-accident less than 27? If yes, no benefits are available under Rule 12.
Prior testing yielding credit. Do you have hearing tests before the date of accident/disease as part of pre-employment or otherwise? If yes, do these tests reveal decibel loss of 26 or greater? The adjuster should ask about prior hearing tests during the recorded statement. If prior hearing tests were done, calculate the credit owed for said prior hearing loss.
Notice. Has the claimant provided proper notice? This requires notice within 30 days for an accident claim (Va. Code Section 65.2-600), and 60 days for a disease claim (Va. Code Section 65.2-405).
Timely filed claim. Has the claimant timely filed his or her claim? This requires that the claim be filed within 2 years of the date of accident (Va. Code Section 65.2-601) or within 2 years of the date of first diagnosis or 5 years from the date of last injurious exposure, whichever first occurs (Va. Code Section 65.2-406(A)(6)).
Actual exposure exist. Was there actual noise exposure in the workplace? Where did claimant work? Was noise protection provided to claimant?
Causation. Has claimant established causation? Are there non-work related factors that have not been ruled-out by the treating physician (concerts, guns, motorcycle, chainsaw, lawn mower, weed eater, ear infections, family history, etc.)? Has the treating physician connected hearing loss to actual workplace exposure? Has the physician noted actual last injurious exposure with your insured? The adjuster should also consider sending a medical questionnaire to the treating physician.
Proper equipment. Was the audiometer used calibrated using the ANSI 1969 standard ?
As reflected above, these claims involve a careful analysis before agreeing to accept them as compensable.
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