I will point out what I think are inequities in the way that hearing loss claims are handled under the Longshore Act.
But first, I understand that hearing loss is clearly a legitimately compensable injury when it results from injurious workplace noise exposure. My point is that the adjudication of these claims under the Longshore Act is not always consistent with the overall concept and rationale of the workers’ compensation remedy.
Remember, workers’ compensation laws represent a compromise, whereby workers receive the advantages of no fault, prompt wage replacement and medical benefits for workplace injuries without having to face the common law defenses of assumption of risk, contributory negligence, and negligence of a fellow employee in a lawsuit against their employer; employers receive freedom from lawsuits and increased predictability as to their liability to employees for workplace injuries.
In many, by no means uncommon, circumstances the adjudication of hearing loss claims does not satisfy the “predictability” and “liability for workplace injuries” elements of the workers’ compensation tradeoff.
First, some General Principles:
Hearing loss under the Longshore Act is NOT an “occupational disease which does not immediately result in death or disability”. It is compensated under Section 8(c)(13) as a scheduled award and not under Section 8(c)(23) as an occupational disease. It is a traumatic injury in that the harm occurs immediately upon exposure.
Hearing loss IS treated as an occupational disease for the application of the last responsible employer rule.
The Section 20(a) presumption of causation applies to hearing loss claims, and the claimant’s prima facie case can be established solely based on his testimony that he was exposed to loud noise in the workplace.
The Aggravation Rule applies to hearing loss claims. The claimant is entitled to compensation for his entire hearing loss when workplace injurious noise exposure aggravates or combines with a prior hearing impairment, whether due to a birth defect, injury, disease, aging, or any other reason.
The date of injury in a hearing loss case is the date of last exposure, which is also when the Average Weekly Wage is established.
BUT, the Sections 12 and 13 notice and claim filing timeliness requirements do not begin to run until the claimant has an audiogram which shows a hearing loss, receives the results and the accompanying report, AND is aware of the relationship between his work and his hearing loss.
Under Section 8(c)(13), the schedule provides for binaural hearing loss to be compensated on the basis of 100% loss equals 200 weeks of compensation.
Here is what can happen:
Case 1: A maritime worker retires from all employment in 1985 at age 60. In 2005 at age 80 he has his first audiogram performed which shows a 30% binaural hearing loss. He claims that he was regularly exposed to loud noise at his workplace. He files a hearing loss claim under the Longshore Act within one year of the audiogram. His claim is likely to be considered as timely filed. So much for predictability for the employer, who is faced with a claim for a workplace injury filed 21 years after employment and exposure ended.
Case 2: A worker with a pre-employment conductive binaural 50% hearing loss unrelated to workplace exposure retires from maritime employment. Three years later he has an audiogram which shows a 60% binaural hearing loss. He files a claim against the employer for the full 60% hearing loss. Under the Aggravation Rule, the employer may be liable for the full 60%. The employer’s liability may include the pre-employment, non-work related 50% hearing loss combined with the 10% work related hearing loss. The employer pays for the legitimate work related hearing loss and also pays for the indisputably non-work related hearing loss.
Case 3: A claimant works for a succession of employers, and he is exposed to loud noise at each workplace. He doesn’t file a hearing loss claim against any of the employers. After he retires he files a claim against the last employer. Under the last employer rule, this employer faces liability for the worker’s entire hearing loss. The earlier employers escape liability.
The point is that under current interpretations of the Longshore Act’s hearing loss provisions, maritime employers are paying for hearing loss claims that are filed many years after employment and exposure have ended, and are also paying for non-maritime work related portions of hearing loss due to non-industrial causes, disease, work for other employers, aging, etc.
Amendments to the Act which reverse current case law and apply reasonable timeliness requirements for the filing of claims and for subtracting out the non-work related components of hearing loss will restore the intended balance in workers’ compensation. Workers will be compensated for their work related hearing loss fairly and in a manner that restores to employers the equitable elements of the workers’ compensation tradeoff.
ABOUT THE AUTHOR
John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of AEU's Longshore Insider.