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September 2019 Legal Report

By: Milan Rada, Esq., with John Hewson, Esq.

As the summer winds down into fall the best gentle reminder of the changing of the seasons seems to be the return of another season of the Nassau County PBA Newsletter. And with the new edition of the newsletter comes another legal Report for the month of September. This month we choose to focus on a topic that we have not spent much time reporting on over the years, but one that we have dealt with on a regular basis, which is work-related hearing loss claims. Avid readers of the Legal Report know that many of our articles have discussed the issues of Schedule Loss of Use settlements and awards and repetitive stress or “wear and tear” injuries to the back, knees, shoulders, or any other body parts. Hearing loss claims encompass both of those injuries in many of the same ways, but they are not claims that often pop up in our minds immediately.

Work-related hearing loss is generally the same as any other repetitive stress injury from which a worker might suffer. Much as the overuse of the back through constant lifting on the job can lead to an occupational disease of the back, chronic exposure to loud noises will also lead to an occupational disease and hearing loss over time as well. As with the back claim, hearing loss that is caused or contributed to by the constant loud noises on the job will lead to an entirely viable and compensable Workers’ Compensation claim. If a hearing loss claim can be established, in the same way as any other Workers’ Compensation claim, the County is now liable for both the medical treatment of the injury as well as potential monetary awards for any loss of income derived from the injuries.  When it comes to hearing loss, often that monetary award is in the form of a settlement in the same way that someone might receive a 30% schedule loss of use to the knee or shoulder.  Of course, there are nuances to hearing loss claims that do make them different from your typical compensation case.

For starters, when it comes to hearing loss claims, the injured member must not be in the environment causing or contributing to the hearing loss for at least 90 days before the claim becomes viable.  Thus, if a member of highway patrol riding his or her motorcycle is suffering from the beginning stages of hearing loss or tinnitus but is still working in the same unit with the same noise exposure, the member cannot bring the hearing loss claim until they are removed from the environment.  From the moment that the member is removed from the environment for 90 days, the member is then subject to the same two-year statute of limitations for bringing the claim as with any other Workers’ Compensation case.  Therefore, if a member has been removed from the noisy environment causing his or her hearing loss and a doctor gives that member an opinion stating that the hearing loss was caused by work, the statute of limitations begins to run.

In addition to that difference, the awards for benefits are also slightly different in a hearing loss claim.  As opposed to physical injuries where the treating doctor and the independent medical examiner for Nassau County will each have an opportunity to give an opinion on the percentage or degree of loss, in a hearing loss claim, the amount of binaural hearing loss is governed by a formula.  That formula takes the findings noted on audiometric tests measuring the amount of low frequency and high- frequency hearing loss, which are plugged in to determine the amount of hearing loss both for each ear individually and then a number that corresponds to the overall hearing loss experienced by the member.  It is based on the percentage of hearing loss on which the awards are generated.  Thus, there typically is no dispute as to the percentage of hearing loss because it is all determined by a formula.

At this point, the claims become pretty similar to physical injury cases.  If a member has work-related hearing loss in only one ear, then the percentage of hearing loss is calculated in a number of weeks the same as a knee or foot injury.  For hearing loss in one ear, the number of weeks maximum to be payable is 60 weeks.  Thus, if a member has complete hearing loss in the left ear, that member would receive an award of 60 weeks of compensable benefits multiplied by the maximum rate of compensation for that member at the date of the disability.  Currently, the maximum rate of compensation is $904.74 for any dates of disability after July 1, 2019.  Therefore, total hearing loss in one ear can be worth over $50,000.

Similarly, the damage that causes hearing loss in both ears will be eligible to receive an award as well.  If the injury causes binaural hearing loss then the chart in Workers’ Compensation actually can allow for an award up to as much as 150 weeks of benefits.  Therefore, if a member has complete and total hearing loss due to work-related noise exposure, he or she may be eligible for not only medical treatment but also a monetary award of well over $100,000.

Those numbers all sound good in principle, but there is always a catch.  The catch as it relates to hearing loss in Workers’ Compensation is that, generally, most hearing loss caused by chronic noise exposure at work results in high-frequency hearing loss.  The way that the formula works with Workers’ Compensation tends to favor and award low-frequency hearing loss to a far greater degree than that of high-frequency hearing loss.  Therefore, many members will end up with some degree of hearing loss at the end of his or her career but the type and degree of that hearing loss may not be eligible for a large amount of monetary awards.  The audiometric testing that is performed will tell us which type of hearing loss you suffer.

That being said, there is one major reason why our firm has always felt these claims are viable and worthwhile despite the fact that much of the hearing loss might not equate to any monetary awards.  That reason is because of medical treatment.  Much like any other Workers’ Compensation injury, if a member has an established work-related hearing loss claim then the County becomes liable for all the medical treatment associated with that injury.  That includes medical devices such as hearing aids!  Any person with hearing aids can tell you that they are incredibly expensive, often costing well over $8,500.00 per set of hearing aids. And, according to the TV commercial, “they will charge whatever they can get.” Also, hearing aids often are not covered to any large extent under private health insurance.  Thus, by having a work-related hearing loss claim of the either high or low frequency the County is liable for the cost of those hearing aids as they are needed.  Therefore, what the member might not receive in actual cash, they can receive a similar amount by not having to pay out of pocket for the high cost of hearing aids.

As with any injury or claim or questions, please do not hesitate to contact our office at 516-941-4403 or by e-mail at mrada@fbrlaw.com.  We have been working on these types of claims for over 40 years, and if a member has the type of noise exposure that can result in a compensable claim, we are always happy to assist and get you what you are entitled to under the law.  Every consultation is free so there is no reason to not give us a call if you have a question about this or any other disability-related matter.

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