Hearing loss is an occupational hazard for many employees. Although hearing can be damaged by a single exposure to very loud noise, such as an explosion or a falling cargo container, most employment-related hearing loss is caused by long-term exposure to loud noises. Diesel engines, hydraulic motors, and drilling rigs are among the many kinds of high-decibel equipment that can damage the hearing of longshoremen, harbor workers, and offshore energy industry employees.
Fortunately, the Longshore and Harbor Workers’ Compensation Act (LHWCA) allows covered employees to obtain compensation for damage to their hearing. The LHWCA covers most employees (other than members of a ship’s crew) who are employed to load, unload, repair, or build vessels, as well as most support employees who work in harbors. A related law provides compensation for hearing loss caused by offshore work that involves extracting oil and gas from the seabed.
Sound waves enter the ear and strike the eardrum, causing it to vibrate. The cochlea is a hollow, fluid-filled bone in the inner ear. The cochlea perceives vibrations in the eardrum and translates them into electrical impulses that are transmitted to the brain. The brain interprets those impulses as frequencies of sound.
The cochlea perceives vibrations through tiny hair cells. People are usually born without about 16,000 hair cells within each cochlea. Loud noises may cause the hair cells to bend, producing a temporary impairment of the ability to hear. In some cases, the hairs recover and normal hearing is restored. In other cases, hairs are permanently damaged.
A blow to the head can rupture an eardrum or damage small bones in the ear that are associated with hearing. Intense pressure caused by underwater diving can also damage the eardrum. Loud noises may damage auditory nerves. However, most work-related hearing loss accrues over a period of time.
Repeated exposure to loud noises can cause hair cells in the cochlea to die. Louder noises and longer exposures cause more damage to hair cells. When 30% to 50% of hair cells are damaged or destroyed, workers experience hearing loss.
Hair cells that have been destroyed cannot be repaired. Hearing loss caused by prolonged exposure to loud noises in a work environment is usually a permanent impairment.
Proof of Hearing Loss
Hearing loss must usually be diagnosed by an audiologist or an otolaryngologist. The doctor, or a technician working under the doctor’s supervision, will administer a hearing test that produces an audiogram. A machine plays tones at different volumes and frequencies. The patient indicates when he or she hears a tone. The resulting audiogram is a graph that illustrates the frequencies and volumes that the patient can hear.
The doctor uses the audiogram to diagnose the extent of hearing impairment. For workers’ compensation purposes, hearing loss is measured according to standards published by the American Medical Association for the evaluation of disabilities.
In some cases, a doctor diagnoses hearing loss in just one ear. In the jargon of workers’ compensation, this is known as a monaural hearing loss. More commonly, workers experience hearing loss in both ears, or a binaural hearing loss.
LHWCA Compensation for Hearing Loss
Under the LHWCA and related workers’ compensation laws, a complete monaural hearing loss results in 52 weeks of compensation at the appropriate rate. A complete binaural hearing loss — in other words, a total loss of hearing — results in 200 weeks of compensation at the appropriate rate. That rate is a percentage of the wage the employee was earning at the time the hearing loss occurred, subject to a minimum and maximum wage.
Fortunately, most employees do not suffer a complete hearing loss. When hearing loss is less than complete, compensation is awarded in proportion to the worker’s percentage of hearing loss. For example, a worker with 25% hearing loss in both ears would receive 25% of full compensation for a binaural hearing loss, or 50 weeks of compensation.
Proof of Hearing Loss
An employee making a claim for hearing loss compensation is not required to prove that his or her employer was negligent in permitting employee exposure to loud noises. However, the employee must prove that the hearing loss was caused by employment. When an employee was exposed to loud noises while working for more than one covered employer, the claim is usually made against the most recent employer.
Insurance companies contest workers’ compensation claims whenever they can. In the case of hearing loss, they may argue that other events in the employee’s life (such as regular visits to loud dance clubs) caused the hearing loss.
Fortunately, the LHWCA and related laws allow an employee to prove the claim by testifying that his or her hearing was fine before beginning the employment and that, during the employment, the employee was regularly exposed to loud noises in the workplace. Evidence that an employee suffers from impaired hearing and that work conditions could have caused the impairment raises a presumption that the hearing loss is job-related. The burden then shifts to the employer to establish that the hearing loss had a different cause.
To overcome that presumption, employers must present specific evidence that “severs the potential connection” between the hearing loss and the work environment. Unless the insurance company has evidence that the employee suffered a hearing loss before his or her maritime employment began, it is unlikely that the insurer will be in a position to defeat the claim.
Timing of Hearing Loss Claims
An employee must usually notify an employer of a job-related hearing loss within 30 days of the event that causes the hearing damage. However, most hearing loss occurs so gradually that employees may not be aware of it until they obtain a hearing test. For that reason, the LHWCA requires employees to give notice within 30 days after they become aware of an audiogram that shows a hearing loss.
A failure to give timely notice can jeopardize the opportunity to receive compensation for hearing loss claims. A lawyer who handles LHWCA cases can help employees provide an appropriate notice. An experienced LHWCA lawyer can also help employees when insurance companies contest their claim for hearing loss benefits.