June 03, 2012 BY Taylor Poncz
Say What? An Overview Of The Fundamentals Of A Hearing Loss Injury
Many employers across the state of Georgia will never deal with hearing loss injuries. By the very nature of their businesses, like restaurants, health care systems and trucking companies, there simply is no threat of a noise-producing environment. However, for certain employers, specifically manufacturing plants or other traditionally “noisy” industries, hearing loss injuries can be very costly and the impact a slippery slope as a result of the snowball effect on other employees working in the same environment that otherwise never lose time from work. There are two types of hearing loss cases. The first, traumatic hearing loss, encompasses hearing loss injuries sustained from a specific injury. For example, a laborer who falls several feet from a ladder may sustain closed-head injuries and a temporal fracture impacting his auditory perception, resulting in a compensable traumatic hearing loss injury. The compensability of this type of injury is consistent with the basic “arising out of” and the “in the course of” analysis applied to most other occupational accidents, and whether there is medical evidence of hearing loss. Employees can recover indemnity and medical benefits for a traumatic hearing loss injury, and the statutory provision reflecting compensation for permanent hearing loss is O.C.G.A. § 34-9-263(c)(12), which currently provides for payment for permanent partial disability resulting from the hearing loss in either one ear (75 weeks) or both ears (150 weeks). However, the statute was not always as liberal with regard to an employee’s entitlement to PPD benefits for a traumatic hearing loss. For the first nearly 40 years that the Workers’ Compensation Act was in effect, an employee had to have suffered a total hearing loss in both ears to be entitled to PPD benefits. Gradually, the statute became more encompassing, providing for PPD benefits if an employee had total loss in just one ear, and then ultimately to where it currently stands, with entitlement to PPD benefits for partial or total hear loss for one or both ears.
The other type of hearing loss claim under the Georgia Workers’ Compensation Act is an occupational loss of hearing, a gradual type of hearing loss which results from occupational exposure to harmful noise over time. This type of hearing loss claim was not provided for in the Georgia Workers’ Compensation Act until 1974, but has since been deemed an injury as contemplated by O.C.G.A. § 34-9-1(4), as opposed to an occupational disease. The policy concerns for acknowledging a gradual hearing loss from repeated exposure to noise at work as a compensable injury was industrial employers’ liability for an enormous amount of employees seeking PPD benefits when those employees had otherwise never lost any time from work as a result of the hearing loss. Ultimately, Georgia courts have chosen to allow compensation for a gradual hearing loss injury, but given the cumulative nature of this type of hearing loss injury, a determination of compensability is far more complex than a traumatic hearing loss claim, and for that reason, the requirements for proving a compensable claim have been statutorily defined in detail by O.C.G.A. § 34-9-264.
The statute provides that in order for an employee to recover benefits for an occupational hearing loss injury, the employee must prove 8 requirements. The first requirement is that the hearing loss must be permanent. O.C.G.A. § 34-9-264(a)(2). To be permanent, the hearing loss must be more than auditory fatigue and cannot be temporary. Additionally, the loss of hearing must be sensorineural, meaning the root cause lies in the vestibulococlear nerve, inner ear, or central processing centers of the brain, as opposed to mere tinnitus or psychological hearing loss, which have origins within the individual as a person as a perceived sound or ringing in the ears. O.C.G.A. § 34-9-264(a)(2). The third requirement, and one that differentiates itself significantly from traumatic hearing loss injuries, is that the hearing loss must be present in both ears, and the basis for this requirement is that if an employee truly experiences hearing loss as a result of cumulative noise exposure, then presumably it should impact both ears. O.C.G.A. § 34-9-264(a)(2). The only exception to this requirement is if the employee has pre-existing loss of hearing in one ear due to congenital deafness, disease or other trauma. O.C.G.A. § 34-9-264(b)(4).
In order to be compensable, the employee must also show that the loss of hearing is present at the frequencies of 500, 1000 and/or 2000 cycles per second, and that the average loss is greater than 15 decibels (26 decibels if ANSI or ISO) in those three frequencies. O.C.G.A. § 34-9-264(b)(1) and (2). Therefore, the employee has the burden to produce medical evidence of audiological testing in these ranges. The sixth and seventh requirement is that the loss of hearing must be caused by “prolonged” exposure to “harmful noise.” O.C.G.A. § 34-9-264(a)(2). In Georgia, “prolonged” hearing loss is defined as exposure to employment circumstances involving the threshold harmful noise level for at least ninety working days. The threshold “harmful noise” level is also defined in Georgia as being sound of an intensity of 90 decibels, A scale or greater. O.C.G.A. § 34-9-264(a)(1). Finally, the last requirement an employee has to prove to show a compensable occupational hearing loss injury is that the claim for hearing loss cannot be filed until at least six months have elapsed since the employee’s exposure to harmful noise with the last employer. O.C.G.A. § 34-9-264(c). This requirement is contemplated by the statute in order to ensure that the hearing loss is in fact permanent, since temporary hearing loss may take several months to resolve, however it encourages, if not requires, an employee to stop working for 6 months in order to pursue a claim. Accordingly the statute provides that an employee’s utilization of employer-provided hearing protection devices is tantamount to an employee removing himself from the noise exposure for the requisite 6-month period. If an employee can prove a compensable hearing loss claim, he may be entitled to medical benefits and/or PPD benefits, but O.C.G.A. § 34-9-265(b)(5) expressly bars payment of any temporary total or temporary partial disability benefits for this type of injury.
Fortunately for employers, in Georgia, there is an affirmative defense to an otherwise compensable cumulative hearing loss injury when an employee fails to use employer-provided hearing loss protection devices. To preclude an employee from recovery, the employer has the burden of proving that it provided the employee with hearing loss protection devices, that the devices are capable of preventing hearing loss from the type of noise in the work place and that the employee did not regularly use the devices. While both types of hearing loss claims create exposure for employers, a traumatic hearing loss injury is as difficult for an employer to prevent as is any other type of common lifting, pulling, motor vehicle, slip and fall, or other accident at work, and the same defenses an employer may have for any other type of injury, whether it be an intoxication defense, causation issues or otherwise, still apply. However, occupational hearing loss injuries tend to result from one particular noise-producing environment and consequently, can have far-reaching consequences on many similarly situated employees who all work in that environment. Therefore, with the additional affirmative defense offered to employers by providing hearing loss prevention devices to employees, employers can at least attempt to minimize liability for occupational hearing loss injuries.
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley