Though, generally speaking, Pennsylvania’s workers’ compensation system is based purely on wage loss, there are exceptions to the rule. With most work-related injuries in PA, workers’ comp is paid only if the injured worker is disabled from his or her job by the work injury.
One large exception is the category of injuries called “specific loss.” This encompasses when an injured worker permanently loses the use of certain body parts or senses. In this event, benefits are paid under the Pennsylvania Workers’ Compensation Act, whether or not there is any disability resulting from the injury. This covers fingers, toes, hands, feet, arms and legs, in addition to the senses of sight and hearing.
Loss of hearing has had many changes in PA workers’ compensation law over the years. In fact, the entire way hearing loss is compensated under PA workers’ comp was changed with Act 1, passed in 1995. For all hearing loss since then, the amount of workers’ compensation benefits paid varies according to the percentage of binaural (both ears) hearing impairment. To receive any workers’ comp benefits, there must be at least a 10% hearing impairment; while, on the other hand, an impairment over 75% is deemed to be a complete loss of hearing.
One issue that arises in hearing loss cases is the contribution of “presbycusis,” the name for the loss of hearing which happens naturally as we age. When addressing the impact of harmful noise-exposure at work in a hearing loss, we also look at the type of hearing loss, as there are different characteristics for different causes. Of course, we also look at other kinds of noise to which the injured worker may have been exposed (military, hunting, power tools, just for a few examples).
Often, a loss of hearing is an insidious, gradual, process, which is not discovered for several years. Indeed, in many of our clients over the years, the injured worker is the last to notice (the family, and friends, who deal with the injured worker, are typically the first to notice).
When the loss of hearing is not raised until after retirement, there can be additional issues arising. One of these issues was faced recently by the Commonwealth Court of Pennsylvania in City of Philadelphia v. Workers’ Compensation Appeal Board (Seaman).
In this case, the injured worker was a fireman in the City of Philadelphia for many years. Several months after he retired, a hearing loss test (known as an “audiogram”) revealed a significant loss of hearing. The injured worker filed a Claim Petition, which was granted by a Workers’ Compensation Judge (WCJ).
The PA workers’ compensation insurance carrier appealed to the Commonwealth Court of Pennsylvania, saying that the injured worker could not win, because he could not prove the extent of hearing loss on the date he retired. The Court, however, rejected this defense and affirmed the granting of the Claim Petition. Unless there was a previous hearing loss test done close in time to the retirement, showing a significantly lesser hearing impairment, there is no such burden on the injured worker, the Court found.
Even more recently, in a decision rendered November 19, 2010, the Commonwealth Court of Pennsylvania again addressed hearing loss in the matter of Joy Mining Machinery Company v. Workers’ Compensation Appeal Board (Zerres). Here, as in the Seaman case above, the WCJ granted the Claim Petition finding a work-related loss of hearing (13.125% hearing loss in this case).
The issues in the Zerres case were whether the injured worker could prove he was exposed to the harmful noise within the three years before a Claim Petition was filed, and whether the WCJ could properly give greater weight to the injured worker’s testimony about noise level than noise-level studies (called “dosimetry readings”) offered by the employer.
The Court affirmed the decision of the WCJ, finding that the testimony of the injured worker, without more, if believed by the WCJ, was sufficient both for the timing of the noise exposure, as well as the level of exposure. The Court noted that the dosimetry readings offered by the employer were not done on the person of the injured worker, nor were they done every day in every area, thus, the dosimetry readings did not prove to what extent the injured worker was actually exposed.