Aging Can Be a Defense to Noise-Induced Hearing Loss Claim

There are some injuries in Pennsylvania’s workers’ compensation laws for which no showing of disability is necessary to obtain an award of benefits. These cases, called “specific losses,” include facial disfigurement and loss of use of a body part. One of the types of cases in this category is a claim for loss of hearing, as a result of excessive noise exposure at work.

Generally, the injured worker need only prove that he or she suffers from a permanent hearing loss of at least 10 percent, and that the hearing loss was caused by the long-term exposure to hazardous occupational noise at work. Whether the occupational noise was “hazardous” is not part of the burden faced by the injured worker; instead, that would be an affirmative defense the workers’ compensation insurance carrier could offer. A previous Pennsylvania Supreme Court case from 2000, LTV Steel Co. v. Workers’ Compensation Appeal Board, established that no deduction can be made from the hearing impairment for the normal aging process.

Recently, the Commonwealth Court of Pennsylvania faced some of these issues in McCool v. Workers’ Compensation Appeal Board (Sunoco, Inc.). Here, the injured worker was employed as a firefighter for the City of Philadelphia from 1983 to 1998, then as a refinery operator for Sunoco from 2003 to 2008. In 2001, the injured worker had an audiogram done, which showed less than a 10% hearing impairment. Nearly annual audiograms then, starting in 2002, showed, according to the case, “pre-existing hearing loss that continued to accelerate across all frequencies.”

In 2010, the injured worker was referred by his attorney to Dr. Aaron Shapiro, who performed an audiogram and prepared a report stating that he had an occupational hearing loss that was attributable to his firefighter duties. About two months later, Dr. Shapiro prepared a second report, now stating that the hearing loss was due to the noise exposure at the Sunoco refinery.

After the second report authored by Dr. Shapiro, the injured worker filed a Claim Petition against Sunoco for his loss of hearing. Before the Workers’ Compensation Judge (WCJ), the injured worker described the excessive noise to which he was exposed at the refinery. The WCJ found both the injured worker, and Dr. Shapiro, not credible and denied the Claim Petition. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).
Upon further appeal, the decision was affirmed by the Commonwealth Court of Pennsylvania. The injured worker argued that the WCJ improperly placed the burden upon him to prove that the noise was “hazardous” and that the WCJ erred in crediting the opinion of the doctor offered by the workers’ comp insurance carrier, since that doctor attributed the hearing loss to normal aging process.

The Court went through a thorough analysis of the entire arguments. Frankly, since the injured worker had the burden of proof, and the WCJ found both Claimant and his medical expert not credible (and gave sufficient reason for such findings), the analysis really could have stopped there. That was really the end of the case. The arguments advanced by the injured worker dealt with finding the doctor offered by the workers’ comp insurance carrier credible – however, even if WCJ found both experts not credible, the injured worker would have lost, since he bore the burden of proof.

Regardless, the Court explained that the doctor offered by the workers’ comp insurance carrier did not apportion some of the loss of hearing to the aging process (as the previous case prohibits), but testified that the loss in hearing was not due to the occupational noise exposure. This makes the opinion proper under the law. Mention was also made by the Court that the injured worker was aware of the loss of hearing prior to 2010 (as the WCJ had found), making an unstated reference that the injured worker did not provide timely notice of the work injury.

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