|
 Printer-Friendly Version
- Purpose and Scope. This Chapter contains the procedures for developing and adjudicating claims for loss of hearing allegedly due to employment covered by the LHWCA or an extension thereof. These instructions apply mainly to hearing loss caused by repeated exposure to excessive or harmful noise in the day-to-day work environment. Some of the procedures may apply to loss of hearing caused by a traumatic incident.
-
Authority. Section 8(c)(13) of the Act; 20 C.F.R. sections 702.212(a)(3), 702.221(b), 702.231, 702.441; 29 C.F.R. section 1910.95.
-
Definitions and Terms.
a. Amount of Hearing Loss. Hearing loss determinations are to be made in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment using the frequencies of 500, 1,000, 2,000, and 3,000 Hz. A hearing loss may be monaural or binaural. See subparagraph 7b, below.
b. Audiograms.
(1) Determinative audiogram. The audiogram used to calculate the degree of hearing loss for compensation purposes.
(2) Audiograms performed before December 27, 1984 should include the following information:
(a) An indication of what equipment was used and the date calibrated and by whom;
(b) The measurement scale used (ANSI, ISO or ASA);
(c) A statement on the cooperation of the Claimant;
(d) The claimant's physical condition should be evaluated to assure that no temporary shift occurred due to: (1) ear wax, or (2) a cold or other physical ailment;
(e) The date of the test and the date the claimant was last exposed to noise;
(f) The name and qualifications of the person who performed the test;
(g) Test results for both bone conduction and pure-tone air conduction studies.
(3) In addition to the information listed above, audiograms performed after December 27, 1984 must conform to the following standards (see 20 C.F.R. section 702.441(d) and 29 C.F.R. 1910.95):
(a) The audiometer must be calibrated according to current American National Standard Specifications for Audiometers,
(b) Audiometric tests shall be pure tone, air conduction, hearing threshold examinations, with test frequencies including, at a minimum, 500, 1000, 2000, 3000, 4000 and 6000 Hz. These frequencies are required by 29 C.F.R. section 1910.95(h)(1) (see 20 C.F.R. section 702.441(d)). Tests at each frequency shall be taken separately for each ear, and
(c) Audiometric examinations shall be administered in a room meeting the requirements for background noise listed in Appendix D of 29 C.F.R. section 1910.95.
c. Average Weekly Wage Determinations. As noted in subparagraph 3k, below, the date of last exposure to injurious stimuli prior to administration of a determinative audiogram is the relevant time of injury for purposes of calculating the average weekly wage. See Ramey v. Stevedoring Services of America, 31 BRBS 206(CRT)(9th Cir. 1998); Mauk v. Northwest Marine Iron Works, 25 BRBS 118 (1991). See also Bath Iron Works Corp. v. Director, OWCP (Brown), 506 U.S. 153, 26 BRBS 151(CRT) (1993).
d. Classes of Hearing Loss.
(1) Conductive Loss. This loss is caused by a defect in the external or middle ear from disease or injury. It is never caused by excessive noise in the work environment.
(2) Perceptive Loss. This loss arises in the inner ear. It may be caused by prolonged exposure to excessive noise in the work environment or it may be caused by other factors, such as diseases of the brain, general or infectious diseases, drugs, or advancing age. For this reason, the CE's development of the evidence should consider whether some factor other than the claimant's employment may be one cause of the hearing loss.
(3) Mixed-Type Loss. In this class, the deafness is due to both kinds of loss - conductive loss and perceptive loss. An award of compensation is based upon the sum of both types of loss since the entire loss is compensable when any portion is work-related.
e. Credit.
(1) Where the claimant has been compensated for a previous hearing loss, either under a state act or the LHWCA, the amount paid for the prior hearing loss is to be credited against any award which includes the prior loss. Section 3(e), Brown v. Bethlehem Steel Corp., 19 BRBS 200, aff'd on recon., 20 BRBS 26 (1987), aff'd in pert. part, 868 F.2d 759, 22 BRBS 47(CRT) (5th Cir. 1989).
(2) Where the prior award was for a pre-employment hearing loss, the credit is to be applied against the Special Fund's liability. Blanchette v. General Dynamics Corp., 27 BRBS 58(CRT) (2d Cir. 1993).
f. Occupational Disease. Although hearing loss is an occupational disease it is not the type of long latency period occupational disease contemplated by Congress when it amended the Act in 1984. Unlike asbestosis, the symptoms of hearing loss occur simultaneously with the "disease." Therefore, hearing loss is not "an occupational disease which does not immediately result in...disability" within the meaning of section 10(i) of the Act. In view of this fact, "claims for loss of hearing, whether filed by current workers or retirees, are claims for a scheduled injury and must be compensated pursuant to section 8(c)(13) of the LHWCA, not section 8(c)(23)." Bath Iron Works Corp. v. Director, OWCP (Brown), 506 U.S. 153, 26 BRBS 151(CRT) (1993).
g. Presumptive Weight of Audiograms. An audiogram shall be presumptive evidence of the amount of hearing loss on the date administered if all of the following requirements are met:
(1) The audiogram was administered by a licensed or certified audiologist, by a physician certified by the American Board of Otolaryngology, or by a technician, under an audiologist's or physician's supervision, certified by the Council of Accreditation on Occupational Hearing Conservation, or by any other person considered qualified by a hearing conservation program authorized pursuant to 29 C.F.R. section 1910.95(g)(3).
(2) The employee was provided the audiogram and a report thereon at the time it was administrated or within thirty days thereof.
(3) No one produces a contrary audiogram of equal probative value (meaning one performed using the standards described in subparagraph 3b above) made at the same time.
h. Responsible Employer/Carrier.
(1) Employer during the last employment in which the claimant was exposed to injurious stimuli prior to the date the claimant receives an audiogram showing loss of hearing, and has knowledge of the causal connection between his or her work and the hearing loss.
(2) Carrier who insured the employer at the time of the last injurious exposure.
i. Same Time. This means within thirty days thereof where noise exposure continues or within six months where exposure to excessive noise does not continue.
j. Threshold Shift. The loss of sensitivity to sound. A threshold shift may be temporary or permanent.
k. Time of Injury. For purposes of pay rate determination, the time of injury is the date the claimant is last exposed to injurious noise prior to the determinative audiogram. Bath Iron Works Corp. v. Director, OWCP (Brown), 506 U.S. 153, 26 BRBS 151(CRT) (1993). For purposes of notice provisions and statute of limitations provisions, the time of injury is the date the claimant receives an audiogram, with a report thereon, which discloses a hearing loss. Section 8(c)(13)(D). See Mauk v. Northwest Iron Works, 25 BRBS 118 (1991) for a discussion of how the time of injury is applied for purposes of sections 12 and 13 and AWW determinations.
l. Whole Person Impairment. The AMA Guides provide charts for the conversion of impairments of specific limbs and organs to impairment of the whole person. It is our policy to use the whole person impairment only where the claimant is receiving two or more awards based upon section 8(c)(23) of the Act. (See PM 3-400.5e ) In cases being paid pursuant to section 8(c)(13), the award is to be based upon the amount of hearing loss.
-
The 1984 Amendments. The 1984 Amendments to the Act made a number of changes concerning hearing loss. Audiograms are presumptive evidence of the amount of hearing loss sustained as of the date it is taken if a three part test is met. The time periods for giving notice and filing a claim do not begin to run until the employee is given a copy of the audiogram and a report there on. The amount of hearing loss is to be determined in accordance with the AMA Guides, using the frequencies of 500, 1000, 2000, and 3000 Hz. The 1984 Amendments do not apply to claims filed under the 1928 District of Columbia Workmen's Compensation Act, Keener v. WMATA, 800 F.2d 1173 (DC Cir. 1986). As noted above, the AMA Guides provide for and further recommend the conversion of actual binaural hearing impairment to impairment of the whole person. The amount of actual binaural hearing impairment, however, is to be used in calculating awards under section 8(c)(13). Those cases should be distinguished from other occupational disease claims which may fall under the retiree provisions of section 8(c)(23), wherein it is the Director's position that the whole person impairment rating be used. (See PM 3-400.5e, and subparagraph 3f, above.) The 1984 Amendments also changed the apportionment formula for hearing loss claims where there was a pre-existing loss. Previously, the EC was responsible for the percent of hearing loss due to the second injury or 104 weeks, whichever was greater. Since most hearing loss awards did not exceed 104 weeks, EC's infrequently received section 8(f) relief. The Act now provides that the EC is responsible for the percent of hearing loss due to the second injury or 104 weeks, whichever is less.
-
Evaluation of Claims for Hearing Loss.
a. Factors Influencing Hearing Loss. The following are factors influencing damage to an ear by sound or noise.
(1) Intensity of Sound - Measured in Decibels. Exposure to noise of an intensity in excess of 85 decibels can prove damaging to the hearing. The intensity is determined by a noise-level meter. To the extent possible, the results of a reliable sound level survey of the work area should be obtained before a claim is adjudicated. This is especially important when multiple claims are filed against one employer.
(2) Frequency or Spectrum of Noise. Lower pitched sounds are less damaging to the ear. Those involving tones above 1,000 cycles per second are the most harmful and more likely to cause damage to hearing.
(3) Continuity of Sound. Continuous noise is more harmful than intermittent sounds.
(4) Duration of Exposure. Prolonged exposure has a cumulative effect on hearing loss.
(5) Individual Susceptibility. All persons are not equally susceptible to harmful noise.
(6) Fatigue or Temporary Loss. In many cases, a degree of the impairment is a form of "fatigue" or temporary loss (threshold shift). Since this temporary loss can only be distinguished from a permanent loss by the extent of its duration any hearing loss evaluation must be made 16 hours or more after the last exposure to noise.
b. Action by DD/CE to Resolve Questions. Since the time of injury does not occur until the claimant receives an audiogram and a report thereon, most hearing loss cases will contain some medical evidence. In the event that the claimant's audiogram conflicts with an audiogram performed by the EC or any other audiogram, the DO should attempt to resolve any questions by use of an impartial medical evaluation.
c. Case Documentation for Referral. Before a claimant is referred for an impartial medical evaluation it is desirable that the case contain as much of the following information or evidence as is readily available or considered pertinent:
(1) From the employee (as much of the following as the DD/CE considers pertinent):
(a) A statement or other information giving specific reasons the employee believes the hearing loss is due to the work.
(b) A detailed description, in chronological order, of the particular work factors which the employee believes to be the cause of the hearing loss. The employee should also state whether any protective devices were used (such as ear defenders) describe the devices, and state the approximate number of hours per day and days per week they were used.
(c) A statement indicating whether the employee had any ear or hearing problems prior to the employment alleged to be the cause of the loss, and, if so, full details of the problems, including dates, and the names and addresses of all physicians who examined or treated for the problems.
(d) Full details, if employee ever before filed a claim for workers' compensation or for similar benefits (e.g., Veterans Administration or State benefits), because of this, or any condition affecting the employee's ears or hearing. The information furnished should include the date of the claim, the name and address of the office where the claim was filed, and a description of any benefits received.
(e) Originals or copies of all audiograms made by any physician or medical facility.
(2) From the EC (as much of the following as the DD/CE considers pertinent):
(a) The employee's complete work assignment record, showing the positions held and, if possible, inclusive dates of assignments, a description of the duties performed, the type of noise to which the employee was exposed, and the length of time such exposure on each assignment.
(b) A description of the employee's work sites, including a diagram showing the dimensions and layouts of the areas, and a discussion of the noise hazard at the time the employee was on duty.
(c) The safety precautions (such as providing ear defenders, noise suppressors, acoustical engineering, etc.) taken to eliminate or reduce noise hazards.
(d) A statement as to whether any other employees performing the same work under the same working conditions had similar complaints.
(e) A copy of the employee's pre-employment medical examination.
(f) Medical records in the possession of the EC which show any ear trouble, and copies of all available audiometric tests (audiograms).
(g) The date and time the employee was last exposed to noise on the job. If the exposure is continuing, a statement should be made of that fact.
-
Loss of Hearing Determinations.
a. Policies.
(1) The most recent edition of the Guides to the Evaluation of Permanent Impairment, published and revised from time to time by the American Medical Association is to be used for hearing loss determinations.
(2) All audiograms must continue to show test results for bone conduction and pure-tone air conduction studies. Schedule award determinations should be made based upon the loss as shown by the air conduction studies only.
(3) An audiogram that shows a greater loss for bone conduction than air conduction may not be used to establish the degree of hearing loss, nor may it be used to corroborate other audiograms. Such an audiogram is unreliable and should be disregarded.
(4) It remains DLHWC policy to include any pre-existing hearing loss in the schedule award calculation, where factors of employment have aggravated that loss. If the pre-existing hearing loss was previously compensated, credit should be given for the dollar amount compensated.
(5) If either of the parties disagrees with the recommendation of the district office the case should be referred for a formal hearing at the request of either party.
b. Determinations.
(1) The statute requires that hearing loss determinations be made in accordance with the AMA Guides. (See section 8(c)(13)(E).) Procedures for determining the amount of hearing impairment are found in the Guides.
(2) The Guides includes a method for calculating the percentage of binaural loss and this method must be used. The method uses the frequencies of 500, 1000, 2000, and 3000 Hz. Binaural hearing impairment is determined using the following formula:
|
|
5 x % hearing impairment |
|
% hearing impairment |
Binaural Hearing Impairment, (%) |
= |
of better ear |
+ |
of poorer ear |
|
|
|
6 |
|
(3) Using this formula, if the hearing loss does not exceed twenty-five decibels when the audiogram is based on an American National Standards Institute (ANSI) calibrated audiometer, there is no compensable loss. The Guides includes procedures for converting audiograms based upon the older ASA standard.
c. Referral of Claimant for Hearing Evaluation.
(1) Conditions/Methods for Referral. If the EC has controverted the claim and the claimant has not been examined by an otologist, the DD/CE, after having obtained all of the available pertinent medical reports and factual information, (see subparagraph 5c, above) will, with the agreement of the parties, prepare a memorandum of the undisputed facts pertaining to the nature of the employee's employment, etc., for referral of the case to an otologist selected by the DD/CE for examination and evaluation. (With respect to opinions, reports, or conclusions of any prior examining physician concerning the nature and extent of the impairment, its cause, etc., 20 C.F.R. section 702.411 should be observed.) After obtaining the otologist's agreement the DD/CE will refer the employee, the memorandum, and any other necessary information and reports. The examining otologist will be asked to examine and test the employee and furnish a report. The otologist should include in a report the date and hour of the employee's last exposure to employment related noise, which exposure must have been more than sixteen hours before the examination. The physician should also be instructed to make use of retesting and additional tests and techniques considered appropriate in those cases where it is determined that the results of the initial tests were inadequate or where the results appear to be inaccurate.
(2) Restrictions. In no case will examination by a physician or medical facility be authorized unless the physician or facility can certify that no more than one year will have passed from the date the audiometer to be used was last properly calibrated until the date of the scheduled examination. Each physician or facility should be asked to include in the report of examination the date of calibration of each instrument used and by whom the calibration was performed.
(3) Charges for Evaluation. The cost of the evaluation may be charged to the employer, or an insurance carrier. The cost of the examination may also be charged to the Special Fund in special circumstances and with the concurrence of the Director, DLHWC.
-
Calculation of Hearing Impairment.
a. Applicability of Guidelines. The phrase "permanent partial disability" in section 8(c) of the Act is interpreted to mean "permanent partial physical impairment". The same standards for evaluating such impairment are applied in all like cases. The AMA Guides are used as guidelines for evaluating all permanent physical impairments, including hearing loss.
b. Methods of Calculation.
(1) The DD/CE will calculate the percentage of hearing impairment from the findings reported by the otologist, but in making a recommendation shall consider all relevant factors in the case. Loss of hearing may be monaural or binaural. If the claimant's hearing impairment is ratable in only one ear, it is to be compensated in accordance with section 8(c)(13)(A) of the Act, regardless of the type of causation. Rasmussen v. General Dynamics Corp., 993 F.2d 1014, 27 BRBS 17(CRT) (2d Cir. 1993); Garner v. Newport News Shipbuilding & Dry Dock Co., 955 F.2d 41, reported unofficially at 25 BRBS 122(CRT) (4th Cir. 1992).
To obtain the degree of monaural hearing loss, the DD/CE will use the formula which deducts the hearing level threshold from the average measured frequencies, using the frequencies of 500, 1000, 2000, and 3000 Hz. This is the formula used in the AMA Guides. The "fence" or hearing threshold level of twenty-five db (using ANSI calibrated audiometers) should be deducted from the average of the measured frequencies. If the audiometer is calibrated using ASA-1951 standard, a fifteen db "fence" should be deducted from the average measured frequencies.
(2) Binaural loss of hearing will be calculated using the following formula:
|
|
5 x % hearing impairment |
|
% hearing impairment |
Binaural Hearing Impairment, (%) |
= |
of better ear |
+ |
of poorer ear |
|
|
|
6 |
|
The following is an example of a typical audiograms showing a neurosensory loss (monaural) using the AMA formula. For every decibel (db) that the estimated hearing level exceeds twenty-five db (ANSI), 1.5% monaural impairment is assigned.
CPS |
500 |
1000 |
2000 |
3000 |
db loss |
15 |
20 |
35 |
60 |
Average 130db / 4 = 32.5
Less the fence of 25 db = 7.5 db x 1.5%/db
% Loss = 11.25
(3) The following computation illustrate how the percent of binaural loss is derived assuming a 10% monaural loss in the left ear and a 15% monaural loss in the right ear.
(5 x 10) + 15 = 10.8%
6
(4) The DD/CE will then follow the procedure in subparagraph 7c, below. It should be noted that a recommendation on the amount of permanent partial disability is an administrative action as it relates to the claimant's entitlement. The DD/CE should consider all of the evidence of record in making this recommendation.
c. Action Following Receipt of the Report.
(1) DD's Assessment of Otologist's Report. Upon receiving the otologist's report, if a reported finding of hearing loss was, in the otologist's opinion, related to the employment conditions alleged to have been the cause, the DD will calculate the percentage of hearing impairment from the otologist's findings according to the procedures outlined in subparagraph 7b(4).
(2) Calculation of the Award.
(a) Monaural Hearing Loss. The amount of monaural hearing loss is multiplied times the number of weeks contained in section 8(c)(13)(A) to determine the length of entitlement. This number of weeks is multiplied times the compensation rate (i.e. AWW x 2/3) to determine the amount of compensation. The following is an example of the application of this formula:
11.25% monaural loss x 52 weeks = 5.85 weeks
5.85 weeks x $392 x 2/3 = $1,528.80
(b) Binaural Hearing Loss. If there is a binaural loss of hearing, the amount of binaural loss is multiplied times the number of weeks contained in section 8(c)(13)(B), and then times the compensation rate. The following is an example of the application of this formula:
10.8% binaural loss x 200 weeks = 21.6 weeks
weeks x $392 x 2/3 = $5,644.80
(3) Recommendation. Using the figures derived from the calculations contained in subparagraphs 7b(4), and 7c(2), above as a guide, and taking into account such other factors as warrant consideration, the DD/CE handling the case will make a recommendation for payment of a schedule award and notify the parties as to the of payment of benefits.
It is important to also make a finding as to when the schedule award begins to run since this will obviously affect such determinations as whether the entire schedule is accrued and unpaid, whether continuing installment payments are warranted, and the amount of sliding/straight interest, if any, due on the unpaid compensation
(a) Section 14(e). Since the Supreme Court's decision in Brown provides a time of injury for former employees which is often in the distant past, i.e., the last day of injurious workplace noise exposure, the entire schedule award may have run by the time of employer's knowledge, thereby making the entire amount "then due" within the meaning of section 14(b) and (e) of the Act. Since the section 14(e) penalty is triggered by a failure to pay compensation when due, i.e., fourteen days after the employer has been notified pursuant to section 12, or the employer has knowledge of the injury, an employer who timely controverts or pays the full amount of compensation due within the period prescribed by section 14(b) will not be liable for a section 14(e) penalty even though the controversion or payment is made years after the compensable injury occurred.
(b) Like the section 14(e) penalty, interest for post-retirement hearing loss awards will not begin to accrue until the employer has been notified pursuant to section 12 or the employer has knowledge of the injury or death. See Renfroe v. Ingalls Shipbuilding Inc., 30 BRBS 101, 108 (1996) (en banc). In the Renfroe case, the last injurious exposure occurred in 1971 and the claimant's entitlement to a schedule award for hearing loss under section 8(c)(13) commenced at that time. However, the employer did not have knowledge of the injury until February 23, 1987. Since the entitlement to the schedule award began in 1971, the entire amount of the schedule was due and unpaid as of February 23, 1987, and the BRB held that interest was to be assessed on the entire amount beginning February 23, 1987. Since the entire amount of the schedule is past due, the period of entitlement has ended, and no additional payments are due, only the formula for "straight" interest (see PM 8-201) is applicable.
For the sake of this example, assume an interest rate of 6.09%, a total amount due of $363.19, and that payment was made on June 24, 1996.
Straight interest formula -- Interest = A * n * v
Interest = $363.19 * (bi-weekly periods during 02/23/87 - 06/24/96) * (.0609 / 26)
Interest = $363.19 * 243.57142 bi-weekly periods * .002342
Interest = $207.21
Depending on the date of maximum medical improvement (i.e., date of last injurious exposure) and the date of the employer's knowledge, interest may involve the application of both "straight" and "sliding" interest. See the following example:
Beginning date of the schedule award - December 9, 1999
Percent of binaural hearing loss - 42.7% (schedule should end on July 28, 2001)
Compensation rate - $347.00 per week
Date of the employer's knowledge of injury - March 1, 2000
Date of payment - May 9, 2000
Interest Rate - 6.0%
As of March 1, 2000 (the point at which interest is payable), that portion of the schedule from 12/09/99 through 03/01/00 (12 weeks x $347.00 = $4,164.00) would be accrued and unpaid, and subject to "straight" interest.
Interest = A * n * v
Interest = $4164.00 * (bi-weekly periods during 03/01/2000 - 05/09/2000) * (.06 / 26)
Interest = $4164.00 * 5.00000 bi-weekly periods * .002308
Interest = $48.05
That portion of the schedule award from 03/02/00 through 05/09/00 is subject to "sliding" interest.
Interest = (B * r) * (p2-p)
26 * 2
Interest = ($694.00 * 6.0%) * (24.29080 - 4.92857)
52
Interest = $41.64 * 19.36223
52
Interest = $806.24325
52
Interest = $15.50
Total interest in this example would be $63.55 ($15.50 + $48.05). It is assumed that any further payments after 05/09/00 would be made by the EC in a timely manner and would not be subject to the payment of interest.
Another scenario would be that the EC did not make payment until after the period of schedule award had ended, e.g., payment was made in September 2001. In this instance, the period from 03/02/00 - 07/28/01 would be subject to both "sliding" and "straight" interest.
d. Action of the Parties.
(1) Acceptance of the Recommendation. If the parties accept the recommendation, the usual procedure followed for awarding benefits to an injured employee having residual physical impairment shall be followed by the DD/CE (see PM 4-200.9).
(2) Rejection of the Recommendation. If either party rejects the recommendation, a conference may be scheduled to determine whether agreement can be reached. Should the parties continue to disagree, procedures described in 20 C.F.R. section 702.316 and PM 4-600 shall be followed to refer the case for formal hearing by an Administrative Law Judge.
e. Failure to Agree as to Accepted Facts. If the parties are unable to agree upon a body of facts as to the duration and extent of the claimant's exposure to noise at work, or if either the EC or the claimant refuse to furnish information on which the DD/CE can base a recommendation, the case shall be referred to the Office of Administrative Law Judges for formal hearing.
| |
|
