Written by: Andres Gomez
Old Habits Die Hard – The Comeback of the Occupational Hearing Loss Claim
Occupational hearing loss claims were all the rage just before COVID. Unfortunately, they appear to be making a significant comeback. There are three main decisions that have emboldened the plaintiff bar to file these claims.
In Arrant v. Graphic Packaging Intern., Inc., (169 So.3d 296), the court specifically addressed whether gradual noise induced hearing loss is compensable in finding that these types of claims are valid under the Louisiana Workers’ Compensation Act. Subsequently, the court in Scott v. Packaging Corporation of America, (251 So.3d 466) placed some restrictions by determining that the occupational hearing loss in and of itself is not sufficient, there needs to be some type of disability. These two decisions laid the groundwork for the case that has largely affected, and allowed, these decades old cases.
In Tower v. ConocoPhillips Company, (283 So.3d 612), the court looked at when prescription begins to run on these occupational hearing loss claims. The court identified the elements that must be met for prescription to begin to toll on an occupational hearing loss claim, stating that 1) the employee needs to know of the hearing loss, 2) the hearing loss has to be work related, and 3) a doctor has to have found them to be disabled. Once those elements are met, then prescription begins to toll. It is number three that causes the headache.
We know that there is a new push for these cases and the letters of representation are coming in quickly. So what should you do if you receive one?
1. Approve an Initial Visit – Regardless of whether there will be a dispute about causation, if the claimant was an employee, approve the initial visit with the doctor because the claimant’s attorney will likely file a Motion to Compel the Initial Evaluation and that may result in an assessment of penalties and attorney fees.
2. Provide Audiograms and Medical Records – If the employer has audiograms, provide them to the claimant’s attorney.
3. Contact your preferred attorney – There may be ways to mitigate the potential exposure if there is an argument under the last injurious exposure doctrine or if the claimant is retired
4. Set up an SMO – Start looking at setting up an SMO for the occupational hearing loss to take place after the initial evaluation to combat the likely conclusion of the treating physician.
Remember that these cases come in exponential increments as one claimant will tell 5 others and these claims will come in droves!