Written By: Andres Gomez
The claimant has been retired for 20 years and all of a sudden, you get a 1008 seeking workers’ compensation benefits. Welcome to the wonderful world of occupational hearing loss claims. We know that hearing loss resulting from a single identifiable accident is treated like any other acute injury arising out of an accident while in the course and scope of employment. At least as far as the general process goes. But what about cases where the hearing loss is gradual to a degree that a claim is not brought for, in some instances, decades.
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.
Claimants that have been retired for decades are going to the doctor (at the direction of their attorney) and having the doctor state they are not able to work in noisy environments because of their hearing loss. It is then that prescription will begin to toll and when, according to the Scott decision, the claim for benefits begins. We have seen these cases prevalent with plant workers as many plant workers undergo yearly audiograms and are able to establish that gradual hearing loss. However, there have been claims made by individuals in other industries.
Remember when these claims come in that although an individual may be retired or, at first glance, seemingly unable to make a claim because of a prescriptive issue, the case law for occupational hearing loss claims is very specific. The compensability determination needs to be made considering the decisions that directly affect compensability.
These cases might appear dead on arrival, but they are always looming and become active as soon as a doctor determines there is a disability. They don’t die with retirement, and they don’t die with time.
