The Expensive Truth About Eye and Ear Claims

The primary purpose of workers' compensation benefits is to compensate employees for time missed from work as a result of a work-related injury, and to pay for medical expenses related to occupational injuries or disease.  But nearly all states also provide for "scheduled"� benefits for losses of function in certain body parts or certain bodily functions. 

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Most states provide that an employee will be awarded a specific number of weeks of benefits for the amputation--or total loss of use of--fingers, toes, hands, feet, arms or legs. These so-called "specific loss"� benefits are also awarded for injury-related scars that result in disfigurement.  Some states require that the scars be located on the face or neck, while other states compensate scars on the arms and legs as well.

What all of these scheduled injuries have in common is that they result in lump sum payments to the employee, even if the employee never becomes disabled because of the injury. If the employee is disabled, the specific losses are often payable in addition to the weekly wage loss benefits. In most jurisdictions, the local workers' compensation statute provides a schedule of benefits payable to the employee based upon a formula of the weekly compensation rate multiplied by a number of weeks associated with the loss. For example, an employee may receive a lump sum equivalent of 100 weeks of compensation for the loss of a thumb, 400 weeks for an arm, or 300 weeks for serious scarring.

Specific loss benefits are also awarded in cases involving loss of sight and hearing. In most states, hearing loss benefits are paid on a sliding scale, depending upon the level of work-related hearing loss as determined by audiometer testing. Some states also allow for graduated degrees of vision loss, but most only award specific loss benefits for complete and permanent loss of sight in one or both eyes.

Pre-Employment Testing Provides a Baseline

If your workplace provides exposure to hazardous levels of noise, it is imperative that all new hires undergo pre-employment audiograms, conducted in accordance with OSHA standards. The results of those tests, and any subsequent testing, should be kept on file for all employees.  Subsequent claims of work-related hearing loss can then be measured against the pre-employment level of hearing loss to limit the claim.

Of course, not all hearing loss is work-related, even for employees who work in noisy environments. The employee will generally have the burden to show exposure to hazardous noise, but that can be achieved with lay testimony from the employee that the workplace was noisy. For this reason, you should also conduct regular noise testing at relevant locations throughout your facilities. Many states' workers' compensation statutes refer to and adopt OSHA standards of hazardous noise exposure.  If yours is a noisy workplace, mandating the use of hearing loss protection (ear plugs or muffs) is necessary. Enforcement of these rules through disciplinary action should not be taken lightly, as simply having safety rules that no one follows will not shield an employer from workers' compensation liability.

If the employer can show either that:

1) the workplace did not expose the employee to hazardous levels of noise, or that

2) the employee wore appropriate hearing loss protection at all times, reducing the noise to non-hazardous levels, the claim will be defeated.

However, most states workers' compensation laws mandate that employees be given the "benefit of the doubt"� in close cases, so it is crucial that your testing be performed professionally and convincingly documented.

Even if an employee is exposed to hazardous noise in the work-place, it doesn't necessarily mean that the employee's hearing loss is related to that noise. Medical experts can review the audiometric testing results and offer an opinion as to whether the employee's hearing loss characteristics are consistent with noise-induced hearing loss. For one thing, the hearing loss should be bilateral and substantially equal in both ears. Further, audiogram results showing noise-related hearing loss typically graph-out in a particular pattern.

Awards in hearing loss claims are, again, paid out regardless of whether the employee is disabled from working by his hearing loss. Total bilateral hearing loss generally entitles an employee to a lump sum award of 250 weeks of benefits or more, depending on the particular jurisdiction.

The Potential for Six-Figure Liability

Highly compensated employees with average weekly wages in excess of $1500 could have a weekly compensation rate of $1000. That equates to potential liability of $250,000 or more for total loss of hearing or the loss of one eye. Given that risk, it is easy to see the value of good quality safety precaution for the eyes and ears in the workplace.

This article appears in our upcoming issue of Safer Every Day, the definitive digital magazine on workplace safety, and was written by leading workers' comp attorney Matt Wynn.

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