MARSZALEK & MARSZALEK Attorneys at Law
MARSZALEK & MARSZALEK                                      Attorneys at Law 

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Loss of Hearing in the WorkPlace 

Joe has worked at a factory for six years. He works at a lathe which is not particularly noisy. Next to his lathe is a screw driver machine which causes a lot of noises. He has complained of decreased hearing in his ears for about two years. In fact, he cannot hear the turn signals on his car. He hears a constant "roaring" in his ears and is forced to turn up the volume on his television. He can still hear but not as well as before he started this job. His company gave him ear protectors after OHSA came in the plant and issued them a citation for "excessive environmental noise." He wants to know if he can be compensated for disability to his ears and his problems with his hearing. Fortunately, since July 1,1976, Joe can collect for his partial loss of hearing. His situation is the classic case of noise-induced hearing loss. 

 

Exposure to noise over a prolonged period of time can produce hearing loss. This is known as "noise-induced hearing loss." Excessive noise over a long period of time injuries the hair cells in the inner ear. This injury produces a loss of hearing in the inner ear. Loud noises, such as jet engines or forge shop hammers, can cause damage to these hair cells at a faster rate than the normal loss of hair cells due to aging. The distance the employee is working from the machine, the type of sound,, continuity of exposure, and the individual employee's susceptibility are all factors which should be considered. The loss can come on gradually. It is usually accompanied by ringing, buzzing, whistling, or roaring in the ears after work. This is know as "Tinnitus" and is the first clear sign of noise induced hearing loss. Employees have complained to me of going home after work and hearing sounds "like wind going through the trees." In much more severe cases, employees have had to put amplifiers on their home telephones and turn their television volumes all the way up in order to hear. If it can be proven that the loss of hearing is due to work, the employer can even be held liable for the cost of purchasing the hearing aids. It is important to note that noise-induced hearing loss usually affects both ears and the hearing loss in both ears is usually the same. However, if an employee works for a long period of time next to a noisy machine, and one ear is continually turned toward that machine, the noise-induced loss can be conceivably be in one ear.

 

The hearing test indicates where the damage has been done. In a hearing loss due to exposure to loud noises over a period of years, there is generally an equal hearing loss in both ears. This is also confused, at times, with hearing loss due to old age, "Presbycusis". In an elderly person, it is diffucult to determine the amount of deafness due to old age and that due to noise. 

 

Presbycusis is present from the day one you were born. As a person reaches the age of two to four, he begins to lose hair cells in the ear and does not stop until the day he dies. The hair cells in the ear move the sound from the outer ear to the inner ear. The loss of hair cells through the aging process produces a gradual loss of hearing. This gradual loss of hearing is often accelerated by exposure to loud noises at work and therefore can be compensable before the Illinois Workers' Compensation Commission (IWCC). 

 

Prior to July 1, 1974, an employee had to be totally deaf to be compensated for a loss of hearing due to his job. On July 1,1975, the Illinois Workers' Compensation Act was changed so as to allow for compensation for partial loss of hearing. An employee who was able to show some of his loss was due to noise at work could collect money in the form of disability from his employer. 

 

As a result of the change in the law on July 1, 1975, hundreds of claims were filed in the State of Illinois that alleged partial loss of hearing. Accordingly, as no cases of any consequences have been filed before July 1, 1975 for partial loss of hearing, the IWCC was in a quandry as to how to decide these cases. To further complicate matters, one could under the Illinois Workers' Compensation Act or the Illinois Occupational Diseases Act. Further complicating matters was that effective August 31,1976, total deafness was worth fifty weeks per ear under the Workers' Compensation Act and a hundred weeks per year under the Occupational Diseases Act. Thus, if an employee could show that he was 40 percent deaf in one ear he would get twenty weeks of disability under the Workers' Compensation Act. However, if he was determined to be 40 percent deaf under the Occupational diseases Act, he would get forty weeks of disability or at least double the amount of compensation he would get under the Workers' Compensation Act. 

 

Accordingly, effective September 15, 1980, the law as to loss of hearing was again changed and a formula was established to determine in the partially deaf employee. The IWCC under the formula is mandated to consider an audiogram (hearing test) to determine what percentage of loss of hearing has occurred. Usually, the test is given in a sound-proof booth and the employee is asked to press a button once a tone is turned off. The employee is asked to respond to tones at different frequencies. These frequencies are plotted on a graph (audiogram) and are usually given to the employee. Three of the frequencies are used to calculate the loss of hearing under the formula devised by the State Legislature. These three frequencies are used to calculate the percentage of hearing loss. The percentage of hearing loss is then translated to the schedule of the of the Workers' Compensation Act or the Occupational Diseases Act for loss of hearing, and the employee is awarded the corresponding weeks of disability. 

 

It is some of interest to note as of the writing of this article, the Workers' Compensation Act still bases loss of hearing on fifty weeks per ear and the occupational Diseases Act on a hundred weeks per ear. Thus, it is to the employee's advantage to be compensated under the Occupational Diseases Act on a hundred weeks per ear. 

 

An even further advantage on filing under the Occupational Diseases Act can be gained by the employee who works overtime. Once the percentage of loss of hearing and the number of weeks of disability are obtained under the formula, one multiples the weeks of disability by the injured employee's "permanancy rate." Basically, the permanancy rate is calculated by taking two-thirds of the injured employee's average weekly wage for the year proceeding the injury. 

 

By the amendments of September 15,1980, an employer received credit for any hearing loss established by the audiometric testing on or before July 1, 1975. However, the use of hearing aid does not effect the employer's liability. The hearing test is done on the deaf or partially deaf employee without the use of a hearing aid. 

 

A hearing loss for exposure to noise for a long period of time cannot be brought unless certain sound levels at the work place are met. However, a direct injury to the ear (trauma) or an explosion negates the use of these minimum sound levels. Accordingly, if an employee works in a loud factory for years, he must establish that he was exposed to a certain noise level for a certain number of hours each day. This can usually be done through the use of OHSA investigation records or the records of sound measurements done at the request of the company.

 

How does one establish to one's employer that one has a noise-induced and work-related hearing loss?

  • First, the employee must establish that he was exposed to loud noise over a period of time.
  • Second, there is usually the subjective sign of sounds in the ear after work, (Tinnitus).
  • Next, there is a test of the hearing loss by an audiologist to indicate that there is a loss of hearing.

This produces an audiogram or test results which are converted to the percentage of hearing loss by the formula adopted in Illinois. 

 

It should be noted that many times, tests for hearing loss are done by the employer. When the law allowing recovery for partial loss of hearing was passed effective July 1, 1975, there was a flurry of hearing test done by the employers. Mobile test centers were carted around the state and placed in parking lots. Employees were rushed from the plant out to the trailer in the company parking lot and asked to respond to various noises. Audiograms were made as employers tried to establish hearing loss around that date. False results were obtained in many cases in that employees were rushed from such loud environments as noisy factories and forge shops and given these tests. As they has been exposed to loud noises and pounding for hours before the test, they could not hear as well during the test.

 

Accordingly, they showed great losses of hearing at that time because they had been exposed to noise before the test. When these injured employees tried to file claims before the IWCC years after the test, employers tried to claim credit and some even tried to prove that after more exposure and noise the employee's hearing had even gotten better. The false results of these instances were due to the phenomenen of temporary thres-hold shift. Temporary threshold shift is a temporary change in one's threshold of hearing. The exprienced attorney in the handling of these claims usually questions the circumstances surrounding the test results and the method in which the test were taken. In one particular case handled by the author, the IWCC did not even consider the test results taken in the company parking lot after the partially deaf employee had been working in a forge shop for four hours on the day of the test. Therefore, if an employee suspects a loss of hearing due to exposure at work, it is best to be tested by an independent audiologist after removal for a period of time from the noise. 

 

Repeated exposure to industral noise can eventually be led to such a loss of hearing that one cannot hear other people talking in normal conversation. Workers in the thirty to fifty year old age group can sustain a gradual loss of hearing which eventually becomes permanent. In this age group, their best work productive years are still ahead of them. Having to live and work with this hearing loss can affect the injured employee's work, social, and personal life. One cannot ignore the effects of excessive noise exposure. Employers have the responsibility to protect the worker from excessive noise. If the employer does not provide adequate noise protection, the employee under Illinois law has the right to seek a financial remedy. The advice and opinion of appropriate legal counsel should be sought under these circumstances. 

 

 

 

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