Workers’ compensation law in each state has a fairly straightforward method for how certain permanent disabilities should be rated and compensated. For example, if your left hand is permanently injured but the injury is not severe, you may be rated with a 10 percent permanent disability. Meanwhile, a more serious injury would warrant a 60 percent disability. Compensation would be based on that percentage, factoring in your average weekly income prior to injury.
Still, there is a broad degree of discretion granted to hearing officers, commissions and courts in determining the extent of injury and benefits.
In the recent case of Lambdin v. Goodyear Tire & Rubber Co., plaintiff suffered hearing loss and requested workers’ compensation loss after retirement. Although there were no strict guidelines for the degree of hearing loss beyond a certain point, plaintiff successfully made a claim for higher benefits based on the submission of expert witness testimony regarding methods for rating impairment that are accepted by the medical industry.
According to records with the Tennessee Supreme Court, plaintiff worked for 37 years at a tire/rubber company, where he suffered a gradual hearing loss, especially to sounds above the frequency level of 3000 hertz. When he first started working at the company in 1972, they did not provide ear protection. When the firm began supplying ear buds sometime in the mid-1980s, worker chose to wear them all the time. However, he still sustained significant hearing loss, as he was exposed to constant and significant nose during every work day.
Soon after he retired, he made a claim for workers’ compensation.
The trial court weighed the evidence and found that while the American Medical Association did not specify how to rate hearing losses higher at frequencies higher than 3000 hertz, plaintiff should be awarded 30 percent disability not only for impairment at 2000 to 3000 hertz, but also at 3000 hertz to 4000 hertz. Employer appealed on grounds the worker’s doctor didn’t ascertain anatomical impairment above the 3000 hertz level. However, the state supreme court affirmed based on expert witness testimony that established the appropriate method for impairment rating that is largely accepted and used by the medical community.
It’s worth noting that humans can typically hear at ranges of well over 10,000 hertz, so a loss of hearing at a frequency of 3000 hertz or above is significant. Claimant’s treating physician noted that not only was the hearing loss severe, it was getting worse and would continue to do so. The doctor reported the higher-frequency sounds affected included those made by the letters “F,” “S,” and “Th.” The result is that one’s ability to perceive information during conversations is significantly diminished.
The doctor in his testimony noted that AMA guidelines don’t specifically spell out how higher-frequency hearing loss should be rated, but provided a wealth of existing research and applied those standards to his patient’s case. The doctor noted that while the methodology he used could result in an overestimation of hearing loss, it was widely considered more accurate than the method used by AMA, which failed to account entirely for high-frequency hearing loss.
Although an expert witness for employer testified 3000 hertz was to high to consider an impairment, another hearing expert testified that high-frequency noises – such as those experienced by employee – could result in hearing loss at levels higher than 3000 hertz, which could affect daily functions.
The state supreme court sided with plaintiff in finding adequate proof of his impairment rating had been provided, even absent clear guidelines in state statute or in the AMA.
If you have been injured at work, contact the Lee Law Offices at 800-887-1965.
Lambdin v. Goodyear Tire & Rubber Co., Jan. 29, 2015, Tennessee Suprem Court
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