&EPA
United States
Environmental Protection
Agency
Office of
Noise Abatement and Control
Washington, DC 20460
EPA 550/9-79-101
August 1979
Noise
Occupational
Hearing Loss
Workers Compensation
Under State and
Federal Programs.
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OCCUPATIONAL HEARING
LOSS
Workers Compensation Under
State & Federal Programs
By:
Richard E. Ginnold
Associate Professor
School for Workers
University of Wisconsin—Extension
SCHOOL FOR WORKERS
University of Wisconsin—Extension
701 Park-Regent Medical Building
One South Park Street
Madison, Wisconsin 53706
Prepared for:
U.S. Environmental Protection Agency
Office of Noise Abatement & Control
Washington, D.C. 20460
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TABLE OF CONTENTS
Page
LIST OF TABLES v
LIST OF FIGURES vi
PREFACE vii
EXECUTIVE SUMMARY viii
CHAPTER I — INTRODUCTION
Background 1
Purpose and Content of Report 3
Definition of Occupational Hearing Loss 3
Relating Loss of Hearing to Social Handicap 4
Brief History of Hearing Loss Compensation in the U.S.-Early 5
Worker’s Compensation Programs
CHAPTER II— CLAIMS ACTIVITY AND BENEFITS IN STATE
ANt) FEDERAL PROGRAMS 9
Obtaining Data on Hearing Loss Claims 9
Review of Benefit and Claims Data 10
Claims Trends 14
Estimate of Future Claims and Benefits 14
Gaps in Coverage of Hearing Loss Compensation 15
CHAPTER III — KEY FACTORS IN STATE AND FEDERAL PROGRAMS 21
Claims Procedures: An Overview 21
Differences Between State and Federal Procedures 24
Compensation Criterion and Considerations 25
Impact of Special Statutes 34
Trends in State Laws and Court Decisions 34
The Role of Unions in Claims Development 36
CHAPTER IV — SCIENTIFIC SUPPORT FOR COMPENSATION RULES 39
Recent Changes in the AAOO Formula 39
Hearing Loss Fonnula — Question of Adequacy 40
Aging Factor 43
Waiting Periods 44
Beyond Audiometric Testing 46
In
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TABLE OF CONTENTS continued)
CHAPTER V — FEDERAL HEARING LOSS COMPENSATION: AN
ANALYSIS OF CLAIMS ACTIVITY AND PROCEDURES 47
Federal Employee Compensation Program 47
Present FEC Program — Hearing Loss Task Force 53
Lengshore and Harbor Workers Program 62
CHAPTER VI — COMPARISON OF FEDERAL AND WISCONSIN CLAIMS 65
CHAPTER VII — CONCLUSIONS AND RECOMMENDATIONS 75
Study Conclusions 75
Recommendations 77
Administrative Considerations 79
APPENDIX 1 — HEARING LOSS STATUTES AND
ADMINISTRATIVE RULES 83
1-A Wisconsin Statute 4102.555) and Administrative Rule 80-25 83
1-B Selected Examples of State and Federal Statutory Provisions
on Hearing Loss 88
APPENDIX 2— HEARING LOSS CLAIM DOCUMENTS 91
2-A Claimant’s Application for Hearing — Wisconsin 91
2-B Claimant’s Medical Report — WC-16B — Allowed in Lieu of
Oral Testimony — Wisconsin 92
2-C Example of Full Medical and Audiological Evaluation — Wisconsin
(Dr. Meyer Fox) 94
2-D Report of Noise Survey on Hearing Loss Claim Taken by State
Insurance Fund — Oregon 97
APPENDIX 3— TERMINOLOGY GLOSSARY 103
Worker’s Compensation Terms 104
BIBLIOGRAPHY 107
Articles, Books and Reports 107
Statutes and Administrative Rules 112
Federal Court Cases and Board Decisions 112
State Court Cases and Board Decisions 113
lv
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LIST OF TABLES
Table Page
1 Numbers of Claims and Criteria for Hearing Loss Compensation Under
Federal and State Programs 11
2 Total State Benefits Paid, 1977 12
3 State and Federal Worker’s Compensation Rules Affecting Occupational
Hearing Loss — Positive and Negative Impact on Claims 26
4 Hearing Loss Formulas Used in U.S.-State and Federal Worker’s Corn
pensation Programs 29
5 Operations of FEC Hearing Loss Task Force, March 1976-March 31,
1978 54
6 Claims Denials-Federal Hearing Loss Task Force Case Files 54
7 Profile of FEC Approved Hearing Loss Claims Closed July, 1978
-March, 1978, Study of Hearing Loss Task Force Files 59
8 Federal Hearing Loss Claims by Occupation and Employer Hearing
Conservation Programs 61
9 Comparison of Wisconsin Hearing Loss Claims Under 1959 AAOO and
CHABA Criterion 1975-1977 66
10 Wisconsin Hearing Loss Claims Closed, 19754977, by Settlement Type
and Claim Characteristics 67
11 Comparison of Claimant Age for Wisconsin and Federal Hearing Loss
Claims 69
12 Comparison of the Severity of Federal and Wisconsin Hearing Loss
Claims for Selected Frequencies: 1,000, 2,000, 3,000 Hz 70
13 Comparison of the Severity of Federal and Wisconsin Hearing Loss
Claims using the average of 500, 1,000, and 2,000 Hz Hearing Levels 71
14 Comparison of Dollar Benefits for Wisconsin and Federal Hearing Loss
Claims 72
15 Comparison of Mean Hearing Loss for Wisconsin Hearing Loss Claims,
1975-77, by Formula Used 74
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LIST OF FIGURES
Figure Page
1 Occupational Hearing Loss Claims Paid in 1977 in State and Federal
Programs 13
2 Projected Claims and Benefits in State and Federal Hearing Loss Com-
pensation, 1977-1987 16
3 Comparison of U.S. Manufacturing Employment by State, 1976 17
4 Strength of U.S. Union Organization by State, 1974 19
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PREFACE
This report represents over a year of discussion and research in the compensation laws and
practices of 50 States and the federal government.
The report documents severe limitations in the adequacy of workers compensation for
noise induced hearing loss. The report also shows that the cost of hearing loss compensation
to employers and insurers is minute compared to other worker’s compensation costs and that
major justified improvements can and should be made if hearing loss compensation is to pro-
vide any financial incentive for noise control.
During the research, many hours were spent questioning worker’s compensation officials,
employer and union representatives, insurance companies and lawyers. The people contacted
volunteered numerous insights and facts which were invaluable to the report since published
data is lacking.
A few persons deserve a special vote of gratitude. Jack Shampan, Program Officer, En-
vironmental Protection Agency was not only helpful and understanding in matters dealing
with my contract, but provided detailed and constructive suggestions, and was a good soun-
ding board for ideas. Alice Suter, formerly of EPA and now of OSHA, has done the major re-
cent work in documenting the speech difficulties caused by high-frequency hearing loss and
gave me good advice and inspiration throughout. Robert Connelly, a Chicago audiologist,
also reviewed the report and helped me improve it.
Finally, thanks to the School for Workers office staff, particularly Marcia Lane who did
much interviewing and typed most of the report and Shlomo Cohen, my research assistant
who helped obtain the data.
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EXECUTIVE SUMMARY
The purpose of this report is to investigate workers compensation for permanent noise-
induced hearing loss in 50 States and the federal government. The report examines claims ac-
tivity, some of the main compensation rules, their scientific support and claims procedures.
Finally, the Federal Employee Compensation (FEC) program for hearing loss is studied.
Unfortunately, there is a lack of statistical data for most jurisdictions. Thus, much infor-
mation came from correspondence and telephone interviews with the compensation agencies,
insurers and lawyers in the States involved. A sample of claims was studied in Wisconsin and
the FEC program.
The main findings of the report are as follows:
1) While occupational hearing loss was found compensable in key cases 30 years ago and is
covered in most State statutes, only nine States compensate more than a token nwnber
of hearing loss claims. Over 70% of the country’s manulacturing workers live in 41
States which pay few or no claims.
2) Of the States compensating few or no claims, nine have statutory requirements of wage
loss or total medical impairment (almost impossible to obtain under current medical
standards). Another 32 States have few or no claims because of a variety of factors such
as six-month waiting periods before filing after leaving the noise environment (usually
after retirement), restrictive impairment formulas, severe filing deadlines, lack of
worker choice of physician, or deductions for aging.
3) The maximum benefit for total loss in both ears varies greatly between States, ranging
from $8,000 in New Jersey to $135,000 in the FEC program. The average maximum
benefit for the 50 States is $21,700. However, maximum benefit levels should not be
considered in isolation. Many States with high benefits pay few or no claims. In addi-
tion, the average award of around $2,000 - $2,500 is much lower than the maximum
benefit.
4) In 1977, the total number of claims paid has been estimated at 6,095 for the 50 States,
totalling approximately $13 million in payments. For the federal programs there were
2,300 estimated claims paid amounting to $17.6 million. It should be noted that the
numbers of claims have been rising at 20-30% per year in the highest claim States,
California and New Jersey, and in the FEC program.
5) A 10-year daims pn ection, assuming at a minimum 10% per year in ases in the filing of claims,
shows State claims of almost 16,000 and federal claims totalling nearly 6,000 in 1987.
The total claims bill in 1987 would be $156 million for both programs. The 10-year
benefits total for State and federal programs is projected at $835 million.
6) A review of the scientific evidence indicates that programs which have included high-
frequency loss criterion in their impairment formulas are more in line with current
research findings than those using the 1959 American Academy of Ophthalmology and
Otolaryngology (AAOO) formula. The States using high frequency formulas include five
“I”
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of the nine States with substantial claims, as well as the federal FEC program. In fact,
the 1979 AAOO formula which now includes 3,000 Hz is the same formula used for over
15 years by the State of California.
7) Other common program features which restrict claims but are not supported by research
are long waiting periods, severe hazardous noise definitions and deductions for aging.
8)’A review of the FEC program showed that it has received more claims than all the States
combined since 1970 and has developed a number of administrative problems in dealing
with them. Since the FEC program is a government funded program with no employer
rights to contest a claim, the agency has a burden of claims documentation and in-
vestigation which it was unable to meet until recently. A Hearing Loss Task Force, set
up by the agency two years ago, handles all hearing loss claims and does a thorough job
of making certain that claims are documented and valid. In addition, the agency has
standards which could serve as models for States with restrictive programs. These in-
elude an impairment formula which recognizes high frequency loss, no waiting period
and an ample time limit for filing a claim. Some administrative suggestions are made
for the FEC program.
9) Recommendations are made for future research, including a study of a Model Hearing
Loss Statute to incorporate new information on hearing impairment and experience with
various State statutes.
10) A large scale research program should be undertaken to improve our knowledge of the
social handicaps caused by hearing loss. The relationship between the percentage of
audiometric impairment and the speech discrimination and social difficulties faced by
the hearing impaired worker should be more definitely established. Such a program
would also assist in the determination of fair and proper benefit levels for worker’s com-
pensation and disability programs.
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CHAPTER I — INTRODUCTION
“Today, an unheralded abuse of one of the elementary senses granted by
Nature to man is on the loose. The noise produced by our modern industrial
machinery causes untold lose of hearing to thousands upon thousands of wage
earners. This shocking condition has not only been kept from the general
public, but it has also remained an enigma to the very people it victimizes, the
workers themselves. Industrial deafness, as a result of industrial noise, for the
most part is being met with silence by those responsible for creating it. Where
silence is not enough to still the protests of forge workerg, boilermakers, print-
ing pressmen, machinists, etc., then denial, scientific double talk and
legalistic hokum are the device of managerial protest. . . It staggers our sense
of justice that as many as 20 or 30 years of a worker’s lifetime can be encom-
passed in the disabling process of acquiring certain occupational diseases.
Who is to pay for these years? The worker (the victim) or the industry? In-
dustry says: The worker. We say: Industry . . . Compensation for total and
partial loss of hearing must be incorporated into all compensation statutes”
(Wood, 1953).
Background
For almost 300 years occupational hearing lose has been recognized as a
hazard of certain tr’ades like blacksmiths and boilermakers. Modern technology has extended
the risk to many other industries using presses, forging hammers, grinders, saws, internal
combustion motors or similar high-speed, high energy processes.
Yet, government, employers and the public have generally ignored the
problem until recently. There is a saying that if noise made the ears bleed, hearing loss would
be taken more seriously. Because it develops gradually and has few noticeable symptoms,
hearing loss is still demeaned with statements like: “Well, he doesn’t need to hear a pin
drop.” The hard fact is that occupational hearing lose may cause a complete change in the
worker’s social and work life. In one study of weavers (Kell, et al., 1971) with “slight” hear-
ing handicap by official U.S. medical criteria, the vast majority had trouble hearing in
public, talking with friends or strangers or over the phone. They had seriously restricted their
social lives and over 50% used lip-reading to aid understanding. Even when the hearing-
impaired worker can do his or her job, inability to communicate may still exclude the worker
from chances for promotion or job transfer.
Recent surveys indicate that a substantial portion of workers are faced with the hearing
loss problem. A University of Washington study (Diacher, 1975) found that hearing loss
made up 28% of the probable occupational disease cases found in a worker sample. More
than 10% of the workers sampled showed hearing loss. In a later publication, Quinn (1978)
found that almost 30% of an industrial worker population reported being exposed to noise on
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the job and over 4 0% of these thought it was a sizeable or great problem. In this survey, noise
was the third most serious hazard cited, ahead of 11 other areas including “dangerous
chemicals,” “dangerous tools, machinery” and other items.
For the first time in 1970, the newly formed federal Occupational Safety and Health Ad-
ministration (OSHA) set enforceable standards on work-place noise. Yet the federal noise
limit was set at 90 decibels (dBA) 5 for the 8-hour working day, a compromise standard
adopted from other regulations. The 90 dBA level would still result in impaired hearing for
several million workers, even if it were perfectly enforced (Kryter, 1975).
An 85 dBA OSHA noise standard has been delayed because of concern over
compliance costs. OSHA enforcement of the existing 90 dBA standard has been hampered by
employer challenges and adverse court decisions finding that engineering controls for noise
are not economically feasible. Many workers are still exposed to noise levels far above 90
dBA.
Thus, hazardous noise at work is still the rule, not the exception. Many
industrially exposed workers will continue to suffer occupational hearing impairment.
Because of this, worker’s compensation for hearing loss is an essential public policy. It repays
hearing-impaired workers in part for their work-related physical, social and economic han-
dicap. Compensation costs and the fear of future increases also give employers an important
incentve to invest funds to correct the noise problem.
In most States, employers and insurers have vigorously opposed worker’s
compensation for hearing impairment and have sponsored restrictive claims criterion and
procedures. Until recently, the total number of U.S. hearing loss claims and benefit totals
has been very small. However, at the federal level and in a few States, claims and benefits
are rising very rapidly. With growing worker awareness and pressure for compensation
reform, the trend will likely spread. The total compensation bill for occupational hearing loss
claims can be predicted at over $800 million in the next decade**, without counting
absenteeism, loss of employment potential and value of personal handicaps suffered by
hearing-impaired workers.
* A terminology glossary is included in Appendix 3.
** See Chapter II for a discussion of projected claims costs.
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Purpose and Content of Report
Due to the recent trends in claims and future liabilities, there is a
need to critically examine present State and federal laws, claims criterion, and claims and
benefits totals. A thorough scientific study of this area is important to help compensation ad-
ministrators review their own programs and give employers, insurers, government agencies,
unions and others a factual basis for proposing changes. Hopefully, this report and later
studies will serve this need.
The report is composed of seven chapters and three appendices. Chapter I
gives a background of the issues and a short history of hearing loss compensation in the U.S.
Chapter II documents a study of claims activity and benefits in various States.
Chapter III examines the basic elements of a worker’s compensation program for hearing
loss and compares claims procedures between State and federal programs.
Chapter IV reviews the latest scientific information on issues like waiting periods, hearing
loss formula, low and high fences (beginning and ending point of impairment), aging and
other non-occupational factors.
Chapter V reviews hearing loss compensation at the federal level, including a detailed
study of the Federal Employees Compensation (FEC) program which has experienced many
more claims than all other jurisdictions combined.
Chapter VI is a brief study of federal and Wisconsin claims.
Chapter VII includes conclusions and recommendations for research and government
policy.
Appendix 1 contains selected examples of hearing loss statutes and administrative rules.
Appendix 2 contains hearing loss claim documents.
Finally, a terminology glossary is included in Appendix 3.
Definition of Occupational Hearing Loss
This study is concerned with the type of permanent occupational hearing loss caused by
long exposure to noise. Hearing loss is measured medically by an audiometric examination
which tests the person’s ability to hear pure tones at defined frequencies and decibel levels.
Tests of speech discrimination (ability to repeat spoken words delivered at certain speech
levels) are also used. It is assumed that performance on these tests is evidence of communica-
tion ability in real life. The typical pattern of loss begins with a drop in the hearing level in the
high frequencies at 3,000 Hz, 4,000 Hz, and 6,000 Hz spreading later to lower frequencies.
This type of loss is usually known as sensorineural hearing loss, because the noise exposure
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damages the nerve cells of the inner ear, causing them to swell, distort and eventually die.
This causes a permanent decrease of hearing sensitivity known as noise-induced permanent
threshold shift. Sensorineural loss cannot be medically corrected. Hearing aids, though in
some cases useful, do not provide substantial relief.
Sensorineural hearing loss is distinguished from conductive hearing loss where a perforated
ear drum, fluid in the middle ear or damage to the middle ear bones prevent Sound waves
from reaching the inner ear. Conductive hearing loss may occur from explosions, middle ear
infection, sudden pressure changes (aero-otitis), or blows to the head. Conductive hearing
• loss can usually be reduced or eliminated by medical treatment or surgical methods and can
compensated for with a hearing aid.
Relating Loss of Hearing to Social Handicap
One of the persistent problems in making policy decisions on noise control in the workplace
and hearing loss compensation is the difficulty of relating pure tone hearing impairment to
the impact on communication ability and the social and economic functioning of the affected
person. What does the audiometric test result mean for the person’s understanding, listening,
and ability to converse? How does this in turn affect his or her family life, social activity, or
job opportunities? This problem of relating impairment to disability is somewhat similar to
other occupational diseases. For physical injuries like amputations, the medical impairment
can be defined with precision - bone loss, numbness, loss of strength. Studies have been done
to relate the medical factors to work limitations, loss of earning capacity and impact on
private life. It is also possible to grade the severity of such injuries in a fairly uniform manner.
However, for hearing impairment (as well as lung disease and degenerative conditions such
as back problems), there is a lack of agreed measures, both of the medical impairment and
the impact on communication ability, work, and social life. Chapter IV will discuss the
limitations of audiometric testing in measuring communication ability and scientific
disagreements over the importance that should be attached to the speech discrimination pro-
blems caused by high-frequency hearing loss.
Also, there is little research that indicates how given problems affect personal, social, or
economic life. As a result, it has been difficult to determine and defend fair and proper hear-
ing loss compensation benefits.
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Brief History of Hearing Loss Compensation in the U.S.
Early Worker’s Compensation Programs
Most U.S. worker’s compensation programs began between 1911 and 1920 in response to
employer pressures to free themselves from high-cost negligence suits and worker desperation
to secure even minimal guaranteed benefits. In return for a ban on court suits, employers
agreed to minimum, compulsory compensation benefits for work injuries. The laws passed
were quite restrictive and focused mainly on replacing wages lost due to temporary injuries or
severe permanent disability. There were “scheduled” permanent benefits for losses of certain
body parts or functions, including hearing. Infrequent cases of traumatic hearing loss due to
explosions and other accidents were paid for under the schedule.
However, most States had little or no coverage for occupational disease. The few occupa-
tional diseases which were compensated were only paid on the basis of proven loss of earning
capacity; e.g., silicosis cases during the 1930s. There is no record of claims for occupational
hearing loss. Even in Wisconsin, where occupational disease has been covered in the law
since 1919, the first claim for occupational hearing loss was not filed until the 1940s (Ginnold,
1974).
Part of the problem was the difficulty in measuring impairment. Audiometric techniques
were not developed until the late 1920s, and the first accepted impairment formula, the
American Medical Association (AMA) formula, was not approved until 1942 (revised in
1947). This formula used a weighted average of the 500, 1,000, 2,000, and 4,000 Hz frequen-
cies. The inclusion of 4,000 Hz was a recognition of the value of high frequency hearing for
“personal efficiency in daily living” (Fowler, 1947).
World War II and After
During the Second World War, the nation’s shipbuilding and other metal industries hired
hundreds of thousands of new workers. With a 24-hour per day, 7-day per week, war-time
production schedule in over-crowded facilities, noisy conditions abounded. Worker
awareness of occupational health was gradually increasing and many noise-exposed workers
filed hearing loss claims after the war. In one 1948 New York case (Slawinski vs. J. H.
Williams and Co.), the State Supreme Court awarded benefits over employer pleas for a
“wage loss principle.” They approved the claim as a “scheduled” injury and stated that
“wage loss” was not required to collect benefits. It is not known how many additional claims
were paid, but in 1951 the New York Journal American newspaper reported that 232
shipyard workers from Bethlehem Steel’s Hoboken Yard in New York had filed a $5,000,000
suit in county court, alleging that employer negligence had caused occupational deafness
(New York Journal American, 1951).
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New York and Wthconsin Rules
Soon after the New York Supreme Court ruling and the subsequent awarding of claims, a
medical advisory committee was appointed by the New York Worker’s Compensation Com-
mission to propose rules for hearing loss compensation. In 1953 they issued their report (New
York Workmen’s Compensation Board, 1953), with recommendations for the following: 1
six month waiting period away from noisy employment before filing; 2) a hearing loss formula
averaging the frequencies of 500, 1,000 and 2,000 Hz with a low fence at 25 dB (re:
ANSI-1969); and 3) a definition of noisy employment. These provisions were later adopted as
rules of the New York Board and have been in effect almost without change to the present
date.
Around the time of the New York cases, hearing loss claims began to be filed in Wisconsin
by members of the Boilermakers Union and their attorneys. A Green Bay case eventually
became a landmark decision in the Wisconsin Supreme Court, but the major claims pressure
came from workers at the huge Ladish Forge Company in the Milwaukee suburb of Cudahy,
where thousands of workers labored under extremely noisy conditions (Ginnold, 1974).
Veterans of the period report that hammermen operating huge 30 ton forging hammers would
frequently run in all directions, frantically holding their ears to escape the piercing shriek of
steam from blown gaskets. Shear operators made as many as 16 cuts a minute on 5-inch steel,
cutting the steel like butter with a deafening sharp “thwack.” The abrasive cutoff wheels
whined and whirred at an extreme level. Many workers in these departments who began
work at 18 years of age had lost much of their hearing before the age of 30 years.
In response to union requests, a young labor attorney filed several hearing loss claims. The
first claim filed was paid without challenge by the Ladish insurance carrier. However, the
company balked when 100 additional claims were filed. The company then began organizing
a movement among industry for a more restrictive law. Employers predicted that they would
have to pay hundreds of millions of dollars in compensation claims and even threatened to
move to other States unless something was done. The top Wisconsin union groups, faced with
economic blackmail, agreed with employers in 1953 to a moratorium on claims. Ironically,
soon after this limitation became law, the Wisconsin Supreme Court affirmed compensation
in the Green Bay test case (Green Bay Drop Forge vs. Wisconsin Industrial Commission and
Albert Wocjik, 1953). Similar to New York, a medical advisory committee was established
and their recommendations for a six-month waiting period and a new compensation formula
were almost identical to those of New York. These were included in the law in 1956.
AAOO/AMA Formula
The New York and Wisconsin debates over hearing loss compensation apparently were the
basis for the later American Academy of Ophthalmology and Otolaryngology (AAOO) hear-
ing loss formula accepted by the American Medical Association (AMA) in 1959 to replace the
1947 AMA formula (AMA Committee, 1961). The AAOO formula averaged hearing levels at
500, 1,000, and 2,000 Hz with the low fence at 25 dB (re: ANSI- 19691. It did not include the
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six-month waiting period, though some of the AAOO leadership endorsed the six-month wait
in their own States. When the AMA Committee (1961) adopted the AAOO formula in 1959, it
stated that “hearing impairment should be evaluated in terms of ability to hear everyday
speech under everyday conditions.” It then defined hearing of everyday speech as the “ability
to hear sentences and repeat them correctly in a quiet environment.” Because of the limita-
tions of speech testing at that time, hearing loss for speech was measured by a pure-tone
audiogram. The AAOO formula excluded consideration of high-frequency hearing loss or
other clinical measures of hearing impairment; e.g., speech discrimination tests, evaluation
of tinnitus, recruitment, and others.
From 1959 on, a number of States adopted the AAOO formula along with other restric-
tions, including the six-month waiting period. Some of these States are Missouri, Rhode
Island, Maine, Utah, North Carolina, Georgia, New Hampshire, Maryland, and Montana.
Over 20 other States left the issue up to treating physicians, which usually meant use of the
AAOO formula. The six-month waiting period in effect, excludes claims until retirement and
the AAOO formula excludes the frequencies most likely to be affected by occupational hear-
ing loss. This combination, along with low benefits, statutes of limitations, physicians chosen
by insurance carriers and low worker awareness, has resulted in an absence of hearing loss
claims. Beyond this, in some States occupational hearing loss has always been virtually non-
compensable, such as in Pennsylvania, Michigan, Ohio, and until recently Illinois.
Even after many States had adopted the new, restrictive AAOO formula, the issue was not
dead. In the two key states, New York and Wisconsin, the new rules had been put through
partially through scare tactics and economic pressures by employers, without a real scientific
basis. In Wisconsin the principal medical expert proposing the AAOO formula was
Dr. Meyer Fox, Medical Consultant for Liberty Mutual Insurance Company and Medical
Director for Ladish Forge Company, which was faced with over 1,000 hearing loss claims.
Other AAOO committee members were close to major employers and insurance carriers.
There still has been little supportive scientific or medical documentation to justify the depar-
ture from the original 1947 AMA formula.
Signs of Reform
After the mid-1960s, awareness of noise hazards and occupational hearing loss greatly in-
creased. This led to renewed pressure from labor and other groups to control workplace noise
and improve hearing loss compensation. Some States had never accepted the restrictive
AAOO recommendations.* New Jersey continued to use the 1947 AMA formula as well ss
other high-frequency formulas. In 1961, California adopted a compromise, adding the 3,000
Hz frequency to the AAOO formula. Neither State imposed administrative obstacles such as
the six-month rule. These States now have a relatively high volume of hearing loss claims.
* See Chapter III and Table 1 for a discussion of specific state hearing loss provisions.
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The most important development was the adoption of guidelines for compensating high
frequency impairment by the Federal Employees Compensation (FEC) program. This led to
a major increase in federal hearing loss claims. The FEC program covers all federal
employees, including noise exposed airbase and shipyard workers. In 1969, the FEC began
using a formula averaging 1,000, 2,000, and 4,000 Hz. In 1972, the formula was changed to
replace 4,000 Hz with 3,000 Hz, in line with recommendations published in a criteria docu-
ment by the National Institute for Occupational Safety and Health (NIOSH, 1972). The
FEC program* has received over 30,000 hearing loss claims since 1969 and has made awards
in approximately 25,000 cases.
In response to the NIOSH study and other research, the AAOO recently (McCurdy, 1979)
revised its formula by adding 3,000 Hz - an averaging of 500, 1,000, 2,000, and 3,000 Hz with
a beginning impairment at 25 dB (re: ANSI - 1969). A few States have also introduced
reforms such as reduced waiting periods, and compensation for high frequency loss. Some
States are also removing requirements of economic loss.
On the other hand, a recent federal audit (General Accounting Office, 1978) has recom-
mended that the federal programs return to the 1959 AAOO formula and some States are con-
sidering special restrictive statutes. Because of rapidly rising claims and considerable new in-
formation on hearing impairment, there is a growing debate over proper compensation rules
and benefits for occupational hearing loss. A detailed review of compensation rules and a
federal auditors report are included in Chapters III and V.
* See Chapter V for a detailed review of the FEC program.
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CHAPTER II— CLAIMS ACTIVITY AND BENEFITS IN STATE AND FEDERAL
PROGRAMS
Obtaining Data on Hearing Loss Claims
Most worker’s compensation agencies have devoted few resources to record-keeping or
statistics (Compendium on Workmen’s Compensation, 1973). The majority of States collect
employer reports of injury but do not have data systems for retrieving case records as the
claim is acted on and compensated or denied. Thus, only a few States publish data on com-
pensable injuries and fewer still release even general data on closed claims that are paid or
denied.
The situation is even more bleak for occupational diseases like hearing loss. Because of
legal obstacles, many more claims are filed than are actually paid, but the data system does
not usually distinguish this. Closed claim figures rarely have a good injury breakdown. Even
where data are collected, the coding for different injuries may not distinguish between con-
ductive hearing loss due to an accident and a sensorineural hearing loss due to noise exposure.
In some cases temporary compensation for ear infections is lumped with permanent partial
disability awards for occupational hearing loss. In many States with few or no claims for
noise-induced hearing loss, there are frequent cases of permanent hearing loss due to explo-
sions. This study is not concerned with those traumatic cases and they have been excluded
from the statistics. For example, in Oklahoma there are over 100 traumatic hearing loss cases
annually, most from the oil industry, but less than 10 claims are paid for sensorineural hear-
ing loss due to long term exposure to occupational noise. Finally, because many States do not
closely monitor claims-handling by insurers, many permanent claims are informally settled
(compromised) with no results recorded.
In spite of the above problems, some States did provide statistical reports which gave firm
figures on hearing loss claims paid. Wisconsin, New York, Washington, Oregon, Colorado,
North Carolina, South Carolina, and Georgia are examples. Most of these States are among
those participating in the Bureau of Labor Statistics-sponsored Supplementary Data System
(SDS). This system is upgrading State worker’s compensation data providing a coding system
which allows some tabulation of noise-induced permanent hearing loss cases.
In the case of New Jersey and California, States with large numbers of claims, there are no
detailed reports on claims paid. However, in New Jersey, the State with the largest number of
claims, the figures used in this report were based on a hand sampling of claims by the
agency’s statistical division after a telephone discussion with the director. In California, three
sets of State statistics are kept, none of which show the number of claims paid. With the help
of agency personnel, estimates were made based on initial claims filed with the appeal board.
In both these cases, the claims estimate made should be very close to the true figure.
In a number of other States, no figures existed on the number of hearing loss claims.
Telephone conversations with examiners and office personnel confirmed the existence of
9
-------
few or no claims. In most States, agency responses were cross-checked with attorneys, in-
surers, or union representatives. In a small number of cases where estimates were necessary,
the claims figure is shown as a maximum. This maximum is felt to be a reliable estimate and
was checked with key agency personnel.
Finally, letters were written to almost every State concerning the compensability of occupa-
tional hearing loss. Follow-up phone calls were made to each State. Based on the information
obtained, some States were classified as partially or totally denying compensation to hearing
loss claimants.
Review of Benefit and Claims Data
The first two columns of Table 1 show the numbers of hearing loss claims paid in 1977 and
maximum benefits (the remaining data in this summary table will be discussed in Chapter
III ). For instance, in California, with 1,925 claims, there is no figure for loss in a single ear,
but total loss of hearing in both ears (100% impairment under the California formula) would
entitle the claimant to $21,770 (based on 311 weeks of compensation at $70/week). Looking
at maximum benefits, the States vary widely. The average maximum benefit for total loss in
both ears is $21,700 for all States. Among the nine States compensating the most claims, four
States exceed this figure and five are below it. The FEC program has paid more claims than
almost any State and also has the highest maximum benefit for total binaural hearing loss,
amounting to $135,600. However, New Jersey compensates the highest number of claims
among the States and has the lowest maximum benefits. On the other hand, States which
have legal bars to hearing loss compensation, like Pennsylvania and New Mexico, have some
of the highest maximum benefits.
The above simply points out that States cannot be compared by their relative benefit levels
since there is no real relationship between claims awarded and benefit maximums. In fact,
there may be little insurer resistance to increasing maximum benefits, where there are few
claims due to other restrictions.*
Concerning actual claims, Table 1 shows that the two federal hearing loss compensation
programs, even after a 1976 change in FEC administration, still compensate well over 2,000
claims annually, more than any State except New Jersey. Counting the 1,800 FEC claims
amounting to $14 million and a minimum of 500 Longshore and Harbor worker claims with
awards around $3-4 million, federal claims total $1 7-18 million. This exceeds the total for
State claims of $13 million shown in Table 2.
* See Chapter III.
10
-------
TABLE 1 Numbers of Claims and Criteria for Hearing Loss Compensation under Federal and State Programs
FOOTNOTES
1 Some state figures are maximums which may include a few
traumatic treating lOSS claims
2 Staies usually require medical proof or prescription for hearing
aid
3 1n most cases, provided by Vocational Rehabilitation agency
BWhere allowed, either preemployrnent audiogram or medical
evidence requited. Where deduction is made, it is determined
by subtracting the previous rating torn current ratIng.
t For states not deducting, preexisting loss is usually couered
under second injury lund
ecalifornia rormuia in eftect since r963. basis for r919 A000
formula.
T Conrpensation is generally decreased t or ages below 39 and
increased for ages above 39 also adlusted for lype of
employment
0 Award usually made on uncorrected audiogram since correclion
would also commit employer to lifetime purchase and main-
tenance if hearing aid
t No tived maximum, based on individual case
10 No maximum, all permanenr disabilily benefits based on
lifetime replacenient of wage lost
No formula, courts have allowed speech discrimination
scores, in addition to auaiometric tests.
12 Aoerage of treqoencies 5004K with 25 decibel low fence
13 ln t975, Wisconsin eliminated the Statute of Limitations tot
occupational diseases Disease claims barred by the time limit
for injuries are paid from a special state fund
SOURCE NOTE
Data from telephone survey of federal and state compensation
agencies and state statistical reports In a few cases. other
published sources were used (Barth. Foe, National Commission on
State Workmens Compensation Laws, and U S Chamber of
Commerce I New Jersey. California. and Washington figures are
close estimates from available raw data Figures opdated to
October t978 or later
Abbreviations
D = Discovery Rale (time limit begins when
worker becomes aware ol disability;
otherwISe, usually Starts wIth date 01 injury)
= Initial Hearing Aid
ME = Medical Evaluation (impairment percent de
termined by plnysiciav, decision oe degree
of bearing impairment left to individual
medical opinion, which usually means the
A.A0O formula)
N = No
NA = Not Applicable
NR = No Response
P = Possible
PPD = Permanent Partial Disability
P11 = Permanent Total Impairment
P10 = Permanent Total Disability
P = Replacement Hearing Aid
Und = Undecided
Unk = Unknown
VA = Vocational Rehabilitation
WC = Worker’s Compenoatiov
Y = Yes
.
wC
JURISDICTION
•i
i.e
l
*
m
m
e
w
s
Z
•
2
= i
!
u
S
‘ .‘
.
,•• ‘i
F.d.Emp.
Program
Longshore/
Harbor
YES
YES
1,800 $135,600 D.3yrs.
500 73,444 0-3 yrs.
N
N
Employee
Employee
N
N
NIOSH
Und
N
N
I
Y
V
R
Y
V
WC
WC
N
N
P
Y
N
N
Mabama
PJaska
Arizona
Arkansas
California
YES
YES
YES
YES
YES
20
4
10
3
1,925
20,854 1 yr.
28,000 0-2 yes.
32,999 1 yr.
13,125 2pm.
21,770 0-1 yr.
link
N
N
link
Y
Carrier
Employs.
Employee
Carrier
Employs.
N
N
N
N
N
ME
ME
‘59 MOO
ME
‘79 MOO
N
N
N
N
N 7
Y
V
Y
V
V
N
V
V
V
V
WC
WC
WC
WC
WC
N
N
N
N
P’
P
P
Y
Y
P
V
N
V
N
V
Colorado
Connecticut
Delaware
Rorida
Georgia
YES
YES
YES
NO-PPD
YES
6
50
5
0
11
11,676 3-5yrs.
22,932 0-1 ye.
13,125 0-1 yr.
18,900 0-2 pro.
16500 1 yr.
N
V
N
N
N
Carrier
Employs.
Employs.
Carrier
Carrier
N
N
N
N
65105.
ME
‘59 MOO
ME
ME
‘59 MOO
N
N
N
N
N
V
V
V
V
V
N
P
V
V
V
WC
WC
WC
WC
WC
N
N
N
N
N
V
N
Y
V
V
Y
N
V
Y
V
Hawaii
Idaho
Olinois
Indiana
Iowa
YES
YES
YES
NO-PPD
YES
5
3
0
0
10
37,800 D-l-2yrs.
18,576 lye.
48,232 3yeo.
15,000 2-3yrs.
42700 y
V
N
N
link
Y
Employee
Carrier
Employee
Circler
Circler
N
N
N
N
N
‘59 MOO
ME
ME
ME
ME
N
N
NH
N
P
Y
V
HR
V
V
P
V
NH
N
V
WC
WC
HR
WC
WC
N
N
NH
N
N
P
V
NH
Y
V
N
V
Und
V
Y
Kansas
Kentucky
Louisiana
Mains
YES
YES
NO-PPO
YES
6
2
0
10
14,197 lye.
17,472 l-3yes.
a 0-4mos.
46,344 2 pro.
N
N
Unk
link
Circler N ‘47 AMA
Employs. Smas. ‘59U00
Carrier N ME
Employs. I mo. ‘59 MOO
N
V
NR
N
V
V
NH
P
V
N
NH
P
WC
WC
HR
WC
N
N
NR
N
V
N
NH
V
N
Y
N
V
Maryland YES
MasiadeusMix NO-PTI
Michigan NO-PPD
Minnesota YES
Mississippi YES
Missouri YES
28
0
0
50
2
28
17,000 jy
12,000 0-lye.
° 0-4 mos.
33.490 0-3 yes.
13,650 0-2 yes.
15,120 0-1 yr.
link
N
N
N
N
N
Employee Smos. ‘59 MOO
Employee N ME
Carrier N ME
Employs. N ME”
Carrier N ME
Carrier Smos. ‘59 MOO
V
N
N
N
N
Y
V
P
V
V
Y
N
V
P
V
V
V
N
WC
WC
WC
WC
WC
NA
N
NA
N
N
N
N
V
P
V
V
V
N
V
N
Y
N
V
Y
Montana
Nebraska
Nevada
N. Hampshire
N. Jersey
YES
YES
NO-PTD
YES
YES
5
0
0
0
3000
1’L U .)-30 days
15,500 D-Gmss.
4,305 D-90 days
38,520 2pm.
8,000
N
N
N
N
V
Employee
Employee
Employs.
Carrier
Carrier
6 mos.
N
N
6mos.
N
‘59 MOO
‘S9MOO
‘79 MOO
‘SgAAOO
‘47 AMA
V
N
N
P
P
V
V
Y
V
V
Y
Y
Y
V
P
WC
WC
WC
WC
YR
N
N
N
N
N
V
N
P
V
N
Y
N
V
N
N
N. Mexico
New York
N. Carolina
N. Dakota
Ohio
NO-PTD
YES
YES
YES
NO-PlO
0
366
17
5
0
25,869 lye.
15,750 D-90/2yrs
25,200 D-2yrs
8,000 lye.
13,500 Smos.
Unk
Y
N
N
V
Carrier ldays ME
Panel fimos. ‘S9AAOO
Carrier Smos. ‘59 MOO
Employee N ME
Employy N ME
NA
N
N
N
N
NA
V
V
V
NA
NA
V
N
V
NA
NA
WC
WC
WC
.NA
NA
N
N
N
N
NA
P
V
V
Y
V
Y
V
N
Y
Oklahoma YES
Oregon YES
Pennsylvania NO-PTI
iodels1and YES
So. Carolina YES
10
48
0
10
1
18,000 D-3-l8mo
16,320 O-Smos.
55,380 120 days
9,000 D-2yrs.
28,380 0-2 yes.
V
N
link
N
N
Carrier N ME
Employs. N 500-4K’ 2
Carrier N ME
Employee 6mos. ‘59M00
Carrier N ME
N
N
N
P
P
V
Y
N
V
V
P
P
N
V
N
WC
WC
NA
WC
WC
N
N
N
N
N
Y
V
N
V
V
N
‘.
Y
V
Y
So. Dakota
Tennessee
Texas
Utah
YES
YES
YES
YES
0
6
2
0
23,250 Zyes.
15,000 1-3 yes.
13,650 bmos,
13,100 0-1 ye.
Unk
N
Y
N
Carrier N
Panel N
Carrier N
Carrier 6mos.
ME
ME
‘59 MOO
ME
N
N
N
V
V
V
V
V
V
N
V
N
INC
INC
WC
INC
V
N
N
N
V
N
V
N
Y
N
Y
V
Vermont
VIrginia
Wesftington
W.Virginia
OOsconsin
Wyoming
YES
YES
YES
YES
YES
YES
3
8
240
42
149
5
38,915 lye.
18,700 0-2 yes.
14,400 0-lye.
33,480 D-3yrs.
21,450 None’ 3
11,262 D-l/3yr$
N
N
Y
N
Y
N
Employee N
Panel N
Employee N
Employee N
Employee 2moa.
Employee N
ME
‘59 MOO
‘59 MOO
‘59MOO
CHABA
ME
N
N
N
N
V
P
V
N
V
Y
V
V
V
N
V
V
V
V
INC
NA
INC
INC
INC
INC
N
N
N
N
N
N
V V
Y Y
NH Y
V N
V Y
V N
-------
Among the nine States compensating more than a token number of claims, New Jersey and
California lead the way with 3,000 and 1,925 claims respectively. This is not surprising
because as will be discussed in Chapter III, both States compensate high frequency hearing
loss and have no waiting periods or serious restrictions on claims. The total for all nine high
claim States is 5,870 claims. If we add a maximum of 225 claims from the remaining States
which pay few or no claims, the total for all States is 6,095. It is striking to note that 41 out of
the 50 States have paid few or no claims.
Total State benefits for hearing impairment of $13 million in 1977 was less than 3 tenths of
1 percent of the 56 billion total U.S. worker’s compensation bill. Thus, even the rapidly ris-
ing dollar volume for occupational hearing loss claims is still a minute factor in total worker’s
compensation costs.
Figure 1 is a map comparing States by claims activity and compensability of hearing loss.
As shown, only the Pacific Coast States, and Wisconsin, Minnesota, New York, Connecticut
and New Jersey compensate more than a few claims. Thirty-two States comprising the Plains
and Mountain States and most of the South have few or zero claims even where they allow
hearing loss compensation. Finally, nine States make occupational hearing loss virtually non-
compensable by special requirements to be discussed in Chapter III.
Table 2
Total State Benefits Paid, 1977
Number of Claims Average Benefits Total Benefits 5
New Jersey 3,000 1,500’ 4,500,000
California 1,925 3,0002 5,775,000
New York 366 2,485 910,000
Washington 244) 2,300 552,000
Wisconsin 149 2,300 342,700
All Other 415 2,300 931,500
Totals 6,095 $13,011,200
Source Notes: From Table 1
‘Average of nine claim sample from attorney files plus agency estimate.
2 State estimate.
3 Actual figures.
4 Using Wisconsin average since some State claim figures unavailable.
5 Calculated from claims number and average benefits.
12
-------
- —
Oi
Figure 1. Occupational Hearing Loss Claims Paid In 1977 For U.S.
State & Federal Programs
MINN
50
MO
; J 3 ,000
js
N oc
FEC
I)
o 200 400
Total U.S. Claims Paid 1977
State 6,085
Federal 2,300
Noncompensable
N,. 0 Claims
HAWAII • I 1-25 Claims
I 26-50 Claims
I Above 50 Claims
LES 200 J FEC: Federal Employee Compensation Act
— — - LSHWA: Longshore & Harbor Workers Compensation Act
a.
MILES
D ?c :
Compensable
4 oil
-------
Claims Trends
The past few years have seen claim rises in several key States. From 1970 to 1977, claims
awarded in California rose from around 600 to 1,925. New Jersey claims paid have risen from
an estimated 1,500 five years ago to 3,000 today. In New York, State figures show claims in-
creasing from 165 in 1972 to 366 in 1976. Wisconsin claims paid rose from 80 in 1970 to 149 in
1977. Federal claims paid jumpeI from 266 in 1966 to a total estimated at over 25,000 paid
from 1969 to 1976.
Are past trends a reliable indication of the future? The recent federal increases might be in-
terpreted as a temporary peak, due to growing worker awareness of compensation rights and
more liberal compensation provisions. The rise has been so rapid that it will almost certainly
begin to level off as World War II and Korean War shipbuilders retire. The exposed work
force is declining and employer hearing conservation and noise control rograms are increas-
ing. Finally, federal claims procedures have tightened considerably. The States face sharp in-
creases in the number of compensation claims as they reduce the unjust restrictiveness of their
policies, and technical guidance is provided to improve State compensation statutes. In the
next few years, the active States should see a continued rise in claims and some of the States
with few claims will face serious pressures to liberalize laws and policies.
Estimate of Future Claims and Benefits
Number of Potential Claimants
It is difficult to project future claims because the experts differ both on the extent of hear-
ing loss risk, as well as how much hearing loss is needed before hearing impairment begins.
The definition to be used here is the NIOSH criterion for beginning impairment of 25 dB (re:
ANSI - 1969) averaged over 1,000, 2,000 and 3,000 Hz. This is more liberal than present
compensation formulas in most States. Yet the trend is towards compensating high frequency
loss.
Using data compiled by Robinson (1971) and Baughn (1973), Kryter (1975) indicates that
from 50-78 percent of workers exposed to noise levels averaging 90 CiBA over a 44) year
worklife, will experience a loss of hearing sensitivity exceeding the NIOSH criterion for
beginning impairment. Approximately 30 percent more of the workers exposed to noise at
this level will experience a handicapping hearing loss than will a non-noise exposed popula-
tion at the age of 65. Thus, there is a 30 percent increase in risk due to the occupational noise
exposure.
Other NIOSH studies (NIOSH, 1975) indicate that almost 23 million workers are
employed in industries expected to have hazardous noise levels, of which 3.3 million, or 15%
of the total, are exposed to noise levels above 90 dBA. Assuming a 44) year worklife cycle, ap-
proximately 83,000 of these workers reach retirement age each year. Assuming a conservative
risk estimate of 30 percent, the number of potential claims would increase to an annual figure
of 25,000. This new figure is more than a four fold increase over the 1977 claims paid figure of
14
-------
6,000. Thus, in spite of improvements in noise oontrol and reduction in the number of workers exposed
through automation, there is room for major increases in claims activity as State programs
become less restrictive. Inclusion of workers exposed to levels below 90 dBA would sizably increase
this estimate.
On the federal side, a recent Environmental Protection Agency (EPA) survey (Glenn,
1977) obtained responses from 1,699 Federal facilities classed as having the greatest potential
for occupational noise problems. These establishments, mainly shipyards, air bases,
mechanical shops, and other metalworking shops, employed 841,000 potentially noise exposed
workers. Due to the limited coverage of the EPA study, the estimated number of noise expos-
ed workers is probably conservative. If a 30 year federal retirement cycle is applied, 28,000 of
these employees can be assumed to retire each year. Assuming that 30 percent of the retirees
would suffer a compensable hearing impairment, 8,4.00 would be eligible to file for compensa-
tion annually. This number is far above the present federal level of 2,300 compensation
awards for noise induced hearing loss. Since we do not know the actual employee exposures
from the EPA federal facilities study, even the projections in Figure 2 may well be below
the real potential.
Figure 2 indicates a projection of federal and State claims over the next decade. Actual
figures for 1977 are used as a benchmark and two assumptions are made:
1. A seven percent annual cost-of-living increase in benefit levels;
2. A ten percent annual increase in numbers of claims.
Both of these assumptions seem somewhat conservative, given more rapid claims increases in
recent years and as shown, the number of potential claimants employed in both the private
and public sector exposed to hazardous noise levels.
As the figure illustrates, federal claims may be expected to rise from a present total of 2,300
to 6,000 by 1987 while State claims go from 6,095 to 15,809. Benefit totals also rise quickly
and by 1987, annual State benefits should be $66 million compared to almost $90 million for
federal claims. Over the decade, total benefits are estimated at $480 million for the federal
program and $356 million for the State programs, for a grand ten year total of $836 million
for all claims.
Gaps in Coverage of Hearing Loss Compensation
The large number of States with few or zero claims shows that a majority of U.S. workers
have virtually no hearing loss compensation rights, or at least have not learned how to exer-
cise them. Figure 3 is a comparison of manufacturing employment State-by-State which
highlights this point. The figures on manufacturing employment are taken as a rough in-
dicator of the employee risk of hearing loss.
‘ S
-------
STATE AND FEDERAL CLAIMS 1977-87
/
/
aI
Yea . 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987
CUMULATIVE CLAIMS 1977-87
STATE 106,852
FEDERAL 40,315
In Thousand
OoU , s ,s
94,000
88,000
82,000
76.000
70,000
64.000
58,000
62,0CC
46,000
40,000
34,000
28.000
22000
16,000
10.000
STATE AND FEDERAL BENEFiTS 1977-87
Years 1977 1978 1979 1980 1981 1982 5983 1984 1985 1086 1987
CUMULATIVE BENEFITS 1977-87
STATE S 355.538.623
FEDERAL $480187.0 00
r
Figure 2 Projected Claims and Benefits in State and Federal
Hearing Loss Compensation, 1977 - 87
Norn5 ,
of
16098
15,000
14,000
13,000
12,000
11,000
10,000
9,000
8,000
7,000
6,000
5,000
4.000
3,000
2,000
‘d 1
—.
. —
CS
—
w
late
So,rce CacuLafed b author
-------
FIGURE 3
Comparison of U.S. Manufacturing Employment by State, 1976
0 200 000 400000 600.000 800 000 1000000 1200 000 .400 000 1 640000 800.000 2000.000
I I I I I I I
Florida
Indiana
Louisiana
Moon
Q Michigan
Necada I
Ne* Mexico •
Ohiu
Z Pennsyloania
SUBTOTAL— 5 5 million Percent of Total U.S. —29.1
AlabOma
dianka I
Arizona
Arkannan
Colorado
DelOware
Gs rg ia
Hawaii I
Idobo
00 _________
Ill inoi n
tonal
001118
Kentucky
Maine
Muryt and
Niooisnittpi
LI. Mlotoarl
I Møntlna U
N.blo*ko
N. Hlnrpohlrl
N. Coroilna
Pd. Dakota I
Oklahoma
o., Rhode bland
So. Carolina
So, Deketa I
T.no•I 1..
Texan
Utah
Vermont U
VIrginIa
Wyoming I
SUBTOTAL — 1.7 mIOlon P rc.ntot Tout U.S. — 40.1
C O O Calilocnio
Connecticut
Minnenota
New Jertey
04mw YOlk
OTagen
m WithtngtOO
Went Vlrgioia
WIuc 001le
SUBTOTAL — 5.7 millIon PirOent of Total U.s. —30.2
TOTAL lJ.S. MANUFACTURING WORKERS — 10,9 milAoe
Source 5IdhIl”r 0bcI.acl 01 lIre UnrIed SIdle. 971 able 656 p 40 !
Figure 3. Compari8on of U.S. Manufacturing Employment by State, 1976
17
-------
Of the nearly 19 million U.S. manufacturing workers, less than 30% or 5.6 million work in
States which have paid more than a token number of hearing loss compensation claims.
Around 5.5 million, or 30% of the total, work in nine States which do not compensate partial
hearing loss. This includes many of our key industrial States like Ohio, Pennsylvania,
Michigan, Indiana and Massachusetts. Over 40%, or 7.7 million employees, work in States
where few or no claims are being filed, even though hearing loss compensation is on the
books. In fact, as Figure 1 graphically indicates, the only States paying sizable numbers of
claims for hearing loss (with minor exceptions) are three clusters on the Pacific Coast, the
Atlantic Seaboard, and the Upper Midwest.
Some of the States which have no hearing loss claims are basically nonindustrial, like New
Mexico, Nevada, Wyoming, and Idaho. Regardless of legislative restrictions, we would ex-
pect few claims. However, some of the States with zero or few claims have a large industrial
worker population, such as Illinois, Missouri, Texas, Virginia, North Carolina, South
Carolina, Georgia, Alabama, and Florida. Some have large numbers of noise-exposed
miners, like Tennessee, Kentucky, Montana, and Utah. Even West Virginia’s 42 claims
seem extremely low in relation to the 60,000 miners in the State.
As will be discussed later, individual union pressures have been responsible for increasing
hearing loss claims in many States. Yet a number of the States which have zero claims are
heavily unionized. Figure 4 shows differences in union organization between States. The
average for the U.S. was 26.2% in 1974. Compared to this, many of the States with few or
zero claims have high levels of organization. This includes Ohio (33 percent), Michigan (38
percent), Illinois (35 percent), Indiana (33 percent), and Pennsylvania (38 percent).
The great variation between the States in claims activity requires further investigation. The
following chapter will compare various State laws and administrative practices and will ques-
tion how some outside factors like union activity can affect claims volume.
18
-------
Figure 4. Strength of U.S. Union Organization By State
(figure includes number of claims per state in 1977)
L _____
____ p
AZ
i :
Union Membership as a Percentage
of Total Employment in each State
Under 15%
j 15-25%
• _ __J 26-35%
1 Over 36%
U.S. Union Membership
20.6 Million or
26.2% of Total Employment
- t
-------
CHAPTER III — KEY FACTORS IN STATE AND FEDERAL PROGRAMS
This chapter will compare the laws and other factors affecting claims activity in the various
State and federal programs. As Figure 1 shows, nine States compensate substantial numbers
of claims. Another nine States have legal restrictions which make hearing loss virtually non.
compensable. Finally, in 32 States, hearing loss is compensable but few claims are being
filed. As we will see, the high-claim and low-claim States differ in various ways which affect
the claimant’s ability to successfully process a claim. Major factors include hearing loss form-
ulas, filing time limits, choice of physician, waiting periods and worker awareness.
Claims Procedures: Overview
State Funds vs Insurance
The State and federal laws vary greatly in procedures and specific provisions, thus produc-
ing little uniformity. However, there are a few major distinctions. Worker’s compensation
claims are administered under three methods:
1) Employers are required to carry worker’s compensation insurance with a private in-
surance carrier which investigates, pays and disputes claims. The worker’s compensa-
tion agency plays a relatively passive role in monitoring the insurers and judging
disputes between insurers and claimants.
2) Employers are allowed to “sell-insure” themselves as an alternative to insurance and
handle claims themselves but must meet the standards of the Worker’s Compensation
Act.
3) A government fund acts as an insurance carrier, collecting premiums from employers,
investigating, judging and paying claims. In some cases, the fund is a monopoly and in
other cases it may function simply as a competitive insurance carrier, with the ad-
judicative and monitoring functions in a separate agency.
Most States allow both insurance and self-insurance. In many States, the largest employers
sell-insure to save insurance premiums and to better control claims. The federal Longshore
and Harbor Workers program is also a self-insurance/insurance program. A few States like
Ohio, Nevada and Washington have monopoly State funds, while several other States operate
their own insurance carrier. The Federal Employee Compensation FEC) program acts as a
monopoly fund.
This distinction is important because a privately administered insurance or self-insurance
program is an adversary system where the worker has a burden of proof and can have his
claim challenged in a hearing by the employer or insurer and their experts. Decisions are
21
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generally appealable through the normal court system. Agency rules and policies can be
challenged in court. In contrast, a monopoly fund like the FEC or in States similar to Ohio
has more administrative discretion. Its rules and decisions on individual cases are less ap-
pealable and it plays a more active role compared to the private parties.
Injuries vs Disease
The other major distinction in provisions is between injuries and occupational disease. The
great majority of physical injuries occur as the result of a well-established accident and re-
quire only minor medical costs and less than 15 days lost time.
The typical temporary injury occurs on the employer’s premises, usually from a provable
accident with witnesses to the event, e.g., crushed limb, fall off a platform, struck by a
forklift. In most cases, because the liability appears limited and the employer and insurer
want to get the person back on the job, medical care is provided and benefits are paid with lit-
tle delay. Of course, if the injury is not fully documented or looks like a possible permanent
disability, e.g., serious back strain or slipped disc, the employer may withhold payment or
begin a lengthy investigation similar to a case of serious occupational disease. However, the
routine procedure for most injury claims is as follows;
1) The injured employee notifies the employer of the injury.
2) After verification, the employer provides medical care through a physician selected by
him or the employee, depending on the State law (in some cases, the insurer has the
right to select the doctor). He also reports the injury (if it involves enough lost-time) to
the insurer and the State agency.
3) The insurance company checks the employer’s first report of injury. Unless there is an
unusual feature or evidence of non-compensability, a check is sent to the injured
employee, with a report to the compensation agency. In a few States, the agency must
review the claim and issue an order before payments are made.
4) For short-term injuries (the average temporary injury has a healing period of less than
15 days) the insurance company will usually not question the time off for healing.
However, for more serious cases, the insurance company will probably begin contacting
the employee’s doctor concerning an early date for return to work. In the case of
disagreements concerning the healing period, a doctor’s recommendation for light work
or permanent disability ratings, the insurance company will send the employee to their
own specialist for an evaluation.
5) In some serious claims the insurance company will simply cut off payments at a
predetermined point, and wait for the claimant to press the issue at a hearing, which
may take up to a year or so
22
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A hearing loss claim usually follows a different sequence from a proven injury. The
employer may have no hearing testing program and may have no evidence of the employee’s
hearing levels. The employee may become accustomed to his gradual decline in hearing abili-
ty. He may deny hearing difficulties and project blame to the speaker. He will probably start
to isolate himself since personal contacts start to become embarrassing. The affected person
will most likely not be aware of the hearing impairment until he is told repeatedly by family
and friends or gets the results of an audiometric examination from his doctor. Even his doctor
may not relate his loss to his occupation, and neither the employer nor his doctor may be
aware of worker’s compensation for occupational hearing impairment. Even after the
employee is aware that his hearing problem may have been occupationally related, he may be
fearful to approach the employer or may be uncertain how to proceed. Because of factors
such as these which might delay the filing of a claim, statutory time limits on filing are a
powerful obstacle to fair hearing loss compensation, as will be discussed.
Retired employees may have been away from the plant for months or years and may be
reluctant to return. If the employee has not previously notified the employer of his claim, in
most cases the employer will refuse to submit a First Injury Report. The claimant may have
no documentation that the hearing loss was occupational and the employer will not want to
concede liability in a serious disease claim.
In a case where the employer or insurer refuses to pay or acknowledge the claim, the
employee and/or his representative must begin a contested claim, which follows the sequence
below:
1) The claimant submits a petition or application to the worker’s compensation agency (see
Appendix 2 for the Wisconsin application for hearing and medical report), alleging an
occupational hearing loss. Where possible, this petition should also be accompanied by a
medical and audiometric examination of the claimant’s hearing, which will show both
the compensation agency and the insurer that the claim is documented. The claimant
should be ready to prove his occupational exposure, as well as the extent of his hearing
impairment. The claimant should be ready to defend against allegations that the hearing
impairment occurred in previous employment, that the impairment was caused by non-
occupational factors, or that filing requirements were violated.
2) The agency notifies the insurer of the petition and awaits a reply.
3) The insurer evaluates the petition and may send the employee to their medical
specialist. (In 24 States, the initial exam must be from a doctor chosen by the insurer or
employer.) They will probably also investigate other aspects of the claim such as alleged
noise-exposure, and possible non-occupational factors, and whether legal time limits were
met.
4) The insurer might voluntarily pay the claim if it is not too large and they feel it is well-
proven and not precedent-setting.
23
-------
5) While awaiting hearing or before scheduling a hearing date, the employee and/or at-
torney will usually have to open discussions with the insurer to obtain an earlier settle-
ment. Depending on the law, the quality of evidence and possible precedent, this may
result in: 1) a dropping of the claim; 2) a stipulation in which the claimant retains all
rights and the insurer pays full benefits; 3) a compromise which gives the claimant a
iump-sum for part of the claim and releases the carrier from further liability; or 4) hear-
ing and award in which the agency adjudicates the issues.
6) In a few States, where the claim record is complete, the compensation agency may
schedule a pre-hearing on its own initiative to allow each side to state its case and ex-
pedite a possible settlement without the expense of a hearing.
States differ greatly in their settlement styles. Some States like New Jersey have a hearing
and award for all claims. California freely allows compromises for most claims. In Wisconsin,
80% of all hearing loss cases are uncontested by insurers or are paid on a stipulation which
protects all claimant rights. Compromises are frowned upon and only used in 20% of the
cases, where there is a major question of non-occupational loss or conflicting audiograms.
Differences Between State and Federal Procedures
There are several major differences between the State and Longshore programs and that
for federal employees. The State programs, as well as the Longshore and Harbor Workers
program, are basically adversarial in nature. Since the employer and/or insurer have
economic stakes in the outcome, they can be counted on to contest the fact of the injury or ill-
ness, its relationship to the job, the length or severity of the condition, and so forth. The in-
surer’s experts are pitted against the worker’s experts. If the worker does not meet his burden
of proof, the claim is denied or can be appealed to the court system. Each side is also free to
negotiate on the claim and to resolve it short of a legal hearing. Agency rulings on cases which
go to hearing are also limited to interpretations of law and fact and must be based on a full
consideration of the evidence. All parties have a full opportunity to present their own
evidence and cross examine the opposition.
On the other hand, the Federal Employee Compensation program FEC) does away with
the adversarial relationship. There is a statute of limitations and burden-of-proof for the
worker. Yet, the agency itself, rather than a private insurer or the employer, has the full
burden of investigating the claimant’s allegations. The examiner has great freedom in
deciding the facts to be considered. There is no negotiation between employer and claimant
and no compromise allowed. All claims are adjudicated by the examiners of the FEC, usually
without a formal hearing.
* See Chapter V for a discussion of the FEC program.
24
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Federal employing agencies may present facts to FEC that controvert the claim, yet FEC
rules do not permit the employer to present evidence in a hearing, to have the claimant ex-
amined by its physician, or to cross-examine the claimant or witnesses. Even where the
federal agency objects to continuation of pay for an injury, alleges that there was no hazard-
ous exposure, or objects to the veracity of the claimant’s statements, the FEC examiner is free
to disregard employer statements and make his ruling. The right to request a hearing or to
appeal an adverse decision rests solely with the claimant. The final decision is made by the
Employee Benefits Review Board within the Department of Labor, with no court appeal.
The FEC also makes its own interpretations of statutory language and sets administrative
policy on impairment formulas, without going through formal rule-making procedwes under
the Federal Administative Procedures Act. As will be discussed below, the non-adversary
nature of the FEC program has allowed the adoption of a formula compensating high fre-
quency loss, and claims procedures without waiting periods or other restrictions.
Compensation Criterion and Considerations
The following sections will analyze some of the reasons why certain States have low claims ac-
tivity. Table 3 gives a breakdown of States by claims activity—high, low, and non-
compensable. Several key claims provisions in each State are graded as either positive or
negative. That is, the specific provisions in the hearing loss compensation statutes of each
State are evaluated in Table 3, as to whether they encourage the filing of claims, or whether
such provisions in effect, discourage and limit the filing of claims. For example, the 1959
AAOO hearing loss formula is a restrictive and limiting factor in the filing of claims.
Therefore, those States using this formula have a filled in box in the ilL Formula column in
Table 3, signifying a negative impact on claims. As the table shows, most of the high claim
States have few negative features in their programs. The low claim States have a much larger
share of negative items. This table is designed to given an overview of the discussion in the re-
mainder of this chapter.
Hearing Loss Compensation--Payment for Disability or Impairment
A major issue in U.S. worker’s compensation has been whether permanent disability
benefits should be restricted to cases of economic loss, or should be permitted where there is
physical impainnent, but no loss of job or earnings. This issue is also at the root of many
restrictions on permanent compensation for occupational hearing loss. It is recognized that
workers who suffer a hearing impairment are faced with a handicap in carrying out normal
personal activities as a result of the impairment. However, since most hearing-impaired
workers do not lose their jobs or suffer a measurable wage loss, their handicap is considered
by many to be outside the scope of worker’s compensation.
Since the early debates on hearing loss compensation 30 years ago, many States have over-
come the economic loss argument, and hearing loss is compensated on the basis of impair-
ment percentage alone. However, the nine States shown as non-compensable in Figure 1 re-
quire a claimant to show “incapacity to work,” “disablement,” “inability to earn normal
25
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Table 3
State and Federal Worker’s Compensation Rules Affecting Occupational Hearing Loss-
Positive and Negative Impact on Claims
JuCiSOiCTiO
W
E.a
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= •
2
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Fad, Emp.
Program
Lon g ohor.
&Harbor
Calitornia
do Connecticut
Minn.sola
Now Jersey
NowY ork
! Orogon
Washington
mutwa
Wiscsnoir
II
IL
H
Li
Ii
Li
I L
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i L
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Li
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IL
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:
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Jabama
Aiaska
Alizona
Arkansas
Colorado
Delaware
Georgia
Hawaii
Idaho
Illinois
i swe
Kansas
(-)K.ntucky
Main.
Mar 1aod
Mississippi
Misanurl
I Montana
Nebraska
N.ihowoi*I
N.Canena
N.Dokota
Oklahoma
Wmde iwnd
So.Carollna
So. Dakota
T.on.ssa.
Texas
Utah
V.rmoot
Virginia
Wyoming
Florida
•
•
U
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•
•
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U
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II
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IL
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W
Indians
Louisiana
Maaa.
MicIrigan
Nsvada
yIswMeutco
Ohio
ZP,olllpivauta
U
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2
LI
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2
11
ii
U
U
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•
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U
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•
Above and below average benelits, based on fitly-state mean LEGEND U Limits Claims
2 Undecided or unknown I Ercoura os/Does Not
3 No fixed benefit levels: see table 1 Discourage Hightlui Claims
26
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wages” or some other synonym for economic disability. Two of these States, Nevada and
New Mexico, require permanent and total disability. The industrial States of Michigan and
Indiana exclude hearing loss unless it has caused incapacity to work. Louisiana and Florida
also seem to require economic disability. Massachusetts requires a medical opinion of total
loss of hearing “for all practical purposes.” Ohio and Pennsylvania require total impairment,
which under the AAOO high fence of 92 dB would probably mean that the claimant is com-
pletely deaf. Unfortunately, with an average HL of 65-75 dB ire: ANSI -1969), at 500, 1,000
and 2,000 Hz, far below the present AAOO “high fence,” nearly everyone’s communicative
abilities would be totally impaired (K.ryter, 1973).
In Pennsylvania where the statute excluded hearing loss completely, a lower court allowed
a negligence suit for occupational hearing loss and awarded $30,000 in damages to the claim-
ant. However, this case was finally overruled by a higher court which held that the claim waft
covered by the worker’s compensation act’s ban on court suits (John Shoop vs. U.S. Steel Cor-
poration, 1972).
Thus, for almost a third of our nation’s industrial workers, living in the above nine States,
the proof of total hearing impairment or substantial economic disability caused by the noise
exposure is the standard of compensability. This severe test is almost never met. In these
States, the other issues of waiting periods, impairment formulas and severe time limits are
superfluous.
Previous Studies of Claims Criterion
Several previous researchers have studied hearing loss compensation criterion. Dr. Meyer
Fox (1976, 1978) has published several useful surveys of the standards used by U.S. and
Canadian compensation agencies. While Fox’s data on claims criteria are useful, he has not
reported on claims paid by the States. Thus, many of the States reporting that they compen-
sate hearing loss have in fact paid few or no claims due to the obstacles discussed in this
chapter. Thus, while the Fox study reports that 46 out of 50 States compensate occupational
hearing loss, our study has found that only nine States pay more than a token number of
claims. Thus, Fox’s conclusion of a liberalizing trend to “recognize and provide greater
coverage for occupational hearing loss” is true only to a limited extent.
It is important to look at the numbers of claims paid when comparing hearing loss rules.
For example, 23 out of 36 States reporting in the Fox Survey that they have no waiting period
for filing, either do not compensate hearing loss or have paid few or no claims. Eight of the 11
States responding that they deduct for presbycusis have few or no claims, whereas, only one
of the high-claim States deducts for presbycusis. Eighteen out of 32 States reporting compen-
sation for tinnitus (ringing in the ears) pay few or no claims.
Westerman (1975) recently compared compensation activities in foreign countries, pro-
vinces and U.S. States. His study also has little data on claims paid, but he does show that
most foreign countries severely limit worker’s compensation for hearing loss. Required proof
of economic disability or failure to compensate high frequency loss are frequent obstacles
abroad, as well as in the U.S.
27
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Barth (1976) did a landmark study of occupational disease compensation for the U.S.
Department of Labor. He surveyed statutes of limitations and special waiting periods as they
affect heairng loss claims. He also tried to determine the number of claims in selected states.
While his study only covered a minority of States, his data on few claims and filing restric-
tions agree with the findings of this study.
Hearing Impairment Formula
Table 4 shows the various hearing loss formulas in use and the States where they are used.
The FEC program uses the NIOSH formula with beginning impairment at 25 dB (re:
ANSI-1969) averaged over 1,000, 2,000 and 3,000 Hz. The Longshore and Harbor Workers
program has no agreed formula at this time; thus the decision is left to the examiner. Five of
the nine States which compensate substantial numbers of claims include high frequency hear-
ing loss to some extent in their compensation formula. New Jersey, the State with the most
claims, uses several formulas. However, the most frequently used formulas in New Jersey,
the 1947 AMA and the Berney formulas, both include 4,000 Hz and probably result in the
approval of many claims which would not qualify under the 1959 AAOO formula. California
simply adds 3,000 Hz to the 1959 AAOO formula for a 4-frequency average. The formula used
in Wisconsin (35 dB low fence at 1,000, 2,000 and 3,000 Hz) was developed by the Commit-
tee on Hearing, Bioacoustics and Biomechanics (CHABA) working group of the National
Academy of Sciences several years ago, as a way to include higher frequency loss, without in-
creasing compensation costs. The Wisconsin experience to be discussed in Chapter VI in-
dicates that this formula adopted in 1975, causes little change in claims or benefits from the
previous formula, since the 10 dB increase in the low fence compensates for the inclusion of
3,000 Hz in the formula. Now that the AAOO has recently included 3,000 Hz in its formula,
all formulas except the 1959 AAOO formula will cover some high frequency loss.
For the 32 States which pay few or no claims though they compensate hearing loss, none
except Kansas include high frequency loss, although Arizona has a court case approving the
NIOSH frequencies. Only 18 States use the 1959 AAOO formula. As discussed earlier and in
Chapter IV, the 1959 AAOO formula restricts compensable claims by ruling out many cases
where the individuals may experience a real handicap in personal and social situations.
Twenty six states include “medical evaluation” as the criterion, which leaves complete discre-
tion to the doctor. This may now mean the recently adapted (1979) AAOO formula in most
cases.
Waiting Period
Otologists and compensation authorities have recommended various waiting periods in
which the claimant must be removed from his noisy employment before qualifying to file a
hearing loss claim. The waiting period was to some extent to allow for recovery of any tem-
porary hearing loss. As will be shown in Chapter IV, it was principally an administrative con-
trol to avoid mass filing of claims. The rule excludes a large proportion of claims, since
employees cannot file while stifi working, and many employees die or move away before
qualifying for a claim.
28
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Table 4
Hearing Loss Formulas Used in U.S., State and Federal Workers’s Compensation Programs
Percent
Audiometric Method of Per
Frequencies Calcula- Low Fence High Decibel Better Ear States That
Formula Used Hz tion ANSI-1%9 Fence Loss Correction Use Formula
AMA - 1947 500, 1,000, 2,000 weighted 20dB 105dB varies 7/1 KS, NJ
4,000 average
AAOO - 1959 500, 1,000, 2,000 average 25 dB 92 dB 1.5 5/1 AZ. CT, GA, HI.
KY, MD, ME,
MO, MT. NE, NH,
NY, NC, RI, TX,
VA, WA, WV
AAOO - 19791 Same as California average 25 dB 92 dB 1.5 5/1 CA
NIOSH 1,000, 2,000, average 25 dB 92 dB 1.5 5/1 FEC
Recommends- 3,000
tion
CHABA 1.000, 2,000, average 35dB 92dB 1.75 4/1 WI
Recommends- 3,000
tion
California 500, 1,000, 2,000 average 25 dB 92 dB 1.5 5/1 CA
Formula 3.000
(Now 1979
AAOO)
Oregon 500, 1,000, 2,000 average 25 dB 92 dB 1.5 5/1 OR
Formula 4,000, 6,000
Barney 500. 1,000, 2,000 average 25 dB 92 dB 1.5 5/1 NJ
Formula 4,000
Note: Data are from Table 1.
I. States with no formula listed leave decision to examining physician (medical evaluation I, who will probably now use the 1979 AAOO.
-------
As Table 3 indicates, neither of the two federal programs nor the two highest volume States
use any statutory waiting period before filing (however, most audiologists will require the
employee to be away from noise at least 16 to 72 hours before administering a hearing test).
Only two of the nine highest volume States have a waiting period—New York with six months
and Wisconsin with two months. On the other hand, of the 32 States which have few or zero
claims, almost one-third have a waiting period—usually six months. There are some excep-
tions to the waiting period, if the worker is shown to have “transferred to non-noisy employ-
ment” for six months before filing. In some plants, when the employer reduces noise levels
below 90 dBA, this is interpreted as transfer to non-noisy employment. More senior workers
who suffered hearing impairment under former noisy conditions are urged to get hearing tests
and file a claim where merited. Also some States (Maine, North Carolina) allow the wearing
of proper hearing protection to serve as the waiting period. Hearing protection may not be a
valid substitute for a minimum waiting period due to recent studies demonstrating the lack of
effectiveness of hearing protectors for many workers (NIOSH, 1978).
Hazardous Exposure:
According to Fox (1976), 26 of the 50 States have rules defining “harmful noise” (see
Wisconsin Rule 80.25 in Appendix 1), either as 90 dBA—the OSHA limit, or in some cases,
85 dBA—the NIOSH recommendation. Six of the nine States with considerable claims in.
dude a definition of harmful noise.
Hazardous noise exposure on the job is one element in proving that the hearing impairment
is work connnected. A reasonable claimant burden to prove exposure is common in worker’s
compensation. Some States, like Oregon, do noise surveys where there is a question whether
the occupational exposure was sufficient to cause hearing loss. Other States have recognized
the noise exposure inherent in certain occupations—boilermakers, sheet metaiworkers—and
accept work history as evidence of exposure in the absence of specific noise exposure
documentation or other evidence.
However, if the claimant’s burden is too strong, e.g., such as the Utah requirement of a
“professional” noise test showing exposure to noise exceeding 95 dBA, this may defeat many
claims. For example, one Georgia claim was rejected because of an Occuaptional Safety and
Health Administration inspection finding that noise levels in the workplace were below 90
dBA (Georgia Board Ruling, 1977).
Experts agree that neither the 90 dBA or even the 85 dBA exposure rules for 8 hours would
completely eliminate hearing loss for a certain percentage of the population. According to
Kryter (1975) exposures of 75 dBA over a 40 year worklife can increase the risk of hearing
damage. The EPA Levels Document (1974) indicates that 8-hour exposure at 75 dBA is the
level below which no individual would suffer any hearing loss due to the occupational noise
exposure. In addition, impulse noise exposures have been shown to increase the amount of
hearing loss due to continuous noise exposures alone (Hammernik, 1976). Whole body vibra-
tion has also been shown to add to the hearing damage caused by impulse noise (Henderson,
1979). Combinations of impulse noise, continuous noise and vibration occur regularly in in-
dustrial and military environments.
30
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Another problem arises in the determination of noise exposure levels where no earlier
measurements were taken. If present noise levels are below 90 dBA or even 85 dBA, how does
the worker prove his earlier exposures where the work environment has been modified due to
different machines in operation, different operating characteristics of these machines caused
by wear and tear, modified or rebuilt machines in operation, and in general, different work
conditions. The burden of proof on the claimant should not be excessive since he has little or
no access (o facts on past exposure.
Therefore, a specific compensation rule defining “harmful noise” at either 85 or 90 dBA is
probably less valid than a reasonable presumption based on work history together with the
specific medical testimony of the claimant’s treating physician. It may also be appropriate for
States to set a noise exposure floor where no hazard to hearing can be expected. Above this
floor all exposures would be considered for more detailed examination of noise dose and hear-
ing loss records during employment.
It should be noted that one side effect of hearing conservation programs is a history of noise
exposure levels in the workplace. Thus, hearing conservation records could be used to pro-
vide factual documentation on workers noise exposure levels and noise doses. Unfortunately,
in many cases, the employer records on noise levels or hearing tests may be incomplete, self-
serving or inaccessible to the union or potential claimants. One way to overcome this would
be to involve the union in testing and monitoring, and making all important records accessi-
ble. Under the present OSHA noise regulation, an employer is required to establish hearing
testing and a noise monitoring program where employee’s noise doses exceed a set value. This
is still not effectively enforced.
Presbycusis Correction
Research indicates that hearing loss increases due to aging, even for persons not exposed to
occupational noise. Such studies show a gradual decline in the hearing sensitivity of the
population after 18 , ears of age. According to the 1962 U.S.Public Health Survey, less than
11 percent of all males at 60 years of age, and less than four percent at 50 years of age, have
hearing sensitivity poorer than the 1959 AAOO criterion for impairment. It should be noted
that the 1962 Public Health Survey did not exclude people exposed to occupational noise.
Some compensation programs deduct for the loss due to aging.
However, the general worker’s compensation principle is that aggravation or acceleration
of pre-existing disability, is compensable. For the great majority of claimants, it could be
argued that without the noise exposure, the decline in hearing threshold from age would still
be below the 26 dB impairment minimum. As will be discussed in Chapter IV, a recent paper
(Johnson, 1979) argues strongly that because most occupational hearing loss occurs in the
first 10 years of exposure but most claims are not filed until retirement, there should be an ag-
ing premium. This premium would pay the young worker more to compensate for the longer
duration of his impairment. Most States with substantial numbers of claims do not consider
an aging factor. However, Wisconsin deducts one half percent per year from the claim after
the age of 52. Connecticut and West Virginia allow the doctor to consider presbycusis in his
rating, and New Jersey allows for aging to be brought into the case; however, the issue is
rarely raised in these States.
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Choice of Physician
The choice of physician is a major factor in cla;ms activity. A physician chosen by the
employee is more likely than a carrier chosen doctor to stand by his evaluation and be willing
to testify or issue objective reports, even where the insurer is strongly contesting the claim.
Just as important, when the claimant takes the first step to assert his compensation rights he
is often unsure of his case and possibly fears the employer’s reaction. Where there is free
choice of medical care, the claimant can get an examination from a doctor he knows and
trusts and will probably be encouraged to pursue a valid claim.
In systems where the insurer or employer chooses the physician, most specialists depend on
insurer referrals for a substantial part of their income and are reluctant to testify for a claim-
ant or take a strong position on disputed issues. A classic article by a student of the Texas
compensastion system makes this point (Barton, 1968):
The doctor selected by the underwriter to treat the injured worker plays a
crucial role because his estimate of the nature, seriousness, and probable
duration of the injury is the basis . . . of the Board’s action in most cases.
Selected and compensated by the underwriter, the doctor is under strong
pressure to give the company the benefits of any uncertainties concerning the
injury. Those physicians who fail to favor the underwriter may lose a pro-
fitable relationship. . . insurance adjusters and doctors develop sell-serving
stereotypes—in their case, that of the “chiselling claimant,” who is out to rob
the insurance company of benefits to which he is not entitled. Of course, a few
such individuals exist in fact. But to many adjusters and doctors, dedicated to
serving the underwriter, claimants as a group become suspect and minimiza-
tion of benefits becomes a standard goal.
In looking at Table 3 again, only one out of the nine high claim States allows the carrier to
select the physician (New York uses an employer chosen panel), while seven States allow
employee selection. Contrast this with the 32 States with few or zero claims, where only 14
allow employee selection, 17 allow carrier selection and one has a panel. In eight of the 14
States allowing employee selection, the law provides for the 1959 AAOO formula, limiting the
doctor’s discretion in measuring the hearing loss.
Filing Time Limits
These provisions define how long after the injury or last exposure the employee has to file
his or her claim. In some cases, the State has a “discovery” rule which means that the
statutory time limits for filing do not begin until the employee has become aware of his
disability. In the nine States with substantial numbers of claims, all have discovery rules,
with time limits after discovery ranging from 6 months to three years. In the 32 States com-
pensating few or no claims, 27 have maximum filing times of two years or less from the date of
injury or disability. (Some special statutes define “date of injury” as the last day of employ-
ment for the particular employer.) Eighteen States have no discovery rules. Even where there
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is no discovery rule some State courts have developed special consideration for occupational
diseases (e.g., “latent injury” rule). The “discovery rule” may not be the only answer because
the worker may not be fully informed of work-relatedness or may not know his worker’s com-
pensation rights. Thus, even with discovery rules, many claims could be barred. In the ma-
jority of States without discovery rules, many workers could leave the job or retire withodt
realizing the extent of their hearing impairment and within one year or two would be forever
barred from a claim. To eliminate injustices which occurred when the statute of limitations
was used to defeat otherwise valid claims, Wisconsin has removed the statute of limitations
for occupational diseases.
Apportionment
Another issue which could confuse and block many claims is the problem of determining
which employer should pay for a hearing impairment. This issue occurs when the respon-
sibility for a compensable claim is disputed. The dispute can he between the insurance car-
riers involved and/or between the responsible employers concerning what portion of the hear-
ing loss is attributable to each employer. Interestingly, of the nine States with significant
claims, six legally allow apportionment of the claim between employers and insurers. Califor-
nia limits the apportionment to the last five years and Wisconsin charges the last employer
unless he can show competent evidence (a pre-employment audiogram) of preexisting loss
which few employers can do. Yet in conversations with the States it appears that the issue is
rarely raised, either because most claims are from long-term employees where the last
employer is clearly responsible or because the commission places a burden on the last
employer to prove previous loss. Few of the low-claim States allow apportionment and it ap-
pears this is not a key factor in claims defenses.
Other Provisions
As Table 1 shows, 33 out of the 50 States deduct preexisting hearing loss from the last
employer’s liability. However in several States, the so-called “second injury” fund covers any
preexisting loss which was aggravated by the present noise exposure. The worker’s claim
stays the same.
Tinnitus (ringing in the ears) and recruitment (abnormal perception to sound once it is
heard) are other handicapping factors that should be considered in compensation. Yet few
States compensate any hearing problems other than a pure tone audiometric hearing loss.
Hearing aids are another potential complication. California has a rule where employers can
ask that the claimant have a hearing test with a hearing aid. This teat and the uncorrected one
can be averaged to get a final figure. Yet when the employer asks for a test with hearing aid,
the State will require lifetime replacement and maintenance of a hearing aid for the worker.
This maintenance cost often exceeds that of the claim, and naturally few employers demand
such a corrected exam. As shown, almost every State allows hearing aids as a medical ap-
pliance. Yet few hearing loss claimants demand one.
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Impact of Special Statutes
At least a dozen States such as Wisconsin, New York, Missouri, Maine, North Carolina
and Maryland have enacted special hearing loss statutes. The Wisconsin Statute and Ad-
ministrative Rule, appearing in Appendix 1, is a good example.
The early statutes were passed as a way of restricting claims, in response to employer and
insurer pressures (Ginnold, 1974). Some other States copied the early statutes even though
there were few or no claims at the time, e.g., the North Carolina statute. By introducing
restrictive criterion not present for other permanent disabilities—e.g., six month waiting
period, 90-95 dBA hazardous noise definition, restrictive impairment formula or aging
deduction—these statutes have severely reduced the number of potential claims. Even claims
which qualify are much more likely to be contested by the carrier. Wisconsin and New York
are the only States among the nine high claim states which have special statutes.
An example of an especially restrictive special statute is the Utah law. This law sets a 95
dBA hazardous noise exposure requirement which the worker must prove by a “professional-
ly controlled sound test.” One Utah claim was denied because the mining operation where the
worker was exposed had been shut down and the test could not be conducted (Utah Compen-
sation Commission, 1978). In addition, the hearing loss claim cannot be filed until six months
after termination of exposure to noise levels of 95 dBA, but it must be filed within one year
after termination of exposure to noise or employment to the last employer, whichever occurs
first. Thus, in Utah the impaired worker has a six month period at the end of his working life
when he can file a claim.
Trends in State Laws and Court Decisions
In spite of recent trends in hearing loss claims, there are only a limited number of statutory
changes and landmark cowl decisions. Some of the principal ones are as follows:
- in 1978, Maine reduced the six-month waiting period to one month. The statute pro-
vides that this month can be spent working as long as the effective noise dose is reduced
by wearing proper hearing protection.
- in 1975, the State of Illinois made permanent partial hearing loss compensable.
However, the Illinois Industrial Commission has not yet issued any compensation
criterion for determining impairment. Three years later, hundreds of claims have been
filed by workers in large plants like the Caterpillar Works in Peoria. Illinois State
worker’s compensation arbitrators held hearings on several claims with extensive
testimony by claimant experts and insurer experts. There are now a few arbitrators’
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decisions on key claims, with awards exceeding the usual amount in most States. It ap-
pears that most insurers are holding off on voluntary payments or settlements. The Il-
linois Industrial Commission held a training seminar by an audiologist for its arbitrators
in October, 1978, and is now considering the issues of decision guidelines and a hearing
loss rule as opposed to the full discretion which individual arbitrators now have in inter-
preting the law.
- in the State of Washington, the Boilermaker’s union and other labor groups complained
about claims restrictions for hearing loss (the State uses the 1959 AAOO formula, with
no waiting period). A medical committee was appointed by the state compensation ad-
ministrator in early 1978 and has met and received public comments on rule changes. A
final report is now being circulated and will probably support the new AAOO formula
and a few changes in State claims procedures.
- both Kentucky and Tennessee are considering special statutes for occupational hearing
loss compensation. In an attempt to prove the need for its statute, the State of Kentucky
did a computer study of claims since 1972. They found 125 reports of permanent hearing
loss, of which most had been dropped or denied, 45 were pending hearing and only six
had been paid (Block, 1978).
- in a 1976 ruling, the Florida Supreme Court held that permanent injuries like hearing
loss are payable under the injury schedule with no consideration of wage loss (Minis and
Thomas Manufacturing Co. vs. Ferguson, 1976). This reversed a 1966 ruling which had
virtually blocked hearing loss claims in the State; however, there is still so much litiga-
tion over the issue that it appears no claims have yet been paid.
- in a 1976 case, the Arizona Supreme Court ruled (Adams vs Industrial Commission of
Arizona, 1976) that the NIOSH impairment criterion (25 dB averaged over 1,000, 2,000
and 3,000 Hz) could be used to determine hearing impairment for compensation pur-
poses.
- in the State of Minnesota, the State law allows examiners broad discretion in choosing
between hearing loss formulas and types of tests. The Worker’s Compensation Court of
Appeals ruled in 1976 ( Weishinger vs. Minneapolis Star and Tubing, 1976) that claims
could be awarded on the basis of speech discrimination tests, as well as audiometric
tests.
- in Michigan, hearing loss compensation has been limited to the purchase of a hearing
aid in cases of severe deafness. The reason for this is that the State’s permanent disabili-
ty compensation usually requires proof of economic loss and does not compensate im-
pairment alone. However, in a growing number of precedents, the Michigan Compensa-
tion Board has awarded benefits where return to the previous employment would cause
further injury. In a 1978 case the Michigan Board awarded a permanent disability pen-
sion to a worker who had saffered a hearing loss at work, because return to work would
further damage his hearing (Oscar Rhoton vs. Bower Roller Bearing, 1978).
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- in an Indiana case (Martinez vs. Taylor Forge and Pipeworks, 1977) the Court of Ap-
peals held that occupational hearing loss was neither an injury nor disease, and set a
standard requiring loss of earning capacity to receive permanent partial disability
benefits.
The Role of Unions in Claims Development
One major influence on claims activity is the work of unions in informing and assisting
nembers. When we look at Figure 4, there is no simple relationship between union organiza-
ion and worker’s compensation law. For example, several of the most highly unionized
itates, like Ohio and Pennsylvania, do not compensate hearing loss, while the least unionized
hate, North Carolina, has a statute and pays claims. However, there is some overall relation-
hip. A majority of the high-claim States and federal shipyard workers have rates of union
)rganlzation above the nationwide average of around 26% of the labor force in 1974. The
çreat majority of the Plains and Southern States which have little or no hearing loss compen-
ation are below the national average of unionization. When we look at some specific cases,
he connection becomes clearer.
1) In Wisconsin, claims jumped from 80 to over 150 from 1974 to 1975, with no change in
hearing loss rules or benefits. One factor was activity by the State Federation of Labor in
demanding improvement in the hearing loss compensation rules. The University of
Wisconsin School for Workers also held several programs on occupational hearing loss
claims, including a two-day workshop in Milwaukee, in January of 1974, attended by
over 100 union leaders. This information was well received by local unions. A review of
claims shows that 75% of all claims were filed by employees in nine unionized
Milwaukee metalworking firms (Ginnold, 1977). These unions had compensation com-
mittees whose leadership had attended these training programs. Another important fac-
tor was a revolving fund established by the United Steelworkers of America District 32
in Milwaukee, to pay for a hearing evaluation for any member. If a compensable loss is
found and the claim is paid, the worker who has been awarded the claim repays the
fund. This fund now pays for over one hundred evaluations annually.
2) In another case, under the FEC program, over 5,000 claims were filed by the employees
of Long Beach Naval Shipyard (employment averaged 6,000). Their Boilermakers local
union originally began filing claims, after management had ignored union demands to
correct the problem, including refusing to provide hearing protection (Abbott, 1978).
The union actively consulted with the local Federal Employee Compensation (FEC) of.
fice, held educational seminars on claims handling and retained top California labor at-
torneys and hearing specialists. A large proportion of their claims have been paid. The
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local union considers service on compensation claims a very effective organizing tactic
and reported that over 1 ,000 members joined because of the claims program.
3) One of the larger Chicago area unions, local 6 of the United Auto Workers at the Inter-
national Harvester plant at Melrose Park has been working on noise problems for 10
years. They were among the unions fighting for hearing loss compensation And now are
giving hearing tests to union members as their newsletter (Union Voice, 1979) states: “A
hearing test was held. . . at the Union Hall. . . to determine the extent of hearing loss
suffered in departments where the noise level is beyond tolerance . . . Everyone was
audiogrammed before being hired and the percentage of loss is relatively easy to prove.
This is a compensable injury and one of the easiest ways we have to make the environ-
ment in the working place more tolerable.” In the same issue, the union reported on its
participation in a hearing on an OSHA noise citation and stated: “Hopefully all
members that work in areas which exceed the guidelines will return to work to the
sounds of silence.”
4) Another example of union activity was reported in the UAW paper Solidarity (1978). In
this case, more than 250 claims have been handled by the UAW local representing Ford
assembly plant workers in Metuchen, N.J., as a result of a campaign begun by their
president, himself the victim of a hearing loss.
These are only a few examples of a growing union involvement in claims.
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CHAPTER IV- SCIENTIFIC SUPPORT FOR COMPENSATION RULES
This chapter will summarize the scientific support for various hearing loss compensation
rules mentioned earlier. To what extent do the rules covering such issues as definition of hear-
ing impairment, waiting periods, and aging corrections have scientific validity?
Recent Changes in the AAOO Formula
While compensability depends on many factors, the inadequacies of the 1959 AAOO for-
mula have dominated discussions of hearing loss compensation for some time. In response to
a growing volume of research challenging the basis of the old formula, the American
Academy of Otolaryngology in its 1978 meeting, approved a change in the formula to include
the 3,000 Hz frequency. This change has been published by the AMA in the 1979 revised
Guide for the Evaluation of Hearing Handicap.
The revised formula averages the frequencies of 500, 1,000, 2,000, and 3,000 Hz, and the
low fence of beginning impairment remains at 25 dB (re: ANSI-1969). This formula is iden-
tical to the formula used by California worker’s compensation authorities since the early
1960s. In explaining its change, the AAOO recognized the need to “reflect a more realistic
degree of the understanding of speech, not only in quiet but in the presence of noise.” The
Guide states that “the Hearing threshold level at 3,000 Hz should be included in the calcula-
tion of hearing handicap to provide a more accurate assessment of hearing handicap in a
greater variety of everyday listening conditions.”
The new formula will show compensable impairment for a much larger percentage of the
population than the old formula, according to Dr. Larry Royster (1978). Using a group of
10,000 industrial workers in North Carolina, Dr. Roycter determined that 6.2% of the
workers have impaired hearing levels under the new AAOO formula compared to 3.5% under
the 1959 AAOO formula. If the NIOSH recommeded frequencies are used, 8.6% of the
population is shown to have impaired hearing. It is not clear how the new AAOO formula will
effect compensation claims. Some of the more active States and federal programs are already
using the NIOSH frequencies or other formulas which recognize the importance of a high-
frequency hearing loss component. A number of States have the AAOO 1959) frequencies
written into law. If the hearing impairment formula in these States is changed to include the
revised formula, many more workers will be eligible for filing claims. However, it should be
noted again, that some of the main obstacles to claims in many States are independent of the
basic formula.
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Hearing Loss Formula—Question of Adequacy
Frequencies
Even though the 1959 AAOO formula has just recently been revised, the inclusion of the
3,000 Hz frequency simply makes the new AAOO formula one more among several which
recognize high-frequency hearing impairment. Since the old 1959 AAOO formula is still being
used by many States, it is important to review some of the reasons for the recent change.
The basis for the 1959 AAOO formula (AMA, 1961) was a definition of hearing impairment
in terms of “ability to hear everyday speech under everyday conditions. The ability to hear
sentences and repeat them in a quiet environment is taken as satisfactory evidence of the cor-
rect hearing of everyday speech.” Averaging the pure-tone audiometric hearing levels at the
frequencies of 500, 1,000, and 2,000 Hz was then assumed to be a valid index of hearing
ability. This criterion is inadequate on several grounds. The AAOO formula is limited to pure
tone hearing and hearing speech. It excludes the essential communication functions of
understanding and discriminating speech. As Kryter (1973) shows, the pure-tone audiometric
levels on which the 1959 AAOO formula is based drastically understate the communication
difficulties of the hearing impaired. Acèording to his estimates, an individual with an average
hearing level of 25 dB (re: ANSI-1969) at 500, 1,000 and 2,000 Hz, which is the low fence or
point of beginning impairment, would correctly understand but 90% of sentences and 50% of
words spoken in a quiet background at a normal conversational level and a distance of 3 feet.
At the same time, an individual with an average hearing level of 54 dB (re: ANSI-1969)
which is rated as a “mild” handicap and 42% hearing impairment according to AAOO
guidelines, would not be able to understand any words or any unpracticed sentences spoken
at a distance of one meter at normal conversational levels in a quiet room. Yet, this “mild”
handicap is far below the AAOO criterion for 100% impairment.
Secondly, speech discrimination in quiet does not simulate life-like conditions since people
must also hear in an atmosphere with background noise, competing signals from different
directions, accents, mumbling, poor position, distortions and other interferences (Kryter,
1973). Under these conditions which might be as often as 50% of the time, high frequency
hearing is very important for an adequate understanding of speech.
A recent study (Suter, 1978) published jointly by the Environmental Protection Agency
(EPA) and the U.S. Air Force Aerospace Medical Laboratory (AMRL) thoroughly reviews
the justification for various impairment formulas and tests these formulas against speech
discrimination scores obtained with babble noise at different levels in the background. The
results of this important study confirm the significance of high frequencies (3,000 and 4,000
Hz) in understanding and discriminating speech under life-like conditions. In fact, the
EPA/AMRL research found that the 1959 AAOO frequencies correlated the poorest with
speech discrimination ability in noise. Furthermore, individuals whose hearing was termed
normal according to the AAOO criterion, had considerable difficulties in speech discrimina-
tion when their high frequency thresholds were effected. The report concludes (Suter, 1978):
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• . .frequencies above 2,000 should be included in any technique for assessing
the ability of hearing-impaircd individuals to understand speech in “every-
day” listening situations. For the assessment of hearing handicap in a noise-
exposed population similar to that of this experiment, the average of 1,000,
2,000 and 4,000 Hz appears to be the most appropriate simple average.
Many other scientific studies investigating the relationship between pure tone thresholds
and speech discrimination abilities (Mullins, 1957; Harris, 1960; Kryter, 1962; Niemeyer,
1967; Acton, 1970; Lindeman, 1971; Murry, 1972; Anianson, 1973; Dickinan, 1974 and
Humes, 1978) provide substantive evidence to support the inclusion of frequencies above
2000 Hz when assessing the ability of hearing impaired persons to understand speech in
everyday conditions with noise in the background.
Finally, the NIOSH Criteria Document published in 1972, proposed a new definition of
hearing impairment for speech for the following reasons:
1. “The basis of hearing impairment should be not only the ability to hear speech, but also
the ability to understand speech.
2. The ability to hear sentences and repeat them correctly in quiet is not satisfactory
evidence of adequate hearing for speech communication under everyday conditions.”
Based upon their review of the scientific literature, NIOSH defined beginning impairment for
speech communication difficulties as average hearing levels at 1000, 2000 and 3000 Hz in ex-
cess of 25 dB (re: ANSI, 1969). This departure from the AAOO formula eliminated 500 Hz
and incorporated 3000 Hz in its place. NIOSH thereupon stated that “hearing levels at these
three frequencies predict hearing loss for speech under mild conditions of distortion better
than the three frequency average at 500, 1000 and 2000 Hz...”
In view of the above and the recent AAOO formula change, it appears that the hearing im-
pairment criterion used by the States that recognize the importance of high-frequency impair-
ment are more realistic and scientifically based than those using the old AAOO formula. The
reader desiring additional insight should read Suter’s (1978) study for an excellent review of
the scientific literature supporting high frequency impairment criterion.
Low Fence
Concerning the low fence, or beginning point of hearing impairment Kryter (1973) recom-
mends that the fence for the 1959 AAOO frequencies be shifted to 15 dB (re: ANSI-1969)
which corresponds to ahnost 100% intelligibility for normal speech. For the frequencies of
1000, 2000 and 3000 Hz, 25 dB is an equivalent figure. This coincides with the NIOSH for-
mula. The Suter study (1978) has also shown that persons with average hearing levels of 26
dB at the frequencies of 1000, 2000, and 3000 Hz had “significantly more difficulty in
understanding speech than the normal hearing group.” In conclusion, Suter’s report suggests
fences of 19 dB (re: ANSI-1969) for 1000, 2000, and 3000 Hz, and 22 dB (re: ANSI-1969) for
1000, 2000, and 4000 Hz, based upon the specific research findings. The threshold values for
the fence to be selected will vary depending on which frequencies are used.
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Overall, there is no consistent agreement between hearing researchers on the exact level for
the low fence, although recent research findings tend to support the NIOSH formula as a
reasonable compromise for predicting speech difficulties based upon a simple pure tone
average. There has been a substantial amount of research conducted in recent years in the
area of speech discrimination of the hearing impaired. Data from these studies should be
reanalyzed in a uniform manner and the results summarized and considered in hearing com-
pensation policy. The Office of Worker’s Compensation, U.S. Department of Labor, has
begun to contract for a large literature review study in this area. Furthermore, a comprehen-
sive study of the everday social handicap caused by occupational hearing loss is an area that
deserves long overdue research. Such a study would determine the amount of speech
discrimination ability necessary to carry out one’s daily activities. Such a relationship would
probably vary depending upon occupational factors and special interests.
High Fence
With respect to the high fence, there is evidence that the present AAOO level of 92 dB (re:
ANSI-1969) for 100% loss is excessive. Under this standard, an individual would not have
100% loss until he could not detect audiometric signals at levels higher than the present eight-
hour OSHA noise limit. Kryter points out that “the ability to hear ‘everyday’ speech is com-
pletely lost at much lower average levels than 92 dB.” In fact, the AAOO criterion states that
from 70 to 90 dB hearing levels, the person “can hear only shouted or amplified speech.”
This says nothing about speech discrimination scores which are essentially zero under listen-
ing conditions at normal conversational levels. One of the AAOO leaders, Hallowell Davis,
admits that “we find a zone of uncertainty from 70 to 90 dB (ISO). . . within the zone some
individuals are socially deaf...” (Davis, 1970). It appears that the AAOO chose the high fence
for arithmetic simplicity without any empirical basis. This high fence also contradicts
AAOO’s own impairment criterion—the ability to hear “everyday” speech. A more
reasonable high fence might be the point at which an individual cannot understand any
sentences or words spoken at a normal conversational level with noise in the backgroud.
Research needs to be initiated in this most important area to determine the high fence of im-
pairment for communication purposes and the corresponding social handicap.
Impairment Rate of Growth
Another area in which the AAOO formula is not adequately documented is the impairment
rate of growth. Very little work has been done to determine the effect of an auditory impair-
ment on communication ability beyond the low fence. Historically the AAOO has assumed a
linear progression between the low and high fences, but there is virtually no social com-
munication research supporting this position. Instead the 1.5% per decibel rule seems a mat-
ter of convenience. The subject deserves some serious research.
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Better Ear Correction— Weighting Ears
Another provision which lacks justification is the 5/1 better ear correction still used by the
AAOO. There seems to be no scientific proof that the “better” ear can make up for the worse
ear by a factor of five, and no support is given in the AAOO guidelines. This correction
substantially reduces awards where one ear is 10-20 decibels worse than the other. A sizable
difference in hearing ability between ears especially limits the ability to determine the loca-
tion of a signal. This causes safety problems when the hearing-impaired person mistakes the
direction of alarms or alerting signals. In addition, two ears are better in detecting faint
signals in a quiet room and in a background of noise (Davis, 1970). It is also easier to separate
a voice from the background noise thus reducing the potential auditory confusion and in-
creasing discrimination ability. Unless some proof for differential weighting can be produced,
it appears that the traditional 5 to 1 weighting is not justified. Further research in this area is
also needed.
Aging Factor
More than 10 States reduce the hearing loss compensation award for the effects of aging.
For example, Missouri makes a deduction from calculated hearing impairment of one-half
decibel for each year over 40 years. The rationale for this is the desire to subtract “the average
amount of hearing loss from non-occupational causes found in the population at any given
age” (Missouri Statutes, 287.197(6)). It is true that persons lose hearing ability as age in-
creases, even when they are apparently not exposed to hazardous noise at work. But, there
are large differences in individual susceptibility to hearing loss. Thus an average correction
may not be appropriate, since “age corrections for an individual are probably in error the ma-
jority of the time” (Johnson, 1979). There is some disagreement as to how much of this loss is
due to the aging process alone (presbycusis) and how much is due to environmental noise ex-
posures (sociocusis). It is also not known how the aging process interacts with the growth of
occupational hearing impairment.
The aging factors mentioned above could reduce the compensation award by well over
50%, since waiting periods and inertia cause most workers to file claims when they are past
the age of 60. The average State claim is around 20% (a 13 dB loss under the 1959 AAOO
formula). The Missouri law would subtract 10 decibels from the claim by the age of 60. This
would reduce the award from 20% to 5%. Furthermore, small claims of 5-10% (a hearing
threshold of 28-31 dB (re: ANSI-1969) under the 1959 AAOO formula) would be virtually
eliminated by the aging reduction of Missouri, Kentucky, Maryland and other similar states.
Is the aging factor justified? There are a number of points against it but most important is
that most workers sufler the great majority of noise-induced hearing loss at the higher fre-
quencies in the first 10 years on a noisy job assuming the noise exposure remains fairly con-
stant from year to year. Thus, as a recent paper discusses (Johnson, 1979), a worker 30 years
old may have a substantial hearing loss—all due to noise and none due to aging—and may
have to live with it 30 years longer than the older worker. He usually is not able to file a claim
at the earlier age and when he reaches retirement age, much of his claim might be eliminated
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by the “aging reduction.” Thus, where the law delays filing claims until retirement, an aging
factor simply further undercompensates the hearing impaired worker.
Apart from the above, even the most careful studies indicate that only a small percentage of
the non-noise exposed population will have hearing thresholds poorer than existing impair-
ment criterion. It is also true that none of the studies have been able to fully control for non-
occupational noise exposure (Kryter, 1975). The 1960-62 National Health Survey has shown
that only 11% of all adult males at the age of 60 have poorer hearing ability than the 159
AAOO criterion, from all causes. This figure is probably higher than aging alone would reveal
due to the inclusion and contamination of persons exposed to occupational noise.
For most people, the presbycusis losses in the AAOO frequencies will be absorbed in the 25
dB range between the median hearing levels of normal hearing young adults (approximately 0
dB re: ANSI-1969) and the “low fence” of compensation at a hearing level average of 25 dB
(re: ANSI-1969). In the latter cases, no aging reduction would be justified, since a loss in the
impairment range would be due to noise exposure.
Even for those people whose hearing would normally be poorer than 25 dB (re:
ANSI-1969), at the 1959 AAOO frequencies, the noise increases the severity of the hearing
impairment. In worker’s compensation language, occupational noise exposure “accelerates
and aggravates” the underlying physical condition. It is analogous to someone predisposed to
arthritis or with weak lungs who develops an impaired back function or lung disease due to
their work. Usually in worker’s compensation theentire impairment is compensable as long
as an occupational factor in any way increases the impairment caused by the physical condi-
tion. It is not clear why hearing loss should be treated differently. Thus there appears to be a
strong argument against aging deductions and some argument for increasing awards for
workers who lose hearing at a young age.
Waiting Periods
There is a need to eliminate any potential temporary threshold shift before testing a person
for their permanent hearing threshold. There is scientific disagreement on how long this
takes. Ward states that “two weeks is mandatory” (Ward, 1969). Other studies show that the
time required varies greatly with the noise exposure and individual factors. In most cases the
temporary loss at 4,000 Hz is completely eliminated within seven days after exposure (Miller.
1974). Another study using chinchillas found that permanent thresholds were reached within
fifteen days (Mills. 1973).
While there is still some disagreement on how long temporary threshold shift lasts, there is
no doubt that the six-month waiting periods found in ten States have no medical justification.
Supporters of the six-month waiting periods, have admitted in the past that the six-month
waiting period is not based on a proven medical need. For example, Dr. Aram Glorig stated
twenty-five years ago: “. . . At present the necessary time is stated as six months
• • agreed upon • . . because we felt that the evidence was not enough to support another
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number and being physicians we wished to be conservative.” In response to a question during
the same meeting, Glorig admitted that he knew of no case that had ever improved after 24
hours (Noise in Industry and Its Effect on Loss of Hearing, 1958). In 1956, Hallowell Davis
stated:
I am personally skeptical about the need of waiting as long as six months in
order to establish the plateau for the kind of hearing loss that is induced by
noise . . . the really important thing is to consider the various reasons why it
may be desirable to have some period . . . We should be a little cautious in
calling it a waiting period for medical reasons . . . that particular ground for
it might be withdrawn (Symposium on Noise in Industry, 1956).
As Ward pointed out after recently supporting a period of two weeks as a minimum:
little further recovery occurs after a month, although occasionally follow-
ing trauma from a single incident (such as a firecracker exploding near the
ear) slight additional recovery may occur in the second month. In Wisconsin,
a six-month noise free period is required, but this regulation is based more on
political than scientific grounds (Ward, 1969).
Finally, the fullest discussion of the real basis for the six-month waiting period was by Dr.
Carl Zenz, Medical Director of Allis-Chalmers Corporation, writing for the Foundrymen ‘s
Guide (1972), Dr. Zenz first stated that:
temporary threshold shift is an effect from which the worker recovers
after absence from noise exposure for one day or less. Recovery periods vary
between individuals. Because of uncertainties, it is suggested that hearing not
be tested until at least 24 hours after the last exposure. Wherever possible, a
longer period (up to one week), would be desirable.
Then, in discussing the six-month rule, Zenz says:
the working population includes millions of people with less than normal
hearing. These hearing losses have accumulated through the years and no
financial provision has been made for settlement of the claims that could
develop if all were free to file claims and collect benefits at any desired time.
The six-month waiting period has been recognized generally as the most
satisfactory method of avoiding mass filing of claims. . . no claim may be fil-
ed until six consecutive months after the worker’s last exposure to injurious
noise . . . It therefore spreads out the filing of claims but protects the
workers’s right to establish a claim upon retirement or when he is no longer
employed in a noisy occupation.
Several States like Wisconsin and Maine have reduced their six-month periods (Wisconsin
to two months and Maine to one month). The States and federal agencies now using a rule of
16 hours to 72 hours should probably be somewhat more conservative by making sure the
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employee has the least possible noise exposure during the two weeks prior to the test. Where
there is a possibility of temporary loss, the audiologist might retest the patient a few hours
later. This would tell whether a temporary loss was present. Fair administrative measures
such as those above would give reasonable standards without preventing impaired employees
from filing valid claims without delay.
Beyond Audiometric Testing
At present audiometric hearing levels are the principal measure of hearing impairment.
Rarely is subjective evidence of impairment considered in compensation claims. Yet there is
substantial research indicating that some individuals may have cochlear damage which
severely affects hearing, in spite of normal or near-normal audiograms (Lipscomb 1975).
Lipscomb, for example, showed that persons with slight audiometric loss and good speech
discrimination scores in quiet, “broke down considerably” when tested in noise. Tinnitus
(ringing of the ears) can also be a severe aggravating condition (Vernon, 1978), but is rarely
rated by examining doctors. This brings up the need for impairment guidelines which con-
sider all types of interference with everyday communication and functioning and allow physi-
cians more discretion in considering subjective impairment.
Finally, though it is beyond the scope of this report, there is increasing evidence (EPA,
1978; National Academy of Sciences, 1979) of a possible association between excessive oc-
cupational noise and other health conditions such as hypertension and cardiovascular pro-
blems. A recent National Academy of Sciences, CHABA working group draft report recom-
mends that additional studies of nonauditory effects caused by long term exposure to high
noise levels are definitely needed to determine whether there are other “undesirable health ef-
fects from excessive noise such that standards should be set to protect workers in industry.”
Insurers report that occupational hearing loss is being brought in jointly with heart problems,
lung disease and other ailments as a contributing factor in “omnibus” permanent total
disability claims filed in Michigan and other States. Thus far, medical guidelines have not
considered these interactions.
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CHAPTER V — FEDERAL HEARING LOSS COMPENSATION:
AN ANALYSIS OF CLAIMS ACTIVITY AND PROCEDURES
As discussed earlier, federal hearing loss claims have risen very rapidly and now exceed any
single State except New Jersey. The main factors in this rapid increase are a backlog of
claims from retiring World War II and Korean era shipyard employees, a present lack of
noise control and hearing conservation in many federal facilities, and changes in the compen-
sation formula by the Department of Labor. Under the FEC Program (Committee on
Government Operations, 1978), the principal noise-exposed group includes approximately
65,000 federal shipyard workers and less than 100,000 airbase workers. Claims filed with the
FEC have totalled more than 30,000 since 1970. Annual claims filed rose from 500 in 1969 to
a peak of almost 9,000 in 1976. Under present procedures greater than 50% of the claims fil-
ed are being denied. Records show that during the March 1976 to March 1978 period, the
FEC Hearing Loss Task Force approved 3,625 claims totalling $27.7 million in benefits.
There are still almost 8,000 claims pending.
Recent Government Accounting Office (GAO 1978) audits have indicated a need for
tighter administration and more scrutiny of claims by the Department of Labor (DOL). Par-
tially in response to their audits, the DOL Office of Workers Compensation Programs
(OWCP) has established a Hearing Loss Task Force in the FEC as a central processing unit
for hearing loss claims. With a staff of examiners, medical and audiological experts and cen-
tral recordkeeping, they have made the claims processing much more thorough and uniform,
with detailed investigations of problem claims. Under a 1978 directive, all FEC hearing loss
cases are now channelled through the Task Force.
The Longshore and Harbor Workers program (LSHW) covers up to 50,000 workers in
private shipyards. They are only now beginning to experience a rise in hearing loss claims,
largely because insurers and employers have been successful in preventing the official adop-
tion of the NIOSH formula, and because they have a larger role in disputing individual
claims. Lower worker awareness in smaller, private shipyards is a further factor.
Federal Employee Compensation Program
Hearing Loss Benefits Under the FEC
The Federal Employees Compensation Act covers all federal and wage-board employees
(including blue-collar workers in federal installations). This Act has provisions for
“schedule” compensation payments for “loss of a member or function of the body” (Commit-
tee on Government Operations, 1978; Frazier, personal interview, 1978). Compensation is
paid for physical impairment without consideration of loss of earnings. However, where there
is a proven loss of earnings, an award can be made beyond the schedule. Complete loss of
hearing is rated at 52 weeks of compensation for one ear, or 200 weeks for binaural loss, with
partial loss calculated on a proportional basis. The compensation rate for each week for loss
of hearing and other diseases is calculated at 66 2/3% of the weekly wage as of the date of the
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scheduled award (75% for a person with one or more dependents). The maximum rate is now
$678 weekly, amounting to total maximum benefits of $135,600 for 100% loss.
The Bureau of Federal Employees Compensation (FEC) within the Department of Labor
is responsible for investigating each claim, determining whether an award is justified, and is-
suing a compensation order. Compromise agreements are not permitted. The employing
agency is not a party in an occupational disease claim. The injured employee submits a claim
to the FEC accompanied by medical evidence from his treating physician, and the FEC is
responsible for investigating the claim and making a ruling on all evidence, including facts
provided by the employer. The employer has no right to have the employee examined or to
have a hearing or appeal. The only way the employer can question the employee’s evidence is
by presenting related facts to the FEC examiner. If the examiner has questions about the
facts presented by the claimant and/or employer, a further investigation may result or the
case can be sent out for an independent medical opinion. Prior to the establishment of a cen-
tral processing unit for hearing loss claims, the FEC Hearing Loss Task Force, few hearing
loss claims were fully documented.
In determining compensability the FEC examiner has two basic criteria:
—work exposure to noise exceeding 85 dBA. The program directives do not require a cer-
tain period of exposure or a time-weighted noise dose.
— Calculation of impairment by a formula using the average hearing level at the frequen-
cies of 1,000, 2,000, and 3,000 Hz with a low fence at 25 dB (re: ANSI-1969).
The FEC is allowed to issue administrative provisions for awarding compensation without
consideration of normal rule-making procedures. Since the FEC program is funded by
general revenue, employers do not have standing to challenge administrative rules or awards
in individual cases. Examiner’s awards can only be appealed by the employee to the
Employee Compensation and Appeals Board (ECAB) within the Labor Department. Thus,
interpretations favorable to the employee are never challenged by an outside body. This
freedom from independent scrutiny and rising federal employee awareness of occupational
hearing loss presented FEC with a number of issues it could not handle adequately. Most of
the problems arose prior to 1977, when claims were being processed by FEC district offices
without specific guidelines or policy from the national office.
In the early l960s, there were few claims and the basis for compensation was the 1959 AAOO
formula. However, in the late l960s claims volume increased and many more cases of noise-
induced hearing loss were identified. In 1969, some Air Force employees suffering high fre-
quency hearing losses were transferred to other jobs as a result of the Air Force’s periodic
hearing tests. They filed claims but could not be compensated because their injury was not
severe enough using the 1959 AAOO formula. The FEC then issued a program directive chang-
ing the hearing loss impairment fromula to 25 dB (re: ANSI-l969) at 1,000, 2,000, and 4,000
Hz. The number and dollar volume of claims processed under this formula are not known.
However, the new formula substantially increased the number and severity of claims, in.
cluding many previously noncompensable high-frequency hearing losses (GAO Audit, 1978).
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In 1972, NIOSH published a document in which the average hearing level of 25 dB (re:
ANSI-1969) at 1,000, 2,000, and 3,000 Hz was recommended to be the beginning benchmark
for hearing impairment for speech (NIOSH, 1972). Soon alter, in 1973, the FEC adopted the
NIOSH frequencies while retaining the rest of the 1959 AAOO formula. This 1973 change is
still in effect.
The only other change since that date has been a reversal in the former FEC practice of
subtracting the 25 dB “low fence” separately from the claimants hearing levels at each fre-
quency, instead of averaging the claimants hearing levels at these three frequencies before
substraction. The previously used subtraction method was in conflict with the concept of the
three frequencies as a composite and interrelated measuie of hearing impairment. It also
resulted in compensating some claims where the three-frequency hearing level average was
less than 25 dB (re: ANSI-l969), but the loss at one or more of these frequencies was above 25
dB. The change back to subtraction of the “low fence” from a three-frequency average was
done in response to GAO audit recommendations (to be discussed later in this chapter).
Another problem is the procedure by which examiners investigate and process claims. The
FEC program directives require examiners to obtain a considerable amount of data from the
employee and the employer concerning causation and extent of impairment. Below is an ex-
ample (FEC Procedure Manual, 1973) of the data to be obtained from the employer before
making an award:
“a) employee’s complete work assignment record, work sites and layout, noise
exposure, length of exposure time
b) sound level surveys of work area (should be made if none are available)
c) hearing conservation and noise control measures taken
d) any other complaints of hearing problems from fellow employees
e) pre-employment and periodic medical exams and audiometric tests
f) 1st exposure of employee to noise
g) whether employee was removed from noise 16 hours before his hearing was
tested.
The employee is also required to provide a narrative description of noise exposure and an
audiogram.” In many cases, FEC district office examiners did not obtain or use this informa-
tion.
Past Problems—Government Accounting Office Findings
The Government Accounting Office (GAO, 1978) audits mentioned earlier reviewed various
aspects of FEC compensation policies and procedures, particularly in the area of hearing
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loss. Specific criticisms of FEC administration and recommendations for change were made
in a 1978 GAO report.
Failure to determine the claimant’s noise exposure was one issue cited by the GAO in its
critical report to Congress. The FEC requires that the claimant show noise levels of 85 dBA
or higher to establish work-related impairment. No exposure duration is specified. In most
cases, employing agencies provided information showing a range of noise levels for a job, but
data in some cases was not sufficient to show a time-weighted average or the actual noise dose
received by the claimant. In the GAO study of FEC claims, the 50 cases from the FEC
Washington and Jacksonville offices were found to lack the time-weighted exposure informa-
tion needed to establish the total noise dose received (e.g., that the employee has received
more than a full workday equivalent dose at 85 dBA). In San Francisco, where data on time-
weighted exposure was available, the auditors found only two of forty-eight compensated
cases where the employee had received less than an 85 dBA daily noise dose.
As mentioned above, audits of the FEC program found that in some past cases (Federal
Worker’s Compensation Program, 1976), an award was made without the required noise ex-
posure information in the file. In various cases, employer-presented facts questioning the
claims were ignored. In one example provided by the Navy and cited by the GAO, the
employer presented evidence that the employee had no hazardous noise exposure, and was
hired with a monaural hearing impairment of 10% in 1965, with a 2.5% increase in five years.
Although this information indicated a pre-employment loss, it was ignored. The employee’s
total impairment was then compensated. In another case, a training director, with no noise
exposure according to the employer’s records, was awarded $35,000 for a 52% loss.
Because agency examiners failed to require adequate documentation and question each
claim, a problem of claimant misrepresentation developed. Congressional committee hear-
ings reported that a government industrial hygienist and his supervisor collected awards of
$25,776 and $3,243, respectively. Medical and lay opinion in the claim files indicated that
neither person had any hearing loss (the hygienist’s claim was held in abeyance by OWCP for
four years, during which he picked up six cost-of-living adjustments).
As an outgrowth of the above-mentioned investigations, a Norfolk shipyard employee was
convicted of falsifying his responses to a hearing test presented as evidence for a compensa-
tion claim. The employee convicted received a 71% award and was later shown to have zero
loss. Six others with large awards and evidence that they misrepresented their losses are
awaiting trial (Norfolk Virginia Pilot, 1978). Because of the concern that some awards were
obtained under false pretenses, the FEC is retesting around 300 Norfolk claimants who
received large awards. If this turns up a substantial number of cases where present hearing
levels are better than hearing levels at the time of the award, the retesting will be expanded.
One of the main problems is that the FEC district office claims examiners relied almost en-
tirely on data presented by the employee and his attorney. Because of case backlogs, items
were rarely investigated and there was generally no personal contact with claimants,
employers, or medical personnel. The FEC’s option of requesting an independent medical
evaluation was rarely exercised and there was no policy on requiring special diagnostic tests in
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cases of discrepancies between audiograms. In one reported case, even after a university
speech and hearing center and an otologist both indicated that the audiograms were
unreliable and the claimant was malingering (the audiologist saw the employee com-
municating normally at a distance of five feet), he was awarded $44,000. In both the House
Government Operations Committee Hearings and the GAO Report, these deficiencies were
discussed, with recommendations for improved investigation and case preparation by the
agency.
One problem brought out by the House Committee hearings was the lack of special training
or qualifications for FEC examiners, even though examiner decisions are quasi-legal rulings
involving large monetary sums and unlikely to be appealed. The House hearings cited the
promotion of clerical and secretarial personnel to examiner positions, use of lateral entry from
unrelated fields, and a policy of “on-the-job” training, rather than specific education in com-
pensation law, investigative techniques, and evaluation of evidence (House Hearings, l976 .
This method of selecting examiners resulted in problems with more complicated occupational
disease claims.
GAO Conclusions and Recommendations
In addition to specific cases, the GAO report covered a number of general conclusions and
recommendations mentioned below:
1) The FEC modifications of the 1959 AAOO hearing loss formula and adoption of the
NIOSH recommendations were critized. The GAO recommended that the FEC return
to the 1959 AAOO formula.
2) The FEC standard for hazardous noise exposure of 85 dB did not specify the time-
weighted average or duration of exposure needed to produce a hearing loss. The GAO
noted that many of the case files did have enough information to judge whether the
NIOSH time-weighted average of 85 dBA for eight hours was exceeded. They recom-
mended that the FEC employ the NIOSH standards for hazardous noise exposure in
determining work-relatedness of hearing loss.
3) In 20 out of 98 claims files, the GAO found evidence suggesting that the audiograms us-
ed for compensation did not reflect true hearing loss. The GAO cited lesser hearing im-
pairment found by university speech and hearing centers, as opposed to private
otologists.
Evaluation of GAO Recommendations
Concerning the GAO recommendations, some comments are in order:
—The GAO recommended the return to the 1959 AAOO formula since it is the oni “used
most often in state worker’s compensation programs” and by the “Veteran’s
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Administraton.” GAO also criticized the FEC formula for being adopted without
“scientific study.” As shown earlier in this report, only a minority of Statesuse the 1959
AAOO formula. The States with the most claims use formulas with high frequency com-
ponents. Also, even the AAOO has now revised its formula, as discussed in Chapter IV.
While the FEC formula may have been adopted without scientific study, the 1959 AAOO
formula was adopted as an “interim” formula twenty years ago without any real em-
pirical study. As Chapter IV discusses, a number of recent studies support the selection
of frequencies included in the FEC formula and demonstrate the inadequacy of the 1959
AAOO formula which GAO has recommended. Furthermore, AAOO’s new formula has
less supporting technical evidence than does the formula now used by the FEC.
—The GAO is probably correct in urging a time-weighted dose as a noise exposure
guideline, rather than just including evidence that the worker was exposed to 85 dBA or
higher. However, the GAO recommendation tries to apply this too rigidly. As the
NIOSH document states, the 85 dBA figure for eight hours “permits. . . a certain
amount of hearing loss in a small percentage of workers over a working lifetime.” Since
worker’s compensation is set up to protect the most hypersensitive individual and not
just the average population, each case must be evaluated individually. There is evidence
that exposures to levels of 75 dBA and above over a working lifetime will result in an in-
crease in the percentage of these workers who exceed the NIOSH hearing impairment
criterion compared to the non noise exposed population (Kryter, 1975). These percen-
tages increase as the noise exposure levels increase.
Also, the 85 dBA eight-hour dose involves continuous noise and does not consider situa-
tions involving impulse noise and whole body vibration, which might substantially ag-
gravate a moderate exposure. In addition, the worker usually leaves the job or retires
before he files a claim, and is in no position to do professional noise surveys or produce
hard evidence of the exact noise levels he worked under during a 20-30 year period, since
this information is usually not available. Thus the worker’s burden of proof of noise ex-
posure should not be excessive, once he has shown evidence of working in a normally
noisy employment. In most high-claim States, the burden is on the employer to produce
evidence that noise levels were not hazardous. Only then does the burden shift to the
worker. From a recent study by this researcher, most FEC claim files appear to have
enough noise exposure information to enable the examiner to make an informed deci-
sion.
—The GAO comments on audiometric testing are more than met by present Hearing Loss
Task Force procedures. It appears that in past cases studied by the GAO, the problem
was much more a function of careless or out-of-date testing by medical professionals,
than in conscious malingering by claimants. A new FEC policy requires each hearing
loss claimant to have a medical and audiometric exam at a clinic approved by the FEC
with a complete set of hearing tests based on the American Speech and Hearing Associa-
tion (ASHA) procedures. This is a thorougher medical and audiological workup than
that required by almost any State.
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Present FEC Program—Hearing Loss Task Force
Because of the House Committee and GAO concerns, the FEC set up a special Hearing
Loss Task Force at the central office in March 1976. This Task Force was initially responsible
for adjudicating all unprocessed hearing loss claims for overloaded offices like Washington,
D.C. and New York. It has now been assigned all FEC loss cases.
The Task Force began with six examiners and support staff. It has gradually added ex-
aminers and has set up an in-house medical unit, with an otologist as director supervising
three audiologists. The Task Force thoroughly reviews all claims coming before it, requests
needed evidence on noise exposure from employing agencies, and reviews the adequacy of
medical evidence (audiograms) presented to support each claim. As mentioned above, in all
cases the Task Force sends claimants to clinics it selects for an examination. Once the claim-
ant has completed all procedures, the claim is reviewed and if it qualifies for an award, the
Task Force then issues a compensation order.
As seen in Table 5, since the Task Force was set up, it has handled almost 7,000 cases, with
more than 7,800 still pending. The Task Force has rejected almost 50% of the claims filed.
The average award is around $7,600, based on a weekly compensation rate of $203.00. The
average 37.7 weeks of compensation awarded, amounts to a 19% hearing loss on a binaural
basis. FEC records also show that around 60% of the claimants have legal representation.
The average legal fee requested is $312, and the “reasonable and necessary” fee awarded
after agency review is $206.
FEC DeniaLs
As part of this research project, a study was done of a representative sample of claims pro-
cessed by the Task Force. The study included 150 approvals and 936 denials. As Table 6
shows, 540 of the 936 denials were due to a failure to meet the claimant’s burden of proof.
Other important reasons for denials were failure to meet statutory filing requirements and
absence of a compensable loss according to the audiogram presented.
Following is a discussion of the various issues in claims denials partly based on decisions of
the appeal board. In some cases, the claims were originally processed by district offices and
may reflect less thorough procedures than the present Task Force.
Burden of Proof: The claimant is required to prove his case under the FEC Act. Denials in
this category include principally the following:
— failure to submit audiograms
— medical evidence of non-occupational disease
— no evidence of hazardous noise exposure.
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Table 5
Operations of Hearing Loss Task Force
March 1976—March 31, 1978
Claims Pending 7,856 (as of 3/31/78)
Adjudicated 6,951
Approved 3,625
Rejected 3,328
Monaural Awards 667
Binaural Awards 2,954
Average Weekly Compensation Rate $ 204
Average No. Weeks 37.5
Average Total Award $7,655
Source: Hearing Loss Task Force Operations Report, March 31, 1978.
Table 6
Claims Denials
Federal Hearing Loss Task Force Case Files
Number of
Reason Denials
Failed to meet burden of proof 540
Audiogram fails to show compensable loss 137
Failure to make claim within statutory
time 169
Miscellaneous 90
Total 936
Source note: Tabulation of closed denials for selected offices from files of FEC Hearing
Loss Task Force in Washington, D.C. in March 1978.
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Many claims were denied because the claimant did not submit an audiometric test. In other
cases, there was medical evidence of non-occupational ear disease (otosclerosis , or the claim-
ant failed to prove exposure to noise levels of 85 dBA or above. The burden of proof category
also includes claims that were suspended because the claimant failed to respond to the agen-
cy’s request for supporting evidence.
The following are examples of cases from the Hearing Loss Task Force files resulting in
burden of proof denials.
Burden of Proof—Case Summaries*
This 54-year old claimant filed for compensation in August of 1974. He was
employed in the Washington Navy Yard as a molder from 1948-54, and 1 year
in 1959. He was reinstated as a molder in the Research Lab from 1967 to
1974. lIe was exposed to electric furnaces, gas furnaces, air hammers, air
chisels, etc., for an average of six hours per day and up to 95 dBA.
He states he has tinnitus and has experienced earaches occasionally.
He was tested for hearing loss annually, but was never issued ear protec-
tors. His latest audio in the records was dated in 1973. This shows a 55 dB
drop at 3k, 30 dB at 4k, and 40 dB at 6k. Normal hearing in the lows for the
left ear. The right ear is essentially normal. However, the claimant failed to
submit a medical report according to the standards of the filing office. He was
given 60 days to file such a report. He failed to do so.
Another case rejected for lack of proof is summarized:
rFhis 55-year old claimant worked for the Boston Naval Shipyard as a
welder from 1942 to 1973. He filed in 1975.
His job was not considered a noise-hazardous job, but he worked in close
proximity to drillers, chippers, etc., where noise levels rise as high as 124
dBA.
In 1975 the claimant was asked to submit factual information in support of
his claim. This information was submitted. In March 1976, the claimant was
asked to submit a medical report (audiogram and doctor’s opinion as to prob-
able cause of loss). No reply was received. In September 1976. the office
*All cases summarized by Marilyn Nieder and Richard Ginnold from case files.
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again requested the information: again, no reply. On September 8, 1977, the
claimant was asked to submit time and factual information. Finally, the at-
torney informed the office that the claimant had died in 1975. Therefore, no
compensation can be awarded to the surviving dependents because a medical
report, time and factual information can no longer be obtained.
Here it appears that the claim was one of many being submitted by an attorney on a mass
production basis, and it took two years for the attorney’s office to learn of the claimant’s
death. Under present procedures, there is no claimant burden to present medical evidence
since all claimants are referred to an approved audiologist by the FEC.
Some of the more recent denials are due to claims submitted under the agency’s 1969 for-
mula—25 dB (re: ANSI-1969) low fence, averaged at 1,000, 2,000, and 4,000 Hz—or the old
averaging method. These claims were then denied under more stringent existing criterion.
For example, one claim was submitted under the old averaging method but denied under the
new method:
A 59-year old claimant filed in November 1974. He was employed as a
machinist for 34 years at the Portsmouth Naval Shipyard. He was furnished
with earplugs in the 1960s and claims to have worn them at all times while at
work.
He was exposed to pneumatic tools; chipping hammers, scaling hammers,
riveters, etc. (100-130 dBA).
He was tested in 1975:
Frequencies (Hz)
500 1,000 2,000 3,000 4,000
Right ear (dB) 10 10 20 25 55
Left ear (dB) 10 10 15 40 55
Under the rule in effect before 1977, the 25 dB fence would be subtracted from each fre-
quency for each ear and if any’ frequency was above 25 dB, there would be some award (e.g.,
in this case the left ear hearing level of 40 dB at 3,000 Hz would amount to a binaural loss of
2.5 weeks of binaural loss, or $500-600). Under the AMA method of averaging the three fre-
quencies before deducting the fence, more acute hearing in lower frequencies balances off the
one frequency above 25 dB and results in noncompensable hearing levels of less than 25 dB in
each ear.
Statute of Limitations: The FEC statutory time limits were more strict than most States
until 1974. The pre-1974 FEC provisions applied to injuries or illness occurring prior to
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September 7, 1974 (for hearing loss, the date of injury is the date of last exposure to the noise
before termination or transfer to non-noisy employment). This law allowed the claimant one
year to file a claim from the date the employee had reasonable knowledge that he was suffer-
ing a work related hearing loss. The agency could waive the time limit up to a maximum of
five years from the date of injury. However, this was limited mainly to cases where the
employer did not know that hearing loss was compensable and did not inform the employee.
Where the employer didn’t tell the employee but knew the hearing loss was compensable, the
Act makes the employee responsible for knowing his rights and asking the employer (Frazier,
1978).
For injuries occurring after September 7, 1974, there is no time limit for filing, if the
employee notifies the employing agency of his work-related loss within 30 days after becom-
ing aware himself. Otherwise, the filing limit is three years. The pre-1974 statute of limitation
was quite severe, but the new requirement is much less restrictive than most State programs.
In one recent Employee Compensation Appeals Board (ECAB) ruling, the effect of the old
time limit is seen clearly. A shipyard rigger filed a written claim with the FEC, and in written
information requested by the agency, stated that he “first noticed a loss of hearing” and
“found it difficult to hear approximately in the year of 1970 and 1971.” He stated that he was
given ear plugs “in 1960” and assumed that they were issued “because the nature of my job
was noise-related.” He also stated” . . . after a period of time on the job, the excessive noise
began to affect my hearing.”
He was retired on disability in 1973, and filed his hearing loss claim in 1976. He explained
that he didn’t file within one year of retirement because “I wasn’t aware that I could file a
claim.” The FEC denied his claim on the ground of the one year time limit. The Board, in
upholding the FEC, stated that “the claimant was aware or should reasonably have been
aware of his hearing loss and its possible relationship to his job not later than Mar’h 15, 1973,
the date of his retirement. . . “The claimant’s only excuse was “that he was not aware that
he could file a claim for hearing loss . . . According to the Board, this type of excuse is unac-
ceptable as sufficient cause or reason to file in time” (Alonzo Smalls and Charleston Navel
Shipyard, 1978).
In one case an employee had a 30-40% loss established by Navy audiograms while at work
(Sammie Berman end Naval Air Station, 1978). In his written submission he admitted that
he knew of the work-related nature of his loss. He explained his failure to file a claim until
two years after his 1973 retirement because “I was not told or aware that I was eligible to file
for my hearing.” Again the Board found that lack of knowledge is not sufficient cause for an
extension.
Interestingly, in many cases where the employee submits the kind of written submission
above, he is not represented by counsel and is trying to give specific facts which might prove
his exposure to hazardous noise. His own statements then become the basis for denial. In
cases where employees are represented by an experienced attorney, the written statements in
the file appeared to include “boilerplate” language for the purpose of assuring that the statute
of limitations is met. For example: “I did not know the loss of hearing I had was due to my
occupation.
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Non-occupational Loss: Another major reason for denial of claims is loss which was present
prior to federal employment, occurred after termination, or was caused by ear disease or by
some other non-occupational factor. In one case, the employee retired on disability in 1973,
and submitted a 1975 audiogram showing a 10% bilateral hearing loss which the doctor at-
tributed to “cause undetermined.” The office reviewed the file and granted the claimant a
10% award. The claimant was not satisfied and went to another otologist, who obtained an
audiogram showing a 21% loss in 1976. The office refused to increase his award on grounds
that his noise exposure ceased in 1973 and any further loss was non-occupational. The deci-
sion was upheld by the ECAB (Sabatini and Philadelphia Navy Yard, 1978).
In another case, a Navy operating engineer employed from 1966 to 1972 submitted a 1975
audiogram showing a severe hearing loss in each ear, which the doctor felt was “job-related.”
The FEC office found a 1960 audiogram showing a severe loss in his right ear prior to
employment. It also found that according to the 1960 audiogram, a second test in 1972, and a
new examination ordered in 1977, the claimant had no loss in his left ear. The FEC selected
the latest audiogram and denied the claim, on grounds that the right ear loss was present
prior to employment. This decision was upheld on appeal (Moore and Philadelphia Navy
Yard, 1978).
Even when there is evidence of non-occupational loss, if the office grants the claim there is
no appeal, except by the claimant? For example, an FBI agent with a long history of middle
ear disease and major ear surgery filed a claim. His audiogram showed no loss in the right ear
and a 33% loss in the left ear. In spite of his doctor’s statement relating the loss to “middle
ear disease,” the FEC medical advisor approved the monaural award. The claimant ap-
pealed the case for a binaural award. The Appeals Board recognized that the evidence in-
dicated his loss was caused by middle ear disease, but could not rule on the issue. As the Ap-
peals Board said:
the case record contains substantial medical evidence that the applicant’s
hearing impairment was caused by his middle ear disease. However, the Of-
fice granted him a schedule award, so that the only question here involved is
whether he had a greater hearing loss than that found by the Office (Chap-
man and FBI, San Antonio, 1978).
Questions Concerning the Hearing Loss Formula: Various decisions of the Appeals Board
have upheld the right of the FEC to use the present NIOSH standard for its compensation
formula. The revised FEC averaging formula for calculating loss has been upheld even for
cases initially submitted under the old method (Beggs, 1977).
Study of FEC Hearing Loss Task Force Claims Approvals
As mentioned earlier, a study was made of 150 recently approved claims from the Hearing
Loss Task Force files. Claims were reviewed from all district offices under the task force.
Table 7 shows a summary of data from those 150 cases. Employees had a mean age of almost
54 years, with approximately 20 years of exposure to hazardous noise, and the same period of
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Table 7
Profile of FEC Approved Hearing Loss Claims Closed July, 1978—March, 1978
Study of Hearing Loss Task Force Files
Number of Claims Studied 150
Mean Age (At Time of Close) 53.8
Mean Number of Years Employed in Noisy Employment 20.3
Mean Number of Years Employed by Federal Government 20.5
Mean Weeks Compensation Received 28.9
Mean Benefits $4,578.00
Mean Audiometric Hearing Levels in
Readings dB
(re: ANSI-1969)
Right Ear
500 Hertz 21.9
1000 23.5
2000 33.2
3000 51.1
4000 59.4
Left Ear
500 Hertz 21.6
1000 23.0
2000 33.9
3000 52.2
4000 60.0
Source: Computer study of 150 FEC claims from Hearing Loss Task Force files.
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employment with the federal government. In this study the mean number of weeks compen-
sation was approximately 29, equivalent to more than 14% binaural loss, with average
benefits of $4,578.
The audiometric averages in Table 7 show that the average hearing levels for the FEC
claimants exceed the 1959 AAOO hearing impairment criterion. Thus, many of the claims
should have been compensable even using the AAOO formula. However, since the average
audiometric readings at 3 KHz were over 50 dB, the size of the hearing impairment using the
NIOSH criterion was substantially larger than would have been obtained using the 1959
AAOO criterion.
The average claim in the pilot study was substantially smaller than the average claim of
around $7,600 found in the GAO study and FEC compensation records over the past two
years. In part, the results of this small investigation may show more conservative audiometric
findings, and greater agency scrutiny of large claims by the Task Force. For example, FEC
records show that in the month of March 1978, 380 hearing loss claims were handled, of
which almost 70% were rejected, far above the overall 48% rejection rate of the Task Force.
In the pilot investigation conducted for this report, a graduate audiologist examined the
claims and noted cases where audiograms appeared to be unreliable or insufficient to make a
valid award. In most cases, the record of hearing levels and noise exposure was complete. Out
of 150 cases, only nine cases had somewhat questionable audiograms. In every case but one,
the claimants were sent for additional exams by the FEC until discrepancies were resolved.
In the single exception, a claim was filed by a shipyard worker in 1971, and he was sent for
two tests in 1972 and 1974. Because of the discrepancies between exams, the doctor from the
Hearing Loss Task Force ordered another audiogram. Before the claimant went for another
test, he died. The widow pursued the claim and was awarded $17,000, in spite of the fact that
the case was unresolved as to the precise hearing level of the claimant. In a few other cases,
our researcher noted, even though claimants were sent for other tests, the audiologist did not
perform all the standard tests, e.g., speech reception threshold and speech discrimination, or
failed to do any one of several tests commonly used to counter possible malingering. The 150
cases investigated for this report were processed prior to the Task Force hiring of three
audiologists in April 1978. One duty of the audiologists is to prescribe diagnostic testing prac-
tices for such purposes.
Possible Influence of Hearing Conservation in Claims Activity:
Another point examined in this Study is the extent to which the employing agency provided
records of hearing exams and hearing protection worn. As Table 8 shows, over 70% of the ap-
proved claims were from shipyard workers. Around 75% of these claims had employer audio-
grams in the file. Almost as high a percentage had worn hearing protection for at least some
time prior to the claim. Over 80% of air base workers (the next largest group) showed hearing
exams and proof of hearing protection worn at work. This is an example of the variety of
employer/employee information available from which to document the validity of a claim.
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Table 8
Federal Hearing Loss Claims by Occupation and
Employer Hearing Conservation Programs
Employer Hearing Exams Hearing Protection Worn
Occupation Yes No Total Yes No Total
Shipbuilding 82 28 110 75 36 111
Air Base
Workers 21 3 24 20 4 24
‘rreasu Agents 1 1 2 1 1 2
Other 10 3 13 9 4 13
TOTAL 114 35 149 105 45 150
Interestingly, the study data shows that the 114 claims with employer hearing tests in the
file averaged $4,232, whereas the 35 claims with no employer hearing information averaged
$5,617. For each age group, the claims with no employer test information averaged around
20% higher, with a major difference for the small number of claims approved for employees
under 40 years. For the claims filed by employees under 40 years the three without employer
hearing tests averaged $71,000, while the five with employer tests averaged $5,400. Inter-
pretation of these figures is difficult without looking further into the cases.
In part, these limited results may mean that the employers who have hearing conservation
programs and do audiometric testing are also reducing the noise exposure and eventual hear-
ing loss of exposed employees through hearing protection, job transfer, and noise control. It
might also mean that employer hearing tests in the file give the FEC a better basis for
evaluating the employee’s medical information and in some cases allow rejection of exag-
gerated claims.
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Longshore and Harbor Workers Program
The other federal compensation program is under the Longshore and Harbor Workers
Compensation Act. This program is also under the Office of Workers Compensation Pro-
grams (OWCP) and covers longshoremen, maritime workers, and private shipyard workers.
In contrast to the FEC program it is an adversary program, where covered employers must
either have compensa 1 .ion insurance or meet standards of sell-insurance. The employer is a
party to every claim. The Longshore program has higher benefits and less restrictive stan-
dards than most State programs. Employee choice of physician, more adequate impairment
standards and definitions of disability are examples. However, the employee must still prove
his claim. The employer has a right to controvert the claim, have a formal hearing, and to
present related evidence. The employer does not have a right to have the employee examined
by his physician, although the OWCP may have the claimant examined by an independent
specialist of their choice.
In terms of hearing loss criterion, the Longshore program once used the 1947 AMA for-
mula (weighted average of 500, 1,000, 2,000, 4,000 Hz), which was revoked in 1961 and
replaced by the 1959 AAOO formula. While the 1947 AMA formula was officially in effect
until 1976, the Longshore program was affected by the changes going on in the FEC pro-
gram. In contrast to central office policy, it was found in 1976 that nine out of 14 District Of-
fices of the Longshore program were using the NIOSH formula adopted by the FEC )GAO
Audit 1978; and Shelton vs. Washington Post Co., 1977). An example of a lack of agreed
standards is shown in one case where an Administrative Law Judge, hearing a private
shipyard case, ruled that it was proper for the District Office to apply the State standard, in
this case California s four-frequency standard (Robinson vs. Bethlehem Steel, 19 6). The
Benefit Review Board (BRB) responsible for longshore appeals upheld the judge, commen-
ting that there was no legal provision or administrative rule fixing the hearing loss standard to
be used. In December, 1976, the OWCP issued a bulletin (LHWCA Bulletin, 1976) for the
Longshore program, directing district offices to use the NIOSH formula in determining hear-
ing impairment. This guideline was issued without usual rule-making procedures, and was
opposed by the American Mutual Insurance Alliance, which had been strongly objecting to
the federal policies on hearing loss compensation.
The NIOSH formula was used informally by District Offices and has been applied in many
agreed settlements and compromises. However, in the latest precedent-setting award, the
BRB upheld an Administrative Law Judge who used the 1959 AAOO criteria in awarding a
Washington Post pressman’s claim. In this decision (Shelton vs. Washington Post Co.,
1977), the BRB chided the OWCP for not establishing a formula in accordance with the
rulemaking process under law and suggested that the OWCP Director “conduct hearings
and/or invite comments in response to proposed regulations” and “provide an opportunity
for all interested parties” to participate in developing an appropriate standard. The BRB
threatened to do this itself in “an appropriate future case” if the Director failed to
“promptly” carry out its instruction. In a later Washington Post case, the Administrative
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Law Judge reviewed several alternative formulas and finally issued the claimant an award for
a 40% loss, two percent in excess of the loss shown according to the NIOSH formula. This
case is on appeal to the BRB (Swift vs. Washington Post Co., 1978).
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CHAPTER VI— COMPARISON OF FEDERAL AND WISCONSIN CLAIMS
In order to better understand the differences between resulting claims awards at the federal
level and in a major State program, similar data were coded and tabulated from 431 Wiscon-
sin claims from 197 5-77 and the 150 federal claims mentioned earlier. The Wisconsin claims
illustrate a typical adversary system with a two-month waiting period holding most claims
until retirement, compared to the FEC program where claims can be filed at any time. There
is also a comparison between four formulas: the NIOSH formula used by the FEC; the 1979
AAOO formula; the 1959 AAOO formula which was used by Wisconsin until late 1975; and
the CHABA criterion (1,000, 2,000, and 3,000 Hz at 35 dB (re: ANSI-1969) adopted by
Wisconsin in September, 1975, which is presently in effect.
Table 9 shows a breakdown of 164 Wisconsin claims paid under the AAOO formula and
237 paid under the CHABA formula. The average percentage losses are very similar for both
formulas. This has been confirmed in a study conducted by Dr. Larry Royster of North
Carolina State University (1978) analyzing the audiometric records of over 10,000 workers ex-
posed to noise. He determined that the 1959 AAOO formula produced a comparable number
of claims to one where a 34dB (re: ANSI-1969) low fence was used averaged at 1,000, 2,000,
and 3,000 Hz.
The average loss for both the AAOO and the CHABA group in the present study is approx-
imately 17-19 percent, based on a maximum of 216 weeks of benefits and around $14,000 in
total payment for total binaural loss. The average payment of $2,395 for the CHABA group is
approximately 6% higher than the average payment of $2,246 for the AAOO group. This
shows that the addition of the 3,000 Hz frequency and elimination of 500 Hz in the CHABA
formula is almost completely offset by the increase in the low fence of beginning impairment
from 25 dB to 35dB (re: ANSI-1969), so that in effect, compensation costs remain almost the
same. This of course is what the Navy requested when it contracted with the CHABA group
to develop this formula. The speech discrimination and speech reception scores in Table 9
show that the Wisconsin claimants were suffering sizable handicaps in communication. On
the average, claimants scored only 65% in speech discrimination testing and had speech
reception thresholds of 40 dB or greater, far below normal performance.
Table 10 shows Wisconsin claims by type of settlement and test results. The data indicate
that many hearing loss claims are paid without litigation. Out of 425 cases where data were
available, only 58, or 14%, went to a hearing and award. Around 29% were paid without
contest by the employer, and another 39% were paid upon the filing of a petition for hearing
by the claimant. In these latter cases, there was no hearing and the cases were settled by a
simple stipulation of fact by the two parties. Around 18% were compromise settlements.
In several tables, we can compare Wisconsin and federal claims. Table 11 shows the age
breakdown of both groups.
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Table 9
Comparison of Wisconsin Hearing Loss Claims Under 1959 AAOO and
CHABA Criterion 1975-1977
Category Old Formula (AAOO) New Formula CHABA) Total
No of Claims 164 237 401
Mean No. of Wks 36.4 19.6 26.6
Compensation
Mean Benefits $2,246.00 $2,395.00 $2,334.00
Mean Audiometric Findings - Hearing Levels in dB (Re: ANSI-1969)
LE - 500 Hz 28.6 27.4 27.9
1000 37.6 34.0 35.5
2000 57.0 53.9 55.2
3000 67.7 66.1 66.7
RE - 500 Hz 29.5 27.8 28.5
1000 38.8 34.0 36.0
2000 55.8 51.7 53.4
3000 66.5 64.6 65.3
Mean Speech Discrimination Scores (in percent correct response)
RE 65.0 66.5 65.9
LE 63.5 64.4 64.0
Mean Speech Reception Thresholds (in dB)
RE 43.2 40.4 41.5
LE 43.6 42.4 42.9
Source: Computer study of Wisconsin Claims. 1959 AAOO formula used until September 11,
1975 when new rule providing for CHABA recommendation went into effect. See
Table 4 for discussion of formulas.
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Table 10
Wisconsin Hearing Loss Claims Closed. 1975-77
By Settlement Type and Claim Characteristics
Hearing
Category Uncontested Stipulation Compromise Award Total
Number of claims 121 166 80 38 425
Mean Benefit $2,255.00 $2 ,880.00 $2,403.00 $2,194.00 $2.518.00
Mean Audiometric Findings - Hearing Levels in dB IRe: ANSI-1969
LE - 500 Hz 28.9 27.1 31.5 26.3 28.2
1000 34.7 35.2 39.4 36.5 36.0
2000 54.4 55.2 55.9 58.6 55.5
3000 67.0 66.6 66.s 68.. 67.0
RE - 500 Hz 29.2 28.0 31.6 26.5 28.8
1000 36.5 36.0 39.4 33.9 36.5
2000 54.1 52.4 56.6 34.1 33.8
3000 66.2 65.2 66.1 (4.0 63.3
Mean Speech Discrimination Scores in percent correct response
RE 65.0 62.8 65.6
LE 65.1 63.6 66.2 57.( 63.7
Mean Speech Reception Thresholds in dB)
RE 40.3 42.7 43.9 40.9 42.0
LE 42.4 43.6 43.4 43.6 43.2
Source: Computer study of Wisconsin Claims.
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—As shown, over two-thirds of Wisconsin claimants are over 60 years old, compared to
20% of the federal claimants. Twenty-nine percent of federal claimants are under 50 as com-
pared to 9% for Wisconsin. The federal employees are filing at a much younger age than the
Wisconsin claimants. This is probably a direct outgrowth of the two month waiting period in
Wisconsin.
—Table 12 compares the audiometric readings of Wisconsin and federal claimants, at
1,000, 2,000, and 3,000 Hz. The Wisconsin cases have by far the most severe losses, with
three-quarters or more exceeding 40 dB hearing levels (re: ANSI-1969), compared to approx-
imately 30% of federal claimants. Similarly, only 6% of the federal claimants have hearing
levels poorer than 56 dB in either ear, whereas, 33% of the Wiscongin claimants have signifi-
cant hearing losses of this magnitude. This reflects the fact that under the FEC formula
federal claimants can file when they suffer beginning impairment, while Wisconsin
claimants, because of the CHABA formula and the two-month rule, can file only after they
have developed a fairly severe loss.
It might be theorized that the Wisconsin impairment criterion and waiting period may ac-
count for the more severe losses and the reduced likelihood of employers implementing
stricter noise control measures and administering stricter hearing conservation programs.
The employer does not feel the costs of compensation until the employee retires which in
Wisconsin is usually after the age of 60. At the federal level the costs are realized sooner. The
Wisconsin formula allows more severe hearing loss before the worker is eligible to file.
Some claimants in both systems have hearing levels below 23 dB (re: ANSI-1969). The
percentage of federal claims with losses under 25 dB (re: ANSI-1969( is approximately twice
the percentage of Wisconsin claims due to the old FEC averaging formula and large dif-
ferences between ears (where the better ear might have an HL under 25 dB) for both Wiscon-
sin and Federal claims.
—Table 13 shows audiometric readings at 500, 1,000, and 2,000 Hz.Once again the Table
illustrates the poorer hearing levels of Wisconsin claimants versus federal claimants. Also, it
may demonstrate that many federal workers are filing claims for mild to moderate high fre-
quency losses, whereas the Wisconsin worker usually cannot file unless the high frequency
loss is more severe. If these federal employees were to file under the 1959 AAOO criteria,
many would probably not be eligible for compensation.
—Table 14 shows differences in dollar benefits. The maximum allowable benefit in the
federal government for hearing loss compensation is $133,000 compared to $14,000 in
Wisconsin, a ratio of almost 10 to 1. Because of the difference in benefit rates, even though
the Wisconsin average impairment is more severe, the average claim is much smaller. Half
the Wisconsin claimants receive less than $2,000, and 92% less than $5,000. On the other
hand, almost 40% of FEC claimants received over $5,000, and 12%were awarded over
$10,000. Only one-hall of one percent of Wisconsin claimants received over $10,000. This
brief overview dramatizes the substantial monetary inequities in two different compensation
systems.
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Table 11
Comparison of Claimant Age for Wisconsin and
Federal Hearing Loss Claims
Age Groups Federal Wisconsin
Number Percent Number Percent
Under 40 years 8 5 9 2
41-50 35 24 32 7
51-60 76 51 105 24
over 60 31 20 270 67
TOTAL 150 100 416 100
Source: Computer study of FEC and Wisconsin claims
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Table 12
Comparison of the Severity of Federal and Wisconsin Hearing Loss Claims
For Selected Frequencies: 1,000, 2,000, 3,000 Hz
Federal
Right Ear Left Ear
Number Percent Number Percent
Total Claims 150 100% 150 100%
Mean Hearing Level in dB
(re: ANSI-1969)
Less than 25 dB 30 20 24 16
26-40dB 79 53 79 53
41-55dB 32 21 40 27
56-75dB 7 5 7 4
76-99dB 2 1 0 0
Wisconsin
Right Ear Left Ear
Number Percent Number Percent
Total Claims 431 100% 431 100%
Mean Hearing Level in dB
(re: ANSI-1969)
Less than 25 dB 39 9 35 8
26-40dB 69 16 51 12
41 - 55 dB 191 44 202 47
56 - 75 dB 121 28 128 30
76-99dB 11 3 15 3
Source Note: Mean Hearing Levels are averaging of the 1,000, 2,000, and 3,000 Hz fre-
quencies. Data are coded from Wisconsin and Federal hearing loss claims.
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Table 13
Comparison of the Severity of Federal and Wisconsin Hearing Loss Claims
Using Average of 500, 1,000, and 2,000 Hz Hearing Levels
Federal
Right Ear Left Ear
Number Percent Number Percent
Total Claims 150 100% 150 100%
Mean Hearing Level in dB
(re: ANSI-1969)
Less than 25 dB 93 62 83 55
26-40dB 42 28 53 35
41-55dB 12 8 11 8
56-75dB 1 1 3 2
76-99dB 2 1 0 0
Wisconsin
Right Ear Left Ear
Number Percent Number Percent
Total Claims 431 100% 431 100%
Mean Hearing Level in dB
(re: ANSI-1969)
Less than 25 dB 39 9 72 17
26-40dB 69 16 182 42
41 - 55 dB 191 44 131 30
56-75dB 121 28 43 10
76-99dB 11 3 3 1
Source Note: Data are coded from Wisconsin and Federal hearing loss claims.
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Table 14
Comparison of Dollar Benefits For
Wisconsin and Federal Hearing Loss Claims
Wisconsin Federal
Dollars in No. of No. of
Benefits Claims Percent Claims Percent
$2,000 and less 212 49.2 57 38.0
$2,001 5,000 185 42.9 34 22.7
$5,001 - 10,000 32 7.4 41 27.3
$10,001 . 20,000 1 .3 lO 10.7
$20,00l-40,000 I .2 2 1.3
TOTAL 431 100.0 150 100.0
Source: Data coded from study of Wisconsin and FEC-approved claims.
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—Table 15 shows the average percentage impairment and the audiometric hearing losses
for Wisconsin claims calculated according to the four main formulas. There is little difference
between the percentage losses using either the 1959 AAOO and CHABA formulas, but the
NIOSH formula results in a mean percentage loss of approximately 37%, or 12-13% higher
than the other formulas would yield. The 1979 AAOO formula results in a 7% increase in
percentage loss over the 1959 AAOO formula, even though it is still 6% below the percentage
impairment computed using the NIOSH criterion.
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Table 15
Comparison of Mean Hearing Loss for Wisconsin
Hearing Loss Claims, 1975-77, By Formula Used
Compensation Formula Used
Category Old AAOO New CHABA Total
Number of Claims* 164 237 401
Mean Hearing Levels in dB
(re: ANSI-1969)
‘59 AAOO - L Ear 40.4 37.6 38.7
‘59 AAOO - R Ear 51.0 48.1 49.3
NIOSH - L Ear 51.4 59.8 50.5
NIOSH - R Ear 51.0 48.1 49.3
‘79 AAOO - L Ear 47.7 45.4 46.3
‘79 AAOO - H Ear 47.6 44.5 45.9
Mean Hypothetical Binaural
Hearing Loss (In PercenU
‘59 AAOO 25.5% 22.8% 23.9%
NIOSH 39.1% 35.1% 36.8%
CHABA 28.1% 23.5% 25.4%
‘79 AAOO 33.1% 29.6% 31.0%
* 2 4J%4A = 500 + 1K + 2K/3 - 25 for each ear; better ear correction of 5/1; each 1 dB loss
= 1.5%
NIOSH = 1K + 2K + 3K/3 - 25 db for each ear; better ear correction of 5/1; each 1 dB
loss = 1.5%
CHABA = 1K + 2K + 3K/3 - 35 for each ear; better ear correction of 4/1; each 1 dB loss
= 1.75%
Source: Computer study of Wisconsin and FEC claims.
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CHAPTER VII — CONCLUSIONS AND RECOMMENDATIONS
Study Conclusions
This report has examined individual State and federal hearing loss compensation programs
and claims activity. The scientific information on various key hearing loss compensation rules
has been reviewed. Finally, a specific study was made of Wisconsin and FEC claims.
A number of conclusions can be drawn:
1) Since the first claims for occupational hearing loss were brought 30 years ago, eligibility
for hearing loss compensation has expanded considerably and claims have increased.
However, the great majority of claims paid are from just two States, California and New
Jersey, and the Federal Employee Compensation (FEC) program.
2) Only nine States compensate more than a token number of claims. These states include
less than 30% of all manufacturing workers. Hearing loss is non-compensable in nine
other States with 29% of the industrial workers. Thirty-two States with around 41 % of
the U. S. manufacturing employment compensate few or no claims. Thus 70% of the
country’s most severely noise-exposed workers live in States where hearing loss compen-
sation is not normally paid.
3) The major obstacle to hearing loss compensation in nine States is the requirement to
prove economic loss or total impairment. Since most hearing-impaired workers continue
on their jobs without direct wage loss and since present hearing formulas set total im-
pairment at a level almost never reached (92 dB re: ANSI-1969), no one qualifies for
compensation.
4) In the States in which hearing loss is legally compensable but there are few or no claims,
the factors which limit claims are more complex. In some cases, the States have special
statutes with six-month waiting periods, restrictive hearing loss formulas, a difficult
burden of proving noise exposure, and deductions for aging. These all combine to make
the filing of claims difficult. Short filing time limits and employer choice of physician are
other negative features.
5) The nine States which compensate the most hearing loss claims differ from the low-
claim States in major ways. They generally have hearing loss formulas which include a
high frequency element, they allow employee choice of physician and their filing time
limits are usually less restrictive. Only two of these States have a hearing loss waiting
period.
6) The FEC program has experienced rapid growth in claims for many of the same reasons
as the California and New Jersey programs. They have used a formula compensating
high-frequency loss, they have no statutory waiting period, and they allow employee
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choice of physician. A further factor is that the FEC program is a non-adversary system
where employers have no role in defending themselves against claims and the agency has
wide discretion in what evidence to accept and the extent of investigation of the claim.
Because FEC procedures were reviewed and criticized by the GAO and Congressional
committees, a Hearing Loss Task Force was set up to handle hearing loss cases. While
they are using the same compensation criterion, there is a more thorough investigation
and medical review of all claims. The rejection rate is now running at 50-70% and the
number of claims paid has slowed down, though new claims are still at a fairly high
level.
7) The annual number of claims paid is now around 6,000 for all State programs and over
2,000 for the two federal programs. This figure is still considerably below the peak
potential, even by conservative estimates. The rise should continue in the State pro-
grams, with increases in worker awareness and State reforms which allow easier filing.
The federal claims are closer to their peak. This is due to tighter administration, more
employer attention to noise control and hearing conservation and decreasing federal
shipyard employment. In Chapter II, a 10-year estimate of claims shows State claims
rising to 16,000 and federal claims to 6,000 by 1987. The 10 year totals are 107,000
claims for the States and 40,000 claims for the federal sector.
8) In our projections of claims growth, annual benefits are estimated to rise from $13
million in 1977 for State programs to $66 million in 1987. For federal programs the rise
is from $18 million to $90 million. At a minimum, cumulative benefits are projected to
be more than $835 million over the next ten years. However, the 1977 total State claims
benefit figure of $13 million for hearing impairment is only two to three tenths (.2 to .3)
of one percent of all worker’s compensation cash benefits of around $6 billion, a minute
factor in worker’s compensation costs.
9) The study’s review of scientific evidence indicates that the States which have adopted
high frequency formulas including at least 3,000 Hz are much more in line with current
research than the 1959 AAOO formula. Although the AAOO recently revised their for-
mula to include 3000 Hz, the NIOSH criterion has more supportive evidence in
representing the actual hearing handicap. Other program features which are not sup-
ported by scientific evidence are the lengthy waiting periods for some States and the ag-
ing correction used by a few States.
10) A comparison of Wisconsin and Federal claims showed that Wisconsin claimants are
older than federal claimants and have much lower hearing levels, but receive only half
the average benefits. The study also showed that the CHABA formula produced almost
the same average benefits as the 1959 AAOO formula. The NIOSH and the new 1979
AAOO formula result in substantially higher percentages of hearing loss than the 1959
AAOO formula.
11) In a sample of federal claimant records, the average claims award was shown to be
reduced by 20% where employer hearing conservation/hearing test records were
available. Hearing conservation programs may be responsible for this difference.
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Recommendations
Worker’s compensation must he more responsive to the hearing-impaired worker. Approx-
imately IS million Americans are exposed to hazardous noise levels at work, yet over 70% of
them have rio effective rights to hearing loss compensation due to restrictive State laws and
rules.
Compensation is not only just but is a potentially important economic incentive for
employers to control workplace noise. The cost of hearing loss compensation and the fear of
future increases should encourage employers to introduce noise control and hearing conserva-
hon programs. However, as long as hearing loss compensation represents only .3 of 1 percent
of total worker’s compensation costs and does not affect most employers, this incentive effect
will not be important.
I’o overcome the above limitations, there is an urgent need to adopt compensation rules
and policies which reflect current research and do not discourage rightful claims. Some of the
following recommendedations should be given serious consideration.
1. A hearing loss formula which considers high frequency loss (3,0(X) Hz and 4,000 Hz).
The 18 States presently using the 1959 AAOO formula should consider at a minimum, adopt-
ing the revised 1979 AAOO formula. The new AAOO formula is a long overdue step in the
right direction, but there is evidence that the NIOSH formula more adequately reflects the
degree of impairment experienced by the hearing impaired.
2. rfhe high fence of 92 dB (re: ANSI-1969 ) now in use is too high and should be lowered
to reflect the point at which practical hearing ability is lost for adequate speech communica-
tion.
3. The better ear correction of 5/1 has no empirical justification. An equal weight for each
ear may be more appropriate unless some justification for the 5/1 correction can be provided.
4. Attention should be given to discontinuing the practice of correcting for aging. Most
workers suffer the largest component of their hearing impairment during the first ten years of
their work exposure to hazardous noise levels. Penalizing these claimants at the time of retire-
ment will not make up nor correct for their reduced hearing sensitivity over the previous
20-30 years.
5. Lengthy waiting periods (2 mo., 6 mo.) under various State laws are unjustified if the
concern is contamination by a temporary threshold shift. The time away from noise
necessary to eliminate temporary threshold shift should be approximately 2 weeks.
6. Short filing time limits in many States are frequently used to bar otherwise rightful
claims. To avoid this, States should consider eliminating statutes of limitations, including
minimum and maximum exposure requirements for hearing loss (and other occupational
diseases), where the claim is otherwise proven. There should be a requirement of perhaps 1-2
years to begin the claim, but only after the worker has been informed by a qualified person,
both of his hearing impairment and his specific duties and claim rights under the compensa-
tion law.
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7. States should consider giving compensation claimants the full right to choose their
treating physician/ audiologist from any licensed professional in the state. Licensed
audiologists should have the same right to present testimony and evaluate the worker’s hear-
ing impairment as a physician. In general, audiologists have more reliable testing facilities to
conduct the necessary diagnostic tests and better understand noise induced hearing impair-
ment. In the case of ear disease or other medical ailments where a physician’s testimony or
advice is needed, the audiologist could arrange for his involvement. This would greatly in-
crease the worker’s opportunity to secure a fair evaluation of occupational hearing problems.
8. Most States provide compensation claimants with the medical care needed to cure and
relieve them from the effects of the work-related disability. Because sensorineural hearing
loss cannot be reversed, some States have failed to provide medical care, even where it is
potentially helpful. States should consider providing to all claimants an opportunity to
receive the most effective hearing aids and aural rehabilitation; e.g.. speech reading training.
While this does not remove the claimant’s impairment, he will be in a better position to cope
with his handicap and conduct his daily responsibilities.
9. The definition of hazardous noise should consider including at a minimum, continuous
noise at 85 dBA or above for 8 hours, and should allow for special risks such as overtime shift
exposures, combinations of impulse and continuous noise and especially sensitive ears. Once
the worker proves a lengthy period of employment in noise, the employer should have the
burden of showing an absence of hazardous exposure through his own records of noise
monitoring. If the employer does not have this evidence, the claim should be allowed. For in-
dividuals with especially sensitive hearing, as discussed in Chapter 3. a 75 dBA floor for
hazardous exposure might be used.
10. The report shows that even in the States with many claims most are filed by a small
group of unionized claimants, usually with the assistance of the union or attorneys. The great
majority of hearing-impaired workers know little or nothing about their compensation rights
and how to file a claim because neither the State Worker’s Compensation Agency nor insurers
have public information programs. Each State Agency should consider beginning a program
to make workers aware of their hearing loss compensation rights. This can be accomplished
through:
a. Simple brochures which spell out the causes of occupational hearing loss, how to
tell the symptoms, how to get a hearing exam and what it means, how to file a com-
pensation claim, explanations of the compensation law and benefits, and where to
obtain further information.
b. Awareness posters to be placed in high noise plants, unions and public places. with
brief information on what occupational hearing loss is and a worker’s right to com-
pensation.
c. Seminars with unions and public groups to build awareness of the issue.
11. In view of the great disparity between the compensation provisions at the State level
and increasing information about the adequacy of various hearing loss criteria, attention
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should be given to creating a uniform federal standard for hearing ioss. This is similar to the
presumptions and standards being studied in the Department of Labor for other occupational
diseases. Since federal worker’s compensation standards are not likely in the near future,
there is a place for a Mo 1el State Hearing Loss Statute. This Statute should incorporate the
basic information on hearing impairment mentioned in earlier recommendations, including a
scientifically supportable formula, more appropriate waiting periods, statutory filing limits,
definitions of hazardous noise and recommended benefit ranges. The Model Statute would be
useful for States considering law changes and for the Council of State Governments
guidelines.
12. Workshops would be a very useful technical assistance method to allow State compen-
sation officials to compare the adequacy of various State statutes and to provide a technical
basis for reform. Very little technical support and guidance has been given to State officials in
developing State compensation policies for hearing loss. Workshops on a regional basis
should be conducted with trade union officials lobbying for State programs to exchange infor-
mation on worker’s compensation laws, including hearing loss.
13. It is recommended that the Bureau of Labor Statistics (BLS) consider extending to all
50 states, the Computerized Supplemental Data System which has already been initiated in
over 30 States. Records of previous claims should be included in the data base. Furthermore,
the BLS should develop a single code to distinguish between traumatic conductive hearing
losses and sensorineural hearing losses caused by long term noise exposure.
14. In addition to the areas mentioned above, a large scale research program should be
given serious consideration to improve our knowledge of the social handicap caused by hear-
ing loss. The relationship between the percentage of audiometric impairment and the speech
discrimination and social difficulties faced by the hearing impaired worker should be more
definitively established. Then as the costs of compensation increase, the investment made in
this area would be minimal.
Administrative Considerations
This study reviewed the FEC program in more detail than any other. In general the FEC
program has been far ahead of the States in recognizing the severity of occupational hearing
loss and developing fair and effective provisions. FEC has also taken some major steps to deal
with the claims processing problems mentioned earlier. The present discussion of recornmen-
dations to improve the FEC system is also applicable in part to States facing increases in the
number of claims. A number of administrative considerations are noted below:
I Because of the GAO audit criticisms and the appeals board demands to come up with a
single agreed formula, the Department of Labor is issuing research type contracts to
develop criteria for hearing loss compensation. However, no new field studies will be
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undertaken. The research will consist of reviewing the scientific literature and in depth
analysis of the data from previous studies. Additional research is recommended where
pending technical issues cannot be resolved using existing data. In addition to the
technical research, the agency should consider developing an administrative rule sup-
ported by the interested parties. One suggestion would be that a Hearing Loss Standards
Advisory Committee, with participation by federal employers, federal unions represent-
ing key employee groups, and medical experts be set up to follow ongoing research and
to discuss and comment on proposed OWCP hearing loss rules and procedures as the
results of related research become available. Labor and management input on rules and
procedures would reduce litigation and allow any rules to become operational much
sooner.
2) In the FEC program, the liberalization of the statute of limitations for post-1974 claims
will probably result in more claims filed years after the disability. Problems caused by
the aging factor, postemployment impairment growth, and difficulty in proving hazard-
ous noise exposure can be predicted to add complications. Since the employer has no
right to a hearing, the open-ended nature of claims rights seems to place an undue
burden on claims examiners to adequately investigate the claim. To tighten up admin-
istration, several changes in the rules might be considered:
a. Requiring federal agencies to carry out pre-employment and follow-up audiograms as
well as workplace noise monitoring and making it clear that pre-employment and
post-employment impairment will not be compensated, based on these examination
results.
b. Giving employers the right to effectively present evidence and challenge facts with
which they disagree.
c. Making examiner decisions reviewable at the request of the employing agency, or at
least on issues relative to whether they made the decision on a consideration of all
evidence presented.
d. Setting higher qualification standards for examiners, including more legal and
audiological training and more specialization.
e. Having an OWCP certification program for otologists and audiometric clinics, and
follow-up inspections to see that equipment and personnel are competent and that
test procedures are adequate.
3) Once a claim is awarded, it is important to have periodic cost-of-living raises to maintain
the purchasing power of a long-term benefit. However, the present policy of basing com-
pensation on the loss at time of award allows greater increases in benefits and may
discourage rapid pursuit of settlement by the claimant and his attorney. Where delays
occur due to claimants failure to provide required evidence or pursue the claim, com-
pensation might be based on the loss at the initial date of filing. This would encourage
rapid settlement.
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4) Under the present system, the employing agency does not pay any part of a permanent
award and has no economic incentive to provide documentation on claims or to abate
the hazard. One option to be reviewed might be for employing agencies to pay at least
50% of a permanent award from their current operating budget. This might have to be
adjusted for some highly hazardous operations, but would stimulate spending for hear-
ing conservation and noise control.
5) In a few cases reviewed in Task Force files, the employing agency knew of hazardous
noise exposures or increasing hearing loss on the part of the claimant, but refused to in-
troduce noise control or transfer the claimant to quiet employment. Where a responsible
program manager or supervisor knows of a serious hazard, and through his negligence
causes injury or aggravation, the law might provide for individual negligence suits
against the agency and/or the official, not limited to the maximums of the FEC or
Longshore program, but covering all damages.
6) Present FEC and Longshore data collection is very sparse. Apparently data processing
efforts now underway will only cover accounting functions like check payment. The new
system will not establish a retrievable record of claims data which can be used in claims
management, or as a statistical tool for reviewing the program. The OWCP could con-
sider a simple computerized record. For example, a one-card record of approved Hear-
ing Loss Task Force Claims with more employee data, audiometric and other test infor-
mation, codes for noise exposure and hearing conservation data from the employer
would help examiners. This information would give the agency a much better
knowledge of its claims handling. It could be done with very little manpower patterned
after ongoing systems used in Wisconsin, Washington, Colorado, Kentucky, and a
number of other States which have computerized their worker’s compensation data.
8I
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APPENDIX I
HEARING LOSS STATUTES AND ADMINISTRATIVE RULES
I—A WISCoNSIN STATUTE (102.555) AND ADMINISTRATIVE RULE 80-25
62
Industry, Labor and Human Relations
102.55
102.555 Occupational deafness; definitions (I) “Occupational deafness” means perma-
nent partial or permanent total loss of hearing of one or both ears due to prolonged exposure
to noise in employment. “Noise” means sound capable of producing occupational deafness.
“Noisy employment” means employment in the performance of which an employee is sub-
jected to noise.
(2) No benefits shall be payable for temporary total or temporary partial disability under
this act for loss of hearing due to prolonged exposure to noise.
(3) An employee who because of occupational deafness is transferred by his employer to
other noisy employment and thereby sustains actual wage loss shall be compensated at the
rate provided in s. 102.43 (2), not exceeding $3,500 in the aggregate from all employers.
“Time of injury,” “occurence of injury,” “date of injury” in such case shall be the date of
wage loss.
(4) Subject to the limitations herein contained and s. 102.53 (2) there shall be payable for
total occupational deafness of one ear, 36 weeks of compensation, for total occupational
deafness of both ears, 216 weeks of compensation; and for partial occupational deafness,
compensation shall bear such relation to that named herein as disabilities bear to the max-
imum disabilities herein provided. The reduction of the periods for which indemnity is paid
made because of age under a. 102.53 (2) shall apply in cases for occupational deafness under
par. (a); such reduction shall not apply in claims for occupational deafness under pars. (b),
Ic) and Id), and in lieu thereof a reduction shall be made at the rate of one-hall percent for
each year that the age of the employee exceeds 52. In cases covered by this subsection “time
of injury”, “occurrence of injury”, or “date of injury” shall, at the option of the employee, be
the date of occurrence of any of the following events to an employee:
(a) Transfer to nonnoisy employment by an employer whose employment has caused oc-
cupational deafness;
(bI Retirement;
Ic) Termination of the employer-employee relationship or
Id) Layoff, provided the layoff is complete and continuous for one year.
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(5) No claim under sub (4) may be filed until 2 consecutive months of removal from noisy
employment after the time of injury except that under sub .(4) (d) such 2 consecutive months’
period may commence within the last 2 months of layoff. 6 ’
(O) The limitation provisions in this chapter shall control claims arising under this section.
Such provisions shall run from the first date upon which claim may be filed, or from the date
of subsequent death, provided that no claim shall accrue to any dependent unless an award
has been issued or hearing tests have been conducted by a competent medical specialist after
the employee has been removed from the noisy environment for a period of 2 months.
(7) No payment shall be made to an employe under this section unless he shall have work-
ed in noisy employment for a total period of at least 90 days for the employer from whom be
claims compensation.
(8) An employer is liable for the entire occupational deafness to which his or her employ-
ment has contributed; but if previous deafness is established by a hearing test or other compe-
tent evidence, whether or not the employee was exposed to noise within the 2 months
preceding such test, the employer is not liable for previous loss so established nor is he liable
for any loss for which compensation has previously been paid or awarded.
(9) Any amount paid to an employee under this section by any employer shall be credited
against compensation payable by any employer to such employee for occupational deafness
under subs. (3) and (4). No employee shall in the aggregate receive greater compensation
from any or all employers for occupational deafness than that provided in this section for total
occupational deafness.
md 80.25 Loss of hearing; determined. The report of the medical committee which has
revised and updated the report of 1954 is adopted. Such report is as follows:
(1) HARMFUL NOISE. Hearing loss resulting from hazardous noise exposure depends
upon several factors, namely, the overall intensity (sound pressure level), the daily exposure,
the frequency characteristic of the noise spectrum and the total lifetime exposure. Noise ex-
posure level of 90 decibels or more as measured on the A scale of a sound level meter for 8
hours a day is considered to be harmful.
(2) MEASUREMENT OF NOISE. Noise shall be measured with a sound level meter
which meets ANSI standard Sl.4-197l and shall be measured on the “A” weighted network
for “slow response.” Noise levels reaching maxima at intervals of one second or less shall be
classified as being continuous. The measurement of noise is primarily the function of
acoustical engineers and properly trained personnel. Noise should be scientifically measured
by properly trained individuals using approved calibrated instruments which at the present
time include sound level meters, octave band analyzers and oscilloscopes, the latter par-
ticularly for impact-type noises. See Wisconsin Administrative Code sections md. 11.03-11.06,
inclusive. Register, July 1971, No. 187.
t See Rule md %O.2S infra for determining Iota or impairment of hearing. See eec. 102.52 4174 and (IS) for deafneu due to trauma
or accident.
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(3) MEASURE OF HEARING ACUITY. The use of pure tone air conduction
audiometry performed under proper testing conditions is recommended for establishing the
hearing acuity of workers. The audiometer should be one which meets the specifications of
ANSI standard 53.6-1969 (4). The audiometer should be period ca1ly calibrated. Preemploy-
ment records should include a satisfactory personal and occupational history as they may per-
tain to hearing status. Otological examination should be made where indicated. See Wiscon-
sin Administrative Code section Ind. 11.10. Register, August 1972, No. 200; md. 11.11.
Register, July 1971, No. 187; and Ind 11.12. Register, August 1972, No. 200.
(4) FORMULA FOR MEASURING HEARING IMPAIRMENT. For the purpose of
determining the hearing impairment, pure tone air conduction audiometry is used, measuring
all frequencies between 500 and 6,000 Hz. This formula uses the average of the three speech
frequencies of 1,000, 2,000, and 3,000 Hz. Audiometric measurement for these three frequen-
cies averaging 35 decibels or less on the ANSI calibration does not constitute any practical
hearing impairment. A table for evaluating hearing impairment based upon the average
readings of these three frequencies follows below. No deduction is made for presbycusis.
(5) DIAGNOSIS AND EVALUATION. The diagnosis of occupational hearings loss is
based upon the occupational and medical history, the results of the otological and
audiometric examinations and their evaluation.
(6) TREATMENT. There is no known medical or surgical treatment for improving or
restoring hearing loss due to hazardous noise exposure.
(7) ALLOWANCE FOR TINNITUS. In addition to the above impairment, if tinnitus
has permanently resulted due to work exposure, an allowance of 5% loss of hearing impair-
ment for the affected ear or ears shall be computed.
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(8) HEARING IMPAIRMENT TABLE
Percent of Percent of
Compensable Compensable
Average Decibel Hearing Average Decibel Hearing
Loss ANSI Impairment Loss ANSI Impairment
35 0 66 54.25
36 1.75 67 56.00
37 3.50 68 57.75
38 5.25 69 59.50
39 7.00 70 61.25
44) 8.75 71 63.00
41 10.50 72 64.75
42 12.25 73 66.50
43 14.00 74 68.25
44 15.75 75 70.00
45 17.50 76 71.75
46 19.25 77 73.50
47 21.00 78 75.25
48 22.75 79 77.00
49 24.50 80 78.75
50 26.25 81 80.50
51 28.00 82 82.25
52 29.75 83 84.00
53 31.50 84 85.75
54 33.25 85 87.50
55 35.00 86 89.25
56 36.75 87 91.00
57 38.50 88 92.75
58 40.25 89 94.50
59 42.00 90 96.25
60 43.75 91 98.00
61 45.50 92 99.75
62 47.25
63 49.00
64 50.75
65 52.50
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(9) METHOD FOR DETERMINING PERCENT OF HEARING IMPAIRMENT.
(a) Obtain for each ear the average hearing level in decibels at the three frequencies, 1,000,
2,000 and 3,000 Hz. (b) See Table for converting to percentage of hearing impairment in each
ear. (c) To determine the percentage of impairment for both ears, multiply the lesser loss by
4, add the greater loss and divide by 5.
Example: Hearing levels in dbs (ANSI reference level):
Frequencies 250 500 1000 2000 3000 4000 6000
Right ear 20 25 40 50 60 65 70
Left ear 30 40 45 55 65 65 70
Right ear— 1000 - 40 Left ear— 1000 - 45
2000- 50 2000- 55
3000- 60 3000- 65
Total Total - 150 Total Total- 165
150 -‘- 3 = 50 db 165 ÷ 3 = 55 db
50 db = 26.25% impairment, right ear
55 db = 35% impairment, left ear
To determine bilateral percentage of impairment:
Multiply the less loss 26.25% by 4 105%
Add greater loss 35% impairment, left ear
140%
Divide 140 by 5 = 28% bilateral impairment
History: 1-2-56; am. Rgi ter, January, 1960, No. 49, elf. 2-1-60; am. Register, October, 1965, No. 118, elf. 11-1-65; r. andrecr. Register. September. 1972, No. 20), elf.
10-1-72; am. 1) to 4), r. (S ) renum. 6) and 47) to be 5) sod 6), Cr. 47) and am. (8), Register, September, 1975, No. 237, elf. 10-1-75.
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1-B. SELECTED EXAMPLES OF STATE AND FEDERAL STATUTORY PROVI-
SIONS ON HEARING LOSS
The State and federal statutes covering hearing loss vary tremendously. Some of the States
which compensate the most claims have the simplest statutes:
FEC - The Federal Employees Compensation Act (Sec. 8107) defines disability to include
loss of function (impairment). If there is permanent disability involving the loss of use of a
member or function of the body or involving disfigurement, the employee is entitled to basic
compensation for the disability.”...
The Act then provides benefits for total loss of hearing in one or both ears and allows “pro-
portionate” benefits for permanent partial loss of the member.
New Jersey - The law has a general permanent disability schedule with benefits for loss of
hearing but no further reference to hearing loss.
New York - Law very similar to the old Wisconsin law with the six-month rule.
Missouri - The Missouri law is similar to the older Wisconsin Law, except for an aging
deduction as follows:
“The amount of the hearing loss shall be reduced by the average amount of hearing loss
from non-occupational causes found in the population at any given age, according to the pro-
visions hereinafter set forth.
In order to allow for the average amount of hearing loss due to non-occupational causes
found in the population at any given age (including presbycusis) there shall be deducted from
the average hearing level one-half (1/2) decibel for each year of the employee sage over 40 at
the time of his last exposure to industrial noise. The result shall be termed the corrected
average hearing level.”
North Carolina and Maine - The unique features of these laws provide that wearing of
hearing protection constitutes removal from exposure for purposes of the six-month waiting
period:
NC 97-53 (28) (1): “No claim for compensation for occupational hearing loss shall be filed
until after six months have elapsed since exposure to harmful noise with the last employer.
The last day of such exposure shall be the date of disability. The regular use of employer-
provided protective devices capable of preventing loss of hearing from the particular harmful
noise where the employee works shall constitute removal from exposure to such harmful
noise.” (Maine has a similar provision with a one-month waiting period.)
Pennsylvania-This State does not compensate partial hearing loss. Its occupationa l disease
statute states clearly:
“For the purpose of this clause (on permanent partial compensation), partial hearing loss
shall not be considered an occupational disease.”
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New Mexico - another non-compensable State. This State’s permanent disability schedule
includes “Total deafness” in one or both ears. However this only covers “accidental injuries.”
Under the State’s occupational disease act, benefits are only paid for “disablement,” which
means “total physical incapacity by reason of an occupational disease.”
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APPENDIX 2
HEARING LOSS CLAIM DOCUMENTS
2-A. ClaImant’s Application for Hearing — Wi8consln
MPLOYEF ‘S NAME AND ADDRESS
Weyenberg Moccasins
Paradise, Wisconsin
INSURANCE CARRIER
Employers Mutual
IMPLOYCI’S NAME AND ADDRESS (IF MORE THAN ONE)
INSURANCE CARRIER
(UPL0Yf RT.)jOATE AGE)YJIEN INJURED MARITAL STATUS NUMBER OF CHILDREN I SOCIAL SECURITY NO.
)I 110W MARRIEO 0 SINGLE 2 533-41-2436
IME OF INJURY DATE OF INJURY
Last day worked 4-16.78
(plant closed)
EMPLOYE WAS EARNING WHEN NJURED
$176
flROAY FERWEEK PERMONTH
)ESCRIBF HOW INJURY OCCURCO IWHAT HAPPENED)
Worked as shoe cutter on Intl. Shoe Machine equipment for 25 years. Over past 10 years
have had progressive difficulty hearing in groups, listening to TV and severe problems in
telephone coiisnunicacion.
IATURE OF DISABILITY (DESCRIBE PART OF BODY INJURED AND KIND OF DISABILITY. AS STRAIN. FRACTURE. &ACK. HEAD. IOOY ARMS LEG.
Loss of hearing in both ears.
FOR WHICH COMPENSATION IS CLAIMEO - STATE HOW LONG DISABLED (GIVE DATESi STATE WHAT PERUAAIENT DISABILITY EXISTS.
IF INJURY RESULTED IN DEATH. GIVE DATE.
Permanent disability benefits and payment for hearing aid.
DATE ON WHICH NOTICE OF INJURY WAS GIVEN TO EMPLOYER MANNER IN WHICH NOTICE TO EMPLOYER GIVEN
Various times over past few years Supervisor was informed that I was-having
hearing problems.
DOCTORS WHO TREATED INJURED (NAME AND ADORESSI
Dr. E. Wolf, Milwaukee, Wisconsin
WAS MEDICAL TREA1MENT SUPPLIED BY EMPLOYER
DYES NO OPARTIALLY
P NO, WHAT EXPENSE WAS INCURRED FOR DOCTORS FOR HOSPITAL AND MEDICINES
‘(AVE YOU PAID SUCH EXPENSE HAS EMPLOYE RETURNED TO WORK? IS COMPENSATION BEING PAID?
DYES DNO OPARTIALLY No
NNAT OUESTION HAS ARISEN AS TO LIABILITY
Insurer and employer refuse to recognize claim.
WHERE SHOULD HEARING BE SCHEDULED
I WILL BE READY FOR PULL HEARING AT ANY TIME AFTER. (GIVE DATE) IF NOT FULLY PREPARED FOR HEARING. PLEASE SO STATE
DATE sIoNAru £ OF APPLICA
- J LJ
AN ER THIS SET OF OUESTIOFIS IF LAIM IS MADE FOR DEATH BE FIT
‘dAME OF DECEASED RELATION OF DECEASED TO APPLICANT
A$ APPLICANT DEPENDENT ON DECEASED APPLICANT LIVED WITH DECEASED AT TIME OF ACCIDENT
Dyes DM0
PPLICAT ION FOR WEARING
‘ORM WC•7 3/77
I(ORKIAI COMPENSATION ACT
END OR IOINAL APdO WO COPIES T
STATE OF WISCONSIN
DEPT. OF INDUSTRY, LABOR
AND HUMAN RELATIONS
WORKER’S COMPENSATION DIVISION
P.O. BOX 7901
MADISON, WISCONSIN 53707
IP#L1 ANT’S MAUI AND ADDRESS -
Paula Bronowitz
1012 Mohave Street
Paradise, Wisconsin
St SURE TO NOTIFY THE OIPAPITMINT1
OP ANY CHANGE IN ADORISS. NOTIFY AT
ONCE IF NOT FULLY P EPAMO FOR
HEARING.
APPLICANTS ATTORNEY IF ANY) NAME AND AODRIU
Applicant represented by Boot & Shoe Workers
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2-B. Claimant’s Medical Report - WC-16B -
Allowed in Lieu of Oral Testimony -Wisconsin
.Stete i’( II IQflP SI
t)rpertitiirit ii! ti dii iry,
I.ahor tutu I l tsii*si I(elatkirit
Worker’s (uuInI ot .Lttt,n I iv sion
P .O. lIon ThOI
Madison, Wiuronsin 51707
lStats a pati.ats own woids the acc de t ot woik exposuse to neh.ch he attiabute. the cond,t,on foe w4i ch h saw yost.
The patient states that she was exposed to various noisy shoe machinery as a shoe
cutter for 25 years and has noticed increasing hearing impairment. She states that
the company advised its employees in this area to wear ear protectors 2 or 3 year.
ago. The patient has worn the protector . since that time.
S. G ’. cc ’iaplet. accounu of the astute sad extent of diisb Iity. ncIudisg subjective compln nts. objective lindiaga sad yew diagnosis.
The general ear, nose and throat examination was essentially within normal limits.
Audicosetric itudies revealed a severe bilateral sensorineural hearing loss with
poor speech discrimination. A copy of the audiogram is enclosed.
10. Ia you opi.ioa , did the accident oe woek exposute desceibed in
It.. 4 dizectty c ia .. the disability’
I I. I I noe dietculy, did the accident os wok esposo. is It .. 4
casts . the d,aabil ,ty by s1gesvation 0 acceleistios of a pa..
existing conditto. ?
0 YES 0 NO
WC. 16.B
7 176
Z. PIn.. of Employee
PRACTITIONER’S REPORT ON ACCIDENT OR INDUSTRIAL DISEASE IN LIEU OF TESTIMONY
PILED ON BEHALF OF 0 EMPI.OYE DEMI t LOYER OR INSURANCE CARRIER
I. Na.. .1 aiploye
PAULA BRONOWITZ
WEYE ERG MOCCAS INS
— —- ___________ - -. accident eq list incas
. Did you teest patient? U so, between what dates? 7. Date of last examination
DYES NO 6-24—78
Dan.
disability ft.. woek beg.
. Dame iapmgtd was oe will be able to etuen to lull time moth oub 1 ect only to his petasanesi li*itstio s.
The patient is not working at present.
. Doe iapmnwd was oe will b . able to tetos to. limited type of week
V ag limitations? Uncertain. The hearing loss is not totally correctable
aid though it could be improved.
with a hearing
DYES NO
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fan strident ne nd , , til di , , , , , :e,ult,d ii any petmanfnx J,isbf,ty’
) YtS 1 J Fly a ,avation of th , follow,n 5 pIeenn i ing
U. timati pccccnhag, of ssb,litc is’ ii , , .mhti, .y,, e .. to ,n , , ’ls eJ. ni compote so pemanens total Jinaf.lity .1 1 5 1 5 1 ) ii i• t tøi
head, c outed b% the cc,Jeai os seth ea sure Je ,ciib,d in L , t, i 45
The audiogrmn shows the following los.:
500 1000 2000 3000
RE 15 25 45 60
LE 25 .30 50 65
4000
75
73
14. That c?encnl* CgaSln..te disabtlsty Isuth as limitation of motion, delocm,,y, w, ,hn,s,, pain, lath ai .nd.,onc, • etc.)’ If Inui,istisa of
motion, describe nature and percentage iii l ,m,to, ion of each pall of each member affected fU.,Lt , n,ma.,. on .oloniaey, is passile
motion) If amputation. nate exact polni bone was amputated and mh,theg .turnp is ,cnJer to h.,J,.
Based on the Wisconsin Hearing Los. Rule 80.25, the percentage of disability ii
44.3 , This correlates veil with speech discrimination scores of 30% and speech
reception threshold. of 50 db in both ear..
IS. “- yea capers that the abone permanent disibil it 1 ash tortes,, on that the ceaid .tion mill in amiy may iiptena! Pleas, ssp%aia. — —
The loss is permanent and will increase with aging.
C.l1. e university of Wisconsin Medical School
?mctotisiwn’s typed or ptiau.d ne
Gene Harriman, M.D. —______
Pmcwicor,’. addrena
101 Wisconsin, Milwaukee, Wisconsin
CER11flC*TION
I heteby certify, subleci to he penalty of un. a nd/ce
imnplisonment, as provided in Sec. 94 .39 of the liscon’
sin Statutes, that th, above report truly and correctly
sets faith th, history, my (iødings, diagnosis and opinion.
(Si it iun.f Pricitdsiia,)
ft’s.
16. Do you capers tIm any (moth,, cr.atmemit mill be neceossny to cm . ,. on tet c r (tote the eI ( ,cti u4 this i .s acy’
0 YES ( NO it YES. eipfain However, the patient should be considered for
a beneficial medical appliance.
yea, of 1 ,sdustiois 1943
U. Pievices to thin injury, did saiploy , ha ’, any pitmaneat disabilityl
0 S 3 NO U YES, explain
IS, I am a pncdticonr licensed I . said pmcticlai Ia Whccesat .
Section 102 17 (l)(a.) provide. thai the continua of .erif,cd nit certified medical and ssu ic.l reports presented by claiaamt. Is.
cou.” aation chahl consixtuur pcim,a (m dc evislence as in the mourn crwtuamned therein. kr 1 •i ,ns muSt be filed aiuih ihecoam,ssion
inS cafe fifteen ddya pilot to iii , ,Iatr of ISC.alxnfi in he a .l.i.il4e o’. evideiste. If not . ‘ , tiled it will be .tece.sary i. paidu.c.
ib. docueg to ji,. o,aI testimony at the mime ill hearing.
93
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2-C. Example of Full Medical and Audiological Evaluation - Wisconsin
Dr. Meyer Fox)
MEDICAL REPOR1 — ORS. FOX ANr’ ‘RIEOMAN. S.C. 2040W. WISCONSIN AVL, MIt” ‘UKEE. WIS. 13233
R.: Mr. Harold Minmann D.t.: 3-29-76
HISTORY. PROGRESS. AND COMPLAINTS:
Mr. Harold Minrnann was seen in consultation at my office on March
26, 1976, at which time he was given an otological examination and a
series of audiometriC hearing studies. The purpo e of these studies
was to determine whether or not Mr. Minmann had a hearing impairment
and its relationship to his employment at the Johnson Controls Company
When questioned regarding his hearing diffièulty, Mr. Minmann informed
inc that he has been having hearing trouble for a long time, but that i
has become progressively worse during the past five years. He is not
particularly troubled with ear noises (Tinnitus). Mr. Minrnann stated,
“I have difficulty in understanding. I can hear people talk, but I
have trouble making out what they are saying. I can not enjoy Telcvis
because I don’t understand it, and I must turn up the volume loud. I
also have trouble with using the telephone.”
Mr. Minmann states that he did not see any physician regarding his ear
or his hearing, until January of 1976 when he was seen by Dr. Charles
Finn. Mr. Minman did not have any hearing tests made while employed
at the Johnson Controls Company. Mr. Minmanii states that he did wear
earplugs the last year or two when they became available at the plant.
His general health is stated to be good. Mr. Minmann was in Military
Service between 1942 through 1945, but was not in combat. He does not
do any hunting.
PAST OCCUPATIONAL HISTORY
Retired on October 17, 1975. He began employment at Johnson C9ntrol
on December of 1945. He worked mostly on automatic screw machines in
an area, which he claims was very noisy. Prior to that he was in the
Army and previously worked at a Box Factory for two years. There is n
history of any injury to the head or ears.
MILITARYIIISTORY Stated Above. EXPOSURETOGUNFIRE Stated Above.
MEDICAL AND SURGICAL HISTORY:
Usual childhood ailments.
Surge - for Hemorrhoidectomy.
Hospitalization for Hemorrhoidectomy,
HEARING IMPAIRMENT IN FAMILY: None
PSEVIOUS HEARING TESTS:
Charles Finn, M.D.
94
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MEDICAL REPORT — ORS.FOX(’ RIEOMAN,S.C. 2041W .‘ ISC0NSINAVE..I AUKEE.WIS
ft.: Mr. Harold Minmann Date: 3297
EAR. NOSE AND THROAT EXAMINATION
OinlcalObservations: Mr. Minmann is a 62-year-old male. STATED HE!. ii , WEIGUT:
and 180 lbs. Could hhar conversational voice at a distancc of four feet
HEAD: No deformities or abnormalities.
EARS: Both ear canals were clear.
The left ear drum is somewhat thickened and retracted.
EYES• The right ear drum is somewhat dull, but intact.
Pupils round and equal, react to light and acconunodatli
FACIAL movements normal.
NOSE: Anterior Rh noscopy:
Septal subluxation. Mucous membrane Is dry.
PosterIor Rhino copy:
no discharge.
MOUTH: Wears upper plate. Few lower teeth in questionable cor
ion.
HEARING STUDIES: ISO 1964
PURE TONE AIR CONDUCTION AUDIOMETRIC TESTS: Thr shoId level in decibeli for e.cP i ear.
Date: Frequency 250 500 1000 1500 2000 3000 4000 6000 BO00c
RihtE.r - - 40 50 -. 60 70 85 85 80
LaftEar 40 45 - - 65 70 80 80 85
Right Ear
Uft Ear
SELF RECORDING PURE TONE AUDIOMETRY: Copy enclosed.
TUNING FORK TESTS: Right Ear Lift Ear
Not Heard Webar Not Heard
Positive Rinni Positive
Greatly Decreasedchw.bath Greatly Decreased
CALIBRATED SPEECH TESTS:
Speech ceceptlon threshold DiscrImination Scores
Right Ear Decibels Right Ear
Left Ear 4 5 ( cIbe i Lift Ear
ADDITIONAL TESTS:
95
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MEDICAL REPORT — ORS. FOX AND FRI(DMAN,S.C. 2040W.WISCONS?NAVE.M•WAUKEE.WIS.53733
Rs: Mr. tIarold Minmann Ost,: 3-29-76
3UMMARY:
This case concerns a 62-year-old retired employee of the Johnso t Control
Company, who complains of difficulty in hearing,which he attributes to
the nature of work he performed at the Johnson Controls Company over a
period of some 30 years. Mr. Minmann claims that he had good hearing
ability when he began working at the Johnson Controls Company. There is
no history of any injury to the ears or previnus car disease.
Mr. Minmann claims that his greatest difficulty is in making out what
people are saying, particularly when several people are in the room.
He does r complain of any ear noises (Tinnitus).
The results of the otological examination revealed that both ear drums
were dull and thickened, with slight retraction of the left car drum.
The remainder of the nose and throat examination was not particularly
significant.
The principal findings in this case were the results of the hearing stu
which included pure tone air conduction audior try , tuning fork tests,
and speech audIonetry. The results of these tests indicated that Mr.
Minmann has a bilateral sensori-neural hearing impairment, involving the
speech zone range as well as the higher frequencies. In addition it is
noted that there is poor discrimination ability which explains why Mr.
Minmann has difficulty in making out what is being said.
The above pure tone air conduction audiometric studies when calculated
for percentage of hearing impairment using the formula which has been
adopted by the Wisconsin Workmen’s Compensation Division amounts to a
hearing impairment on each ear of 43.75 percent.
Based upon the history as given to me by Mr. Minmann, the results of th
otological examination, and the various audiometric hearing studies, it
is my opinion that the hearing impairment in this case is primarily the
result of occupational noise exposure.
Should you have any questions relative to this examination, findings, o
opinion, please feel free to contact me.
Sincerely,
J4 7
Meyer . Fox, M.D.
MS F cs
96
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2-D. Report of Noise Survey on Hearing Loss Claim Taken By State Insurance Fund
-Oregon
E F REPORT OF INVESTIGATION
S . .’ •# ...
HEARINC: C! Case Nn._____________
Claimant T i1 j .• claim No.
Address 80105 Delight Valley School Road, Cottage Grove, Ore .
Employer Bohemia, Inc. 2280 Oakmont Iay Eugene, Ore. 97.24
97401
Requested by Inger Aarnas
Investigator Dave Bonnek Date_Oct., 25, 1977
HISTORY: The claimant, Emil Jay Thorns, allegedly sustained hearing loss while
at work at the Saginaw plant of Bohemia. The claimant has been
employed as a planer grader for the past 17 years, 15 years of which
were spent at the Saginaw plant of Bohemia. Claimar.t advised that
the only doctor that has treated him for hearir. loss is Christopher
L. Hiatt, M.D., and the only treatment he received was Septertber 6,
1977 which was an aucliogram.
Claimant; 80105 Delight Valley School Road, Cottage Grove, Oregon 97424. Phone,
Emil Jay 942—8625. On October 12, 1977 a visit was made to claimant’s hone.
Thorns Claimant advised that he has been a planer grader for the past 17
years. For the past 22 years he has worked in mills. The claimant
has worked seven years for Guistina Bros. in Eugene, the last two
years of which ne worked as a planer grader. Claimant started to
work for Bohemia i 1962 at the Saginaw mill and has worked as a
planer grader for the past 15 years. Claimant contributes a great
deal of his hearing problem to the hog which ran all day from abo .it
1967 to 1972 without the aide of a muffler. The muffler was added
around 1972, which went through the roof piping the noise outside.
Claimant advises he works by a Stetson Ross high speed planer which
run. at 800 to 650 feet per minute. Claimant advised the planer has
been enclosed in a building 30 feet square with an eight to tel’. foot
high ceiling for the past few years, but previously had been in the
open. -Claimant advised he has worn ear muffs sound silencers for
about the past eight years. Claimant indicated he helped i,nitiate
the use of these because of his own hearing problem. Claimant indi-
cated he noticed problems with his hearing approximately ten years
ago when he would have to ask his wife to repeat what she had said
and also noted ringing in his ears. Claimant indicated he has trouble
listening to movies and television as the sounds are garbled.
Claimant’s wife has forced him to get a hearing aid because of thLs
and also because their daughter has a speech inoediment and failure
of claimant to hear his daughter may cause her to tnlk less.
Claimant advised he has had yearly audio exams at the plant’ Ibt é .
past six to eight years. (Audiograms attached) The first timd he --‘
has seen a medical doctor about his hearing oro .em was in Sep t zmber, .
when he saw Doctor Hiatt. Claimant indicated bcth his ears are
affected about the same. .•
Claimant denies a family history of hearing probiens or head ’trauyna. -
Claimant advised he has had a nori al childhood diaeasez including
measles, chicken pox and mumps. Clainartt indicated he may have had ’
M — 11,;c
97
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THO IS, Emil Jay
Claim No. WO )D 2722
Page - 2
scarlet fever, but is not sure of this.
Claimant denies .ise of motorcycles, racing cars, n;usical instruments,
gun club participation or the use of chainsaws in cutting wood.
Claimant’s hobbies consist of woodworking. He has built his bedroom
set and makes other household furniture. Claimant indicated he has
not done much of this in the last year however. The tools he uses
include; 1. tablesaw, which he would run only one hour at a time,
2. belt sander, which would be run one half hour at a time or less,
3. electric drill, which may run one half hour at a time, 4. jointer,
which nay run one half hour at a time. Claimant advised he would
use these tools mainly on weekends, but nometimes after coming home
from the mill. Claimant probably has used his tools aporoximately
100 hours in the last year.
Claimant advised that he spent two years in the US Army s ending one
year of his time in the honor guard. Claimant denies exposure to
excessive noise in the military. Claimant indicated his service was
toward the end of the Korean war.
Claimant advised he told Orin Hollet, his suoervisor, about this
hearing problem - nd that he filed this claim so he may be provided
with a hearing aid.
A recorded statement and medical release authorization were obtained
from the claimant.
Employer; On October 6, 1977 a sound level survey was conducted by Leon Davis,
Bohemia, safety consull:ant, for SAIF. The sound level for graders scaled out
Inc. at 94 decibels on the A scale and 9C decibels on the C scale.
220 Oak— (Attached is the sound level 3urvey, dated October 6, 1977.) Also
mont Way obtained on this date was the industrial hearing conservation log
Eugene for claimant which shows test dates of June 20, 1972, February 9,
97401 1973, March 7, 1974, March 7, 1975, SeDtember 3, 1975 and October 9
Phone; 1976. (See copy attached)
342—6262
Ferd Wilkins, safety director for Bohemia, was contacted regarding
this claim. Wilkins indicated that claimant had other exposure to
noise besides working at the mill and requested that a sound level
survey be taken regarding claimant’s hobbies at home. ; ;iLkins was
advised that this survey would be conducted and that the Eugene
Hearing & Speech Center would be asked to evaluate and give their
opinion as to how much hearing loss resulted from claimant’s exposure
to noise from his woodworking hobbies at hone. (See attached sound
level survey dated October 19, 1977).
Medical; Address: 188 West B Street, Springfield, Oregon 97477,- phone; 74
Christr p— 9511. On September 13, 1977, contact was made with Doc€or Hiatt’s
her L. office and medical records were obtained regarding c1a’iman ’s
Hiatt,MD September 2, 1977 visit regarding a hearing less prob1 em. Doctd
Hiatt’s impression was of a sensorial neural hearing pss Audiogran
and chart notes are attached)
98
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TiIO1 , Er il Jay
Claim No. IODD 2722
Page 3
Attachments;
Medical
Release Form
Medical Records
from Christopher
Hiatt, M.D.
Sound Level Surveys;
August9, 1971,
March 20, 1973,
May 16, 1974,
August 26, 1975,
October 6, 1977,
October 19, 1977.
Industrial Hearing
Conservation Log
for period June 20,
1972 through October 9,
1976.
DB: ir
10—28—77
; . : -•‘
‘ —p
99
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C’h 2fl.
PLANT
Rickini
SOUND LEVEL kEADINGS
TAKEN ye1.. )a
LOCATION Pi ncr
W N INSTfltJ NT lAST
CALIDRATED 8: O a
— 3-20—73
INSTRWtT US
-—
IME C? TEST ESTII1ATED NOISE LEVEL O.S.H.A. 1 OI&E FO 2•PJLt
!5T LOCATION 1 (PoSurj (slow roopo co NOISE LEVZL SOURCES OR
T1Z2 (hi).. DB-A) LD T1’ (iu sJ CO} NT3
2:OSI
Breakdown
8 hrs.
98 to 100
2 brs .
Planer
Trim saws
Lumber
movement
2:09
Planer
Feeder
8 hrs.
•
106 to 108
hr.
2:15
Hula.
q’rijnxcer
8 hrs.
98 to 104
1 r.
Planer
Trim saws
Lumber
dropping
:19
Grader’s-
Area
8 hrs.
94 to 100
2 hrs.
Ltimber
droppi g
:24
Stamper
8 bra.
92 to 94
4 hrs.
!:27
::30
10 ft.
8 bra.
2 to 94
-
4hzc.
-
20 ft.
Down chain
8 his.
91 to 93
:
4 hrs.
.— ,. .
, Y” ‘ .‘- \
‘O 1\
: :
:32
30 ft.
Down chain
8 his.
90 to 92
€ hr .
.c ..
ioO
-------
;? y
• S. . .. :.
FI!Y ;.•:... Bohemia Inc. _________
ADDI’ 1S5 _____ ___________
Dave boneck _____
Conit. .. :. . .•_ in
I! pa t c’ . . ... ..,—. i’ .. . —
—
.8&K2205
10—19—7?
,J- — — . . —-. V. .Ct _ - . . _. .a.__
. . .!f?P9Y4!’B. are sound level. e 7 f Cia imant’s -
equ.ipronbu3edS.fl h18 p_h ,_80l25
pe1i ht V IeySc . %pp1.
_____ • & hour
_ p 1e•$aw (c tt3p ) ._.__..LN#tR.m_ ...... 1 hour
_j u ing)_
— .
• . -
.99 __
94
82
SB
• .91 -
94
90
•Jpi t r. — -•• .- - — hour
— DriU. el .ct 1c). _._ __._ . - - - hour. - -
- -..—•. . -. ____ ____ 1nfre uent
_1t9.u •ter.__.____ __ _._ — inroç uent
.Jlpt .f uiI &h2 . .pa5tJe!F Kr. Thorns advised he ha robably used his home _____
sg4pprp c .iin tely 100 hours . The times of us age• varie _ At.time? . ... --
•t the• cs p ! .nt be on ot.her times equipcent. u seaCS._
• .
..4 ;:r ! •. • . • . . .
101
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APPENDIX 3
TERMINOLOGY GLOSSARY
ANSI-1969-Measured hearing levels are referenced to the 1969 Standard published by the
American National Standards Institute (S3.6) specifying audiometric threshold values for
normal hearing young adults.
A-weighted sound level- sound pressure level in decibels as measured on a sound level meter
using an A-weighted network. This network attempts to reflect the human ear’s decreased
sensitivity to low frequency sounds.
audiometer - instrument used to measure hearing sensitivity using pure tones.
dB - abbreviation for decibel.
dBA - abbreviation for decibels measured on the A scale of a sound level meter; used in
OSHA noise regulation and most environmental noise regulations. (See A-weighted Sound
Level)
decibel - a unit for measuring the level of a sound. The decibel is based on a ratio expressing
how much greater a sound pressure is above a specified reference l vet’
frequency - The rate at which a sound source vibrates or makes the air vibrate determines fre-
quency. The unit of time is usually one second and the term Hertz (Hz) is used to designate
the number of cycles per second. Frequency is related to the subjective sensation of pitch.
High frequency sounds (2000, 3000 and 4 )00 Hz) are high pitched. In terms of speech, con-
sonan4s are usually high frequency in nature and vowels are low frequency.
hearing level - amount in decibels by which the threshold of audition for an ear differs from
zero decibels (dB) for each frequency—a standard audiometric threshold derived from
normal-hearing young adults.
Hertz - unit of frequency.
HL - hearing level.
Hz - abbreviation of Hertz.
impulse noise - sound of short duration, usually less than one second, with an abrupt onset
and rapid decay.
noise dose - an auditory exposure of a listener over a defined period of time.
103
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noise exposure - instantaneous auditory exposure of a listener measured at the ear.
Noise-induced permanent threshold shift - a permanent reduction in hearing level caused by
noise.
NIPTS - abbreviation of noise-induced permanent threshold shift.
presbycusis - deterioration in hearing caused by the process of aging.
pure-tone audio gram - a set of measures that compares the hearing sensitivity of an individual
in detecting faint pure tones in a quiet test room, to the corresponding ability in a normal
hearing young adult population. Usually shown as a graph or table depicting hearing
thresholds in decibels at the frequencies of 500, 1,000, 2,000, 3,000, 4,000 and 6,000 Hz.
recovery - the principle by which removal from noise allows the inner ear hair cells to regain
their pre-noise exposed condition.
temporary threshold shift - temporary reduction of the hearing level, usually caused by ex-
posure to high level noise. The hearing level usually returns to pre-exposure hearing following
a period away from noise. Frequently used to predict potential for permanent threshold shift.
TTS- abbreviation of temporary threshold shift.
Worker’s Compensation Terms
AAOO - American Academy of Ophthalmology and Otolaryngology - the association of hear-
ing specialists who developed the hearing formula used by the AMA Guides. The 1959 AAOO
formula averages hearing levels at 500, 1,000 and 2,000 Hz using a low fence at 25 dB (re:
ANSI-1969) as the beginning point of impairment, a high fence at 92 dB as the point of total
loss, and each decibel reduction between 25 and 92 dB represents a 1.5% impairment rate of
growth (totalling 100%). The 1979 revision adds 3000 Hz to the formula.
AMA - American Medical Association - has produced guides to hearing impairment.
Berney formula - I.V. Berney, a New Jersey otologist, has developed a formula used fre-
quently in New Jersey worker’s compensation claims. It averages hearing levels at the fre-
quencies of 500, 1,000, 2,000 and 4,000 Hz using a beginning point of impairment at 26 dB
(re: ANSI-1969).
CHABA - Committee on Hearing, Bioacoustics, and Biomechanics of the National Academy
of Sciences, studying various hearing loss issues. CHABA was asked by the Navy to récom-
mend a compensation formula which would include the 3,000 frequency but would result in
104
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same compensation costs as the 1959 AAOO formula. The CHABA working group recom-
mended a formula with a beginning impairment at 35 dB (re: ANSI-1969) averaged over the
1,000, 2,000 and 3,000 Hz frequencies. This recommendation was the basis for a 1975 revi-
sion in the Wisconsin Compensation Rule.
California formula - This formula was agreed on by industry and labor and incorporated into
the California Compensation Code in 1961. It averages the 500, 1,000, 2,000 and 3,000 fre-
quencies with 25 dB (re: ANSI-1969) as the beginning point of impairment. This formula has
recently been adopted by the AMA.
compensation criterion - provisions in the worker’s compensation law-waiting period for fil-
ing, hearing impairment formula, deduction for presbycusis—which affect the amount of
compensation received.
compensation formula - the method of calculating a percenta e of hearing impairment. It in-
cludes a low fence, high fence, averaging method of levels at specific frequencies, percentage
per decibel impairment rate of growth, and better ear correction. There are several different
methods for calculating the percentage impairment in use at the present time (See Table 4).
high fence - point of 100% hearing impairment using a specific compensation formula.
low fence - minimum compensable hearing impairment using a specific compensation for-
mula.
NIOSH - National Institute for Occupational Safety and Health - the federal research arm in
safety and health. NIOSH, in its criteria docwnent published in 1972 recommended a for-
mula averaging 1,000 2,000 and 3,000 Hz with 25 dB (re: ANSI-1969) as the point of begin-
ning impairment.
1947 AMA - the AMA in 1947 published a formula for hearing impairment which was widely
used until replaced by the 1959 AAOO formula. The AMA 1947 formula weighted frequen-
cies from 500 to 4,000 Hz.
Freq. Hz % Weight
500 15
1,000 30
2,000 40
4,000 15
100%
105
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BIBLIOGRAPHY
Articles, Books, and Reports
AAOO - 1959 American Academy of Ophthalmology and Otolaryngology. . Committee on
Conservation of Hearing: Guide for the Evaluation of hearing impairment. Trans. Am.
Acad. Opthalmol. Otolaryn go!, 63: 236-238.
AAOO - 1979 American Academy of Otolaryngology. Committee on Hearing and
Equilibrium and the American Council of Otolaryngology Committee on the Medical
Aspects of Noise. Guide for the evaluation of hearing handicap, J. American Medical
Association, 241 (19): 2055-2059
Abbott, A. Personal Interview, July 1978.
Acton, W.I. 1970. Speech intelligibility in a background noise and noise induced hearing
loss. Ergonomics, 13 (4): 546-554.
AMA- American Medical Association. 1961. Committee on Rating of Physical Impairment:
Ear, nose and throat and related structures. J. American Medical Association,1 77:
99- 108.
Aniansson, G. 1973. Binaural discrimination of everyday speech. Acta Otolaryngol; 75:
334-336.
Barth, P., and Hunt, H.A. 1976. Worker’s compensation and work-related diseases.
Prepared for Federal Task Force on State Workers Compensation.
Barton, S.B. 1968. Workmen’s compensation. Texas Business Studies. Texas: North Texas
State.
Baughn, W.L. 1973. Relation between daily noise exposure and hearing loss based on the
evaluation of 6,835 industrial noise exposure cases. Joint EPA/USAF Study. 6570th
Aerospace Medical Research Laboratory, Wright-Patterson AFB. Ohio: AMRL-
TR-73-53.
Bilger, R.C., and Wang, M.D. 1976. Consonant confusions in patients with sensorineural
hearing loss. J. of Speech and Hearing Research, 19: 718-748.
Block, B. 1978. Noise Condition Data. Kentucky Department of Labor Report.
Burns, W. 1973. Noise and man. Philadelphia: Lippincott.
Burns, W., Robinson, D.W., Shipton, M.S., and Sinclair, A. 1977. Hearing hazard from oc-
cupational noise: Observations on a population from heavy industry. England: National
Physical Laboratory. NPL Acoustics Report.
107
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Carideo, T. June 12, 1976. Rock music: Can our ears survive it. The Milwaukee Journal,
Insight: 5-13.
Central Institute for the Deaf. 1956. Symposium on noise in industry.
Cooper, J.C. Jr., and Cutts, B.P. 1971. Speech discrimination in noise. Journal of Speech
and Hearing Research, 14(2): 332-337.
Cooper, J.C. Jr., and Owen, J.H. 1976. Audiologic profile of noise-induced hearing loss. Ar-
chives of Otolaryngology, 102: 148-150.
Corso, J. 1976. Presbycusis as a complicating factor in evaluating noise induced hearing loss.
In Henderson, D. (Ed.), Effects of noise on hearing, New York: Raven Press.
Davis, H., and Silvermen, S.R. 1970. Hearing and deafness. New York: Holt, Rhinehart
and Winston.
Davis, H. 1971. A historical introduction. In D.W. Robinson (Ed.), Occupational hearing
loss. New York: Academic Press.
Dickman, D.M. (1974). The effects of three noise backgrounds on the sentence intelligibility
scores of hearing impaired listeners. Doctoral disseration, University of Maryland.
Discher, D., et al. 1975. National occupational hazard survey: Pilot study for development of
an occupational disease surveillance method, Cincinnati: NIOSH.
EPA - Environmental Protection Agency. 1971. Effects of noise on people. Washington,
D.C.
EPA - Environmental Protection Agency. 1974. Information on levels of environmental noise
requisite to protect the public health and welfare with an adequate margin of safety.
Washington, D.C.
EPA - Environmental Protection Agency, ONAC. 1978. Noise: A health problem.
Washington, D.C.
Findlay, R.C. 1976. Auditory dysfunction accompanying noise-induced hearing loss. Journal
of Speech and Hearing Disorders, 51: 374-380.
Fowler, E.P. 1947. The percentage of capacity to hear speech and related disabilities.
Laryngoscope, 57: 103-113.
Fox, M. 1976. Workmen’s compensation hearing loss statutes in the United States and
Canada. Cleveland: Forging Industry Association.
108
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Fox, M. 1978. Worknfen’s compensation and medical legal aspects of the occupational
noise problem. Proceedings of the Technical Program NOISEXPO 1978.
Frazier, J., Chief of Hearing Loss Task Force. 1978. Personal interview.
Ginnold, R. 1974. Workmen’s compensation for hearing loss in Wisconsin. Labor Law Jour-
nal, 25 (1): 682-694.
Glenn, P.K. 1977. Generation of a data base from a survey of the noise environment at
federal facilities. El Segundo, California: Wyle Research Report for EPA.
GAO - Government Accounting Office Audit Report. 1978. Department of Labor needs to
change hearing impairment criteria to ensure proper payment under the Federal
Employees’ Compensation Act. Washington, D.C.
Hammernik, R.P., and Henderson, D. 1976. The potentiation of noise by other ototraumatic
agents. In Effects of Noise on Hearing. New York: Raven Press.
Henderson, D. (Ed.). 1976. Effects of noise on hearing. New York: Raven Press.
Harris, J.D., 1965. Pure tone hearing acuity and the intelligibility of everyday speech. J.
Acoustical Society of America, 37, 824-830.
Harris, J.D., Haines, H.L., and Myers, C.K. 1956. A new formula for using the audiogram
to predict speech hearing loss. A.M.A. Archives of Otolaryngology., 63: 158-176.
Harris, J.D., Haines, H.L., and Myers, C.K. 1960. The importance of hearing at 3KC for
understanding speeded speech. Laryngoscope, 70(2): 131-146.
Henderson, D., Hammernik, and Coling, D. 1979. The influence of whole body vibration on
asymptotic threshold Shift induced by impulse noise. Paper presented at Acoustical
Society of America Meeting, Boston, Mass.
Hershey, R.L. 1978. Workers compensation claims for hearing loss. Sound and Vibration,
12(9): 17-19.
Humes, L.E., Schwartz, D.M., and Bess, F.H. Unpublished paper. Perfonnance of high
frequency impaired listeners with conventional and extended high frequency amplifica-
tion.
Humes, L.E., Schwartz, D.M., and Bess, F.H. Unpublished paper. Two experiments on
subtle mid frequency hearing loss and its influence on word discrimination in noise-
exposed listeners.
International Association of Industrial Accident Boards and Commissions. 1958. Noise in in-
dustry and its effect on loss of hearing.
Kell, R.L., et. al. 1971. Social effects of hearing loss due to weaving noise. In D.W. Robin-
son (Ed.), Occupational hearing loss. New York: Academic Press.
109
-------
Kraak, W., Ertal, H., Fuder, G., and Kacht, L. 1974. Risk of hearing damage caused by
steady-state and impulsive noise. J. of Sound and Vibration, 36(3): 347-359.
Kryter, K. 1973. Impairment to hearing from exposure to noise. J. Acoustical Society of
America, 53(5): 1211.1 234.
Kryter, K. 1975. Hearing impairment and damage risk from noise exposure. Testimony
presented in support of OSHA Noise Standard.
Kryter, K.D., Williams, C., and Green, D.M. 1962. Auditory acuity and the perception of
speech. J. Acoustical Society of America, 34: 1217-1262.
Johnson, D. Unpublished paper, January, 1979. Investigation of the use of an age correction
for purposes of compensation of a noise-induced hearing loss.
Lindeman, H.E. 1971. Relation between audiological findings and complaints by persons
suffering noise-induced hearing loss. J. American Industrial Hygiene Association,32:
447-452.
Lipscomb, D. 1975. What is the audiogram really telling us. Maico Audiological Library
Series, XIII: 5.
McCurdy, H.W. 1979. Uniform standard for evaluating hearing handicap. The American
Academy of Otolaryngology.
Miller, J. 1974. Effects of noise on people. J. Acoustical Society of America, 56, 3.
Mills, J. 1973. Temporary and permanent threshold shifts. J. Speech and Hearing
Research, 16(3): 426-438.
Mullins, C.J., and Bangs, J.L. 1957. Relationship between speech discrimination and other
audiometric data. Acta Otolaryngology,47: 49-157.
Murry, T., and Lacroix, P.G. 1972. Speech discrimination in noise and hearing loss at 3000
Hz. Nay. Sub. Med. Res. Lab. Report No. 719, Groton, Conn.
National Academy of Sciences. 1979. CHABA Working Group 81, Draft Report. The effects
of long term exposure to noise upon human health.
National Commission on State Workmen’s Compensation Laws. 1973. Compendium on
workmen’s compensation. Washington: Government Printing Office.
Niemeyer, W. 1967. Speech discrimination in noise-induced deafness. International
Audiology, 6: 42-47.
NIOSH - National Institute for Occupational Safety and Health. 1972. Criteria for a
recommended standard . . . occupational exposure to noise. HSM 7311001.
Washington, D.C.: HEW.
110
-------
NIOSH - National Institute for Occupational Safety and Health. 1975. Survey of hearing
conservation programs in industry. Cincinnati: NIOSH.
New York Journal American. 1951.
New York Worker’s Compensation Board. 1953. Report of consultants on occupational loss
of hearing.
Norfolk Virginian Pilot. 1978. Yard employee guilty in hearing loss fraud. B4.
Petrysbym, W.A. 1977. Occupational hearing loss. J. of the Medical Society of New Jersey,
74(1): 21-24.
Plomp, R. 1978. Auditory handicap of hearing impairment and the limited benefit of hearing
aids. J. Acoustical Society of America, 63(2): 333-549.
Quinn, R. and Staines, G. 1978. The 1977 Quality of Employment Survey, Ann Arbor:
Survey Research Center, University of Michigan.
Quist-Hanssen, S., and Steen, E. 1960. Observed and calculated hearing loss for speech in
noise-induced deafness. Acta Otolaryngology., Suppl. 158.
Robinson, D.W., (Eds.). 1971. Occupational hearing loss. (British. Acoustical Society
Special: Vol 1) New York: Academic Press.
Royster, L.H., Thomas, W.G., et. al. 1978. Potential hearing compensation cost by race and
sex. J. Occupational Medicine, 20, (12) 801-806.
Solidarity. 1978. Detroit: United Auto Workers.
Suter, A. 1978. The ability of mildly hearing-impaired individuals to discriminate speech in
noise. Joint EPA/AMRL Report. Washington: E.P.A.
Union Voice. 1979. Melrose Park, Illinois: Local 6, United Auto Workers.
United States House of Representatives, Committee on Government Operations. 1976b. Ad-
ministration of the Federal Employees’ Compensation Act, 39th Report. Washington,
D.C.: Government Printing Office.
United States House of Representatives, Committee on Government Operations. 1976b.
Federal workers compensation programs, 141-153. Washington, D.C.: Government
Printing Office.
U.S. Department of Health, Education and Welfare Public Health Service. 1965. Hearing
levels of adult by age and sex, United States - 1960-1962. Series 11, No. 11, Washing-
ton, D.C., National Center for Health Statistics.
111
-------
Vernon, J. 1978. The other noise damage: tinnitus. Sound and Vibration, 12 (5): 26.
Ward, W.D. 1969. Effe ts of noise on hearing thresholds. Noise as a public health hazard.
Washington, D.C.: American Speech and Hearing Association.
Westerman, T. 1975. Noise pollution: Practical aspects concerning workers worldwide. The
Eye, Ear, Noise, and Throat Monthly, 54: 42-52.
Wood, M. 1953. Occupational deafness--real or imaginary. Kansas City: International
Brotherhood of Boilermakers, Blacksmiths, Forgers, and Ironshiphuilders, 21.
Zenz, C. 1972. Occupational hearing loss compensation. American foundrymen ‘s manual.
American Foundrymen’s Society.
Statutes and Administrative Rules
Federal Employees Compensation Act, as amended, 1977.
Longshore and Harbor Workers Compensation Act Bulletin, 13-76 (1976).
Longshore and Harbor Workers Compensation Act, Claims Regulations, 20 CFR, 701-704.
Missouri Statutes, Chapter 287.
Missouri Statutes 102.555 and Rule 80.25: Loss of Hearing.
Workmen’s Compensation and Rehabilitation Law, 1963 Model Statute, Council of State
Governments, Lexington.
Federal Court Cases and Board Decisions
Beggs, ECAB, Docket 77-310 (1977).
Berman and Naval Air Station, Norfolk, ECAB, Docket 78-248 (1978).
Chapman and FBI, San Antonio, ECAB, Docket 78-227 (1978).
Hinkle vs. H.J. Hein. ’, 337 Pa 2nd 907 (1975).
Moore and Philadelphia Navy Yard, ECAB, Docket 78-227 (1978).
112
-------
Robinson vs. Bethlehem Steel, BRB, 175-241 (1976).
Sabatini and Philadelphia Navy Yard, ECAB, Docket 78-0227 (1978).
Shelton vs. Washington Post Co., BRB, 76-358 (1977).
Shoop vs. U.S. Steel Corporation, Docket 3615, Court of Common Pleas, Allegheny Cty.
(1972).
Smalls and Charleston Naval Shipyard, ECAB, Docket 78-293 (1978).
Swift vs. Washington Post Co., OWCP 40-70992 (1978).
State Court Cases and Board Decisions
Adams vs. Industrial Commission of Arizona, 12681 PR, Arizona Supreme Court, Arizona
(1976).
Allied Products Corporation vs. Esgro, IRC Order 2-3420, Florida (1978).
Green Bay Drop Forge vs. Wisconsin Industrial Commission and Albert Wocjik, 265
Wisconsin 38 (1953).
Martinez vs. Taylor Forge and Pipeworks, Indiana Court of Appeals, Indiana (1977).
Minis and Thomas Manufacturing Company vs. Ferguson, 340 So 2d. 920, Florida (1976).
Rhoton vs. Bower Roller Bearing, Michigan WC Board Decisions, p. 302 (1978).
Siebert vs. North Point Cottage Owners Association, 378 Mich 661 (1978).
Slawinshi vs. J.H. Williams and Co., 298 New York 546 (1948).
Weishinger vs. Minneapolis Star and Tribune, Workers Compensation Court of Appeal,
Minnesota (1976).
Winkleman vs. Boeing Airplane Company, 203 P. 2nd 171, Kansas Supreme Court, Kansas
(1949).
113
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TECHNICAL REPORT DATA
(P/east read Instructions on the relersc before corn pieting
1. REPORT NO. 2.
EPA 550/9-79-101
4. TITLE AND.SUBTJTI .
Occupational Hearing Loss - Workers Compensation
Under State and Federal Programs
3. RECIPIENTS ACCESSION NO.
5. REPORT DATE
September 1979
6. PERFORMING ORGANIZATION CODE
7. AUTNOR(S)
Dr. Richard E. Ginnold
8. PERFORMING ORGANIZATION REPORT NO.
9. PERFORMING ORGANIZATION NAME AND ADDRESS
University of Wisconsin
School for Workers
Me cfison, Wisconsin
12. SPONSORING AGENCY NAME AND ADDRESS
Environmental Protection Agency
Office of Noise Abatement and Control (ANR 471)
Washington, D.C. 20460
10. PROGRAM ELEMENT NO.
11.CONTRACT/GRANTNO.
13. TYPE OF REPORT AND PERIOD COVERED
Final Report
14.SPONSORINGAGENCYCODE —
EPA/ONAC
15. SUPPLEMENTARY NOTES
16. ABSTRACT
This report investigates the status of State and federal workers compensation
programs for noise induced hearing loss and the equity and effectiveness of their
hearing loss claims provisions. Presented is a detailed examination of State and
federal hearing loss claims activity, existing compensation claims procedures, their
scientific and technical basis, and some of the background judicial decisions and
medical, social, political , and economic forces historically influenced in the
development of compensation programs for noise induced hearing loss. Included as
well are recommendations and suggestions for further research and the incorporation
of less restrictive and more technically appropriate compensation provisions and
criteria to improve the technical basis of State and federal compensation programs.
17. KEY WORDS AND DOCUMENT ANALYSIS
a. DESCRIPTORS
Noise Induced Hearing Loss
Workers Compensation
Hearing Loss Formulas
Office of Workers Compensation Programs
b.IDENTIFIERS/OPEN ENDED TERMS
C. COSATI licid/Group
18. DISTRIBUTION STATEMENT
Limited Supply Available at EPA/ONAC
and Research Triangle Park, S.C.
19. SECURITY CLASS (This Report)
UNCLASSIFIED
21. NO. OF PAGES
20.SECURITYCLASS(Thispage)
UNCLASSIFIED.
22.PRICE
£PA form 2220.1 (p.73)
( D MU T PRI I G OJSCI Sf9 - 2i 1—147 / 121
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