Workers’ compensation is a critical safety net for both employees and businesses. In Louisiana, navigating a claim for noise-induced hearing loss can be a complex process. For employers, understanding the legal landscape is essential to ensure compliance, reducing exposure, raising appropriate defenses, and avoid penalties. Below is a general guide to handling and defending workers’ compensation hearing loss claims in Louisiana.
Hearing Loss is Defined as an “Occupational Disease,” Not an “Accident” in Louisiana
There is a crucial distinction in Louisiana law is between an “accidental injury” and an “occupational disease.” Gradual, noise-induced hearing loss is classified as an occupational disease under Louisiana law and Louisiana Supreme Court jurisprudence. This simply means that the alleged hearing loss is not the result of a single, sudden event, but rather a condition that develops over time due to “causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment.”
The Burden of Proof and Causation
While workers’ compensation is a “no-fault” system, the employee or former employee still bears the burden of proving that their hearing loss was contracted during the employment and was a result of the nature of work performed. This must be established by a reasonable probability – it must be more than a mere possibility. Employers should not automatically assume each hearing loss claim is valid. The employee must provide medical evidence that demonstrates the hearing loss was caused by their work environment.
The “Last Injurious Exposure” Rule
Many employees who file hearing loss claims have worked for multiple employers in loud environments over a lengthy career. Louisiana law provides that the last employer whose employment contributed to the employee’s disabling occupational disease is generally responsible for the entire workers’ compensation obligation. This means that if a former employee files a hearing loss claim against an employer, the employer may be liable for the full cost of all workers’ compensation benefits if that employer was the last employer where the employee experienced “injurious exposure” to noise. This is true even if the employee worked elsewhere for years. While undoubtedly a harsh result, courts have consistently applied this standard in these claims.
How Late Can a Hearing Loss Claim be Brought?
The prescriptive period for an occupational disease claim is one year. This one-year clock does not start until all three of the following conditions are satisfied:
- The occupational disease manifested itself (i.e., the symptoms are noticed).
- The employee is disabled from working as a result of the disease.
- The employee knows or has reasonable grounds to believe the disease is job-related.
This differs from a traditional injury claim, which typically must be commenced within one year of the injury occurring. As a result, many of these hearing loss claims are filed years after the employee has left your employment, whether by retirement or termination. Periodic hearing tests of employees, noise studies throughout the employers’ facility, sound reduction protocols, personal protective equipment signage, and thorough record keeping can be helpful in defending these claims.
Benefits Available to Hearing Loss Claimants
If a hearing loss claim is successful, the employer can be liable for related medical treatment. In addition to medical treatment, the employer could be liable for an employee’s hearing aids and indemnity (or wage) benefits. Although gradual hearing loss does not qualify for permanent disability benefits, an employee with established noise induced hearing loss could be eligible for Supplemental Earnings Benefits (“SEBs”). The employer may be required to pay SEBs if the employee can establish that their hearing loss condition prevents them from earning 90% or more of their pre-injury average weekly wage (“AWW”). Employee-Claimant’s typically offer their treating physician’s opinion that their hearing loss prevents them from holding the occupation they previously held. Notably, SEB payments are limited by law to a maximum of 104 weeks – still substantial exposure.
Calculating the Average Weekly Wage (AWW)
Accurately calculating the AWW is critical for determining indemnity benefits – whether SEBs or otherwise. The AWW rate can also be affected by the date that the employee stopped working. By statute, there is a maximum cap on the weekly rate of indemnity benefits that an employee can recover, which differs based on the employee’s final date of employment.
Avoiding Penalties and Attorney’s Fees
Louisiana law provides for penalties and attorneys’ fees if an employer fails to “reasonably controvert” a claim. Generally, this requires the employer to conduct a thorough, factual investigation before denying benefits.
In summary, managing a workers’ compensation claim for gradual, noise-induced hearing loss requires a proactive and informed approach. By understanding the unique legal standards and procedural requirements outlined above, employers can effectively and efficiently handle hearing loss claims while maintaining compliance with Louisiana law.
Forrest Guedry and Lance Delrie are members of Kean Miller’s Casualty and Mass Tort Litigation group, which manages litigation dockets and tries cases for some of the leading companies in the United States. The team defends clients locally, regionally, and nationally in a wide variety of claims involving wrongful death, bodily injury, industrial accidents, chemical release or exposure, products liability, medical malpractice, workers compensation, as well as breach of contract and business disputes.