Hearing loss under the Longshore and Harbor Workers’ Compensation Act, as extended by the Defense Base Act, is compensated under Section 8(c)(13) as a scheduled injury, resulting in a scheduled award. It is a traumatic injury in that the harm occurs immediately upon exposure.
Hearing loss is determined by the use of a professional audiologist who will perform an audiogram. The audiogram will show the percentage loss of hearing in each ear, and that can then be used to determine your overall hearing loss.
There are two types of hearing loss under Section 8(c)(13). The first is monaural hearing loss, which simply means a loss of hearing in one ear. A 100% loss of hearing in one ear results in 52 weeks of compensation at the appropriate compensation rate. For example, if you have a 30% loss of hearing in one ear only, you will be paid for 15.6 weeks of compensation at the appropriate compensation rate(30% of 52 weeks).
The second type of hearing loss is binaural hearing loss, which simply means loss of hearing in both ears. A 100% loss of hearing in both ears results in 200 weeks of compensation. Fortunately, not many injured longshoremen or contractors have a 100% loss of hearing in both ears. To use a more realistic example, a longshoreman or contract may have a 15% binaural loss of hearing. This would result in 30 weeks of compensation at the appropriate compensation rate.
In certain cases, it may be difficult to get the insurance company like AIG or CNA to accept your hearing loss claim. Fortunately, the Longshore Act provides for certain benefits and presumptions for the injured longshoreman or contractor. For example, the Section 20(a) presumption of causation applies to all hearing loss claims. Thus, a prima facie case of hearing loss can be established based on testimony that an injured longshoreman or contractor was exposed to loud noises in the workplace, such as being around planes, generators, fire trucks, etc… Of course, having a pre-employment audiogram can help.
The insurance carriers also have certain defenses to your claim. The Aggravation Rule applies to all hearing loss claims. This would apply if you sustained hearing loss with Employer #1, then went to work for another covered employer, Employer #2. It would be a question for an administrative law judge to determine which employer would be responsible for your hearing loss.
It is also important to take note of time limitations for filing of hearing loss claims. Under section 12 and 13 of the Longshore and Harbor Workers’ Compensation Act (LHWCA), the time limitation for filing a hearing loss claim does not begin to run until the claimant has an audiogram which shows a hearing loss, receives the results and the accompanying report, AND is aware of the relationship between his work and his hearing loss.
If the Carrier has stopped your benefits and has alleged that they are no longer responsible for your injury due to an aggravation, it is important to retain competent counsel to represent you. This is just one issue that may arise in a typical Longshore/Defense Base Act (DBA) claim.Attorneys J o Ann Hoffman & Associates, P.A. handles Longshore and Defense Base Act claims throughout the country. Feel free to contact us for a free consultation regarding your case.