Permanent, work-related hearing loss can result when an employee is exposed to an unexpected loud noise, like an explosion at a manufacturing plant. However, many cases of occupationally-related hearing loss are caused by excessive noise exposure over months, or years in a work environment that is too loud. Difficulty hearing or understanding spoken words happens to most of us as we age, so it isn't always easy to identify a progressive hearing loss problem as work-related. It is even more difficult finding good information about what to do if you suspect that your worsening hearing problem is caused by your job.
Most employers whose employees are routinely exposed to loud noises at work require a base line hearing test when the employee is hired, and then an annual hearing test. Police officers and fire fighters, for example, are required by law to undergo an annual hearing test, called an audio gram, when the annual heart and lung medical exams are done. Police officers may wear protective hearing gear when re-certifying their weapons permits, but hearing protection obviously isn't handy during a shoot out, or during a chase with sirens wailing, or when on traffic patrol.
Large employers with loud equipment or very noisy work environments must hire occupational hygienists to measure noise levels to ensure compliance with national health and safety standards and to satisfy their insurers' loss control programs. A contested hearing loss claim might involve experts who disagree about what the noise exposure really is for an employee who is claiming hearing loss. Most denied hearing loss claims however, are denied because the insurer says that the employee knew about his hearing loss for weeks, months, or years before he or she filed a compensation claim. Those denials by the insurer are often upheld simply because the employee was confused about when to file a claim and what information to put on the claim form.
The same C-4 Claim for Compensation form used for work injuries caused by accidents is used for occupational illnesses, including occupational hearing loss. The box on the form that asks when the accident happened isn't relevant to an occupational hearing loss that happens gradually over time. Nonetheless, clinics insist that the employee fill in a date on that box. Sometimes the office personnel at the medical clinic will direct the employee to write in the date that the employee first noticed a hearing problem.
Nevada law requires that employees report occupational illnesses within 7 days. However, an employee rarely tells his employer about a hearing problem when the employee first notices that he or she is hard of hearing, unless the hearing loss results from a loud explosive-like noise. Usually, the employee has co-workers or family complain about having to repeat themselves before the employee takes the problem seriously. Ordinarily, there is a decrease in hearing ability long before most people are motivated to get their hearing tested.
In order to avoid a denial of this important claim, however, the employee should complete a written Notice of Occupational Disease with the employer, and ask the employer where to go to complete a Claim for Compensation form as soon as the employee suspects an occupational hearing loss. The decision to wear amplification can always be made later, once the claim is accepted.
Hearing aids are expensive. Hearing loss claims often require a reopening every couple of years to replace batteries or outdated equipment, particularly if the hearing loss is progressive. Additionally, the employee may be entitled to a permanent partial disability award for the occupational hearing loss. Don't overlook your right to benefits under the Nevada Occupational Disease Act for a hearing loss that is caused by occupational noise exposure.
--Written by Virginia Hunt, Hunt Law Office
Given the 114 degree heat this week, I've had several calls from people wanting to know whether illnesses caused by excessive heat while working outdoors are compensable. The law in Nevada has not been supportive of injury or illness claims arising out of all job conditions.
In 1960, the Nevada Supreme Court held in Smith v. Garside, 76 Nev. 377, that a printing plant worker who got a chest infection, which later developed into a more serious illness, did not have a compensable occupational disease or injury claim. The worker alleged that she got sick because her employer did not properly heat her workkplace. The court held that her illness caused by exposure to the cold work building was not "incidental to the character of the business", and because her illness "could have been from a hazard to which she would have been equally exposed outside of the employment."
This old case was cited by the Nevada Supreme Court most recently in 1992 in Palmer v. Del Webb, 108 Nev. 673. Palmer was a gaming pit boss who contracted obstructive lung deasese from the smoke-filled casino where he worked. The Court likewise ruled that Palmer did not have a compensabe occupational disease because the smokey environment was not incidental to the casino business and the claimant could have been equally exoped to second-hand smoke when not at work.
If a construction worker gets heat stroke from working in the hot July sun in Las Vegas, will his claim be accepted? If the claim consists of just one visit to a workers' comp provider, my experience is that the ajuster will probably pay for that doctors' visit. However, if one ER visit turns into something more seriouos, then the claim will probably be denied
--Written by Virginia Hunt, Hunt Law Office
While there are no recent statistics, I know from my experience that the majority of claims filed by injured workers in Nevada for carpal tunnel syndrome are initially denied. Carpal tunnel syndrome presents as numbness, tingling, and pain primarily in the first three fingers and the thumb side of the hand. It results from compression of the median nerve that travels through the wrist. Symptoms often occur or worsen at night and after sleeping. In a typical case, the injured worker begins to have symptoms, and only after months of hoping that the symptoms will go away in time, files a claim when the symptoms are so bad that they interfere with work.
From the injured worker's perspective, because symptoms get worse with work activity, work must be the cause of the problem. However, when the worker reports the problem to her employer, and then goes to the designated clinic to file a claim, the examining physician usually is unwilling to state that the problem is work-related. Most often, the diagnosis on the C-4 claim form is "tendinitis", and the doctor puts a question mark by the question asking whether the occupational disease or injury is work-related.
Adjusters usually deny the claim when they see that the physician is unable to connect the problem with work activity. Some times the adjuster denies the claim "under medical investigation", but is willing to allow the worker to see a hand specialist. If the adjuster simply denies the claim, then the worker must use private insurance or pay for a consultation with a hand specialist to obtain a report that more accurately diagnoses the problem and more definitively states whether the problem was caused by the job.
An experienced hand specialist (orthopedic physician) may not need additional diagnostic testing to diagnose carpal tunnel syndrome. However, insurers usually want to see positive nerve conduction studies and electromyography to accept a CTS diagnosis. Secondly, the hand specialist must be able to report that there is a direct causal connection between the CTS and the patient's occupation. In order to do that, the hand specialist must exclude the nonoccupational risk factors for CTS that include increased age, pregnancy, diabetes, rheumatoid arthritis, and obesity, and sex. ( There is a higher incidence of CTS for females).
The hand specialist should take a detailed medical history so that nonoccupational risk factors can be excluded, and the patient should discuss in detail the work activity and job requirements that the patient believes contributed or caused the symptoms. If possible, provide the hand specialist with a copy of the employer's written physical description of the job. The hand specialist will be looking for occupational risk factors of repetitive hyperflexion and twisting of wrists, prolonged use of handheld vibratory tools, forceful and repetitive grasping, and awkward wrist positions. The scientific data on whether prolonged use of computer keyboards causes CTS is conflicting according to the AMA Guides to the Evaluation of Disease and Injury Causation (2008). However, I have found that the reputable local hand surgeons in Las Vegas will draw their own conclusions as to each patient when keyboard activity is questioned as to the cause of CTS.
Carpal tunnel syndrome can be covered under the Nevada Occupational Disease Act. The key to successfully presenting a claim and having it accepted is proper medical documentation of the problem and its relationship to the worker's particular occupational activities. These are difficult claims, however, because the initial treating physician often does not have sufficient information to state that it should or should not be accepted as a workers' compensation claim. Denied claims must be appealed within the 70 day appeal time regardless of whether the worker has completed her own medical investigation with her own doctors. These claims can be successful with the help of a skilled attorney.