HEARING LOSS AND WORKERS’ COMPENSATION: NOISE EXPOSURE AND INDUSTRIAL INJURY: WHAT YOU NEED TO KNOW

Hearing Loss, if there is industrial contribution, can be grounds for a workers’ compensation claim.  A workers’ compensation claim, if successful, would allow the Injured Worker to claim monetary benefits, medical care, and vocational rehabilitation benefits.   For Hearing Loss cases, if medically indicated, the Injured Worker would be entitled to be supplied Hearing Aids as long as they are deemed medically necessary pursuant to Labor Code Section 4600.

Hearing Loss can be caused for a variety of reasons.  One of the sources is noise.  Definitionally, it is called “Noise Induced Hearing Loss.” (NIHL)

This article will discuss “Noise Induced Hearing Loss”, how “Noise Induced Hearing Loss” can be work-related, what Occupations are susceptible to hearing loss, and other possible causes for industrial hearing loss.

Is there a Historical Legal Basis for Work-Related Hearing Loss?

Caselaw has supported work-related hearing loss.   In Messner vs. IAC, (1962) 27 Cal. Comp. Cases 226 (writ denied) it is quoted “[w]hile the distinction between the etiological mechanics of continuous trauma and disease may be elusive in its application to a particular set of facts, there is a considerable difference in the legal consequences flowing therefrom. The Commission has long taken the position that hearing loss is an occupational disease. We do not believe that we can alter the theory to fit the facts.” [emphasis added]

How is Noise Induced Hearing Loss (NIHL) Caused?

Noise-induced hearing loss (NIHL) occurs when loud noise causes an irreversible damage of the cochlear hair cells of the inner ear. This can occur by exposure to either intermittent or continuous hazardous sounds.  Hazardous noise sound levels can occur when they exceed 85 decibels.

What Type of Doctor Addresses Hearing Loss?

The field of medicine that addresses hearing loss is Otolaryngology.  Doctors within the specialty focus on the ears, nose and throat.  There are referred to as Otolaryngologists or also known as ENT (Ear, Nose, and Throat) Doctors.

Are There Controversies with Respect to Work-Related Hearing Loss?

Yes. There are controversies with respect to hearing loss claims.   They include causation and disability.

CAUSATION

An excellent example of an analysis of causation comes from the case of Kaiser Cement vs. WCAB (1986) 51 Cal. Comp. Cases 232 (Opinion Not Published.) The doctor opining non-industrial causation went through the following analysis. Bear in mind that this is a long analysis. While the WCAB did not side with this doctor, it clearly shows the depth and the analysis that will be done when a doctor evaluates a NIHL claim.

“The audiology report submitted by Dr. Billings noted noise exposure consisting  of use of rifles and 22-millimeter guns without hearing protection while applicant was in the Navy from 1942 to 1945, as well as noise exposure on the job at Kaiser Cement. Dr. Billings described the occupational noise exposure at Kaiser Cement as “Mill noise about 20% of the time while employed as a laborer by Kaiser Cement from 1966 to 1968 and about 50% of the time while employed as an electrician/oiler by Kaiser Cement from 1973 to 1979. [Applicant] was also exposed to conveyor belt noise, motor noise and fan noise while employed as a cooler tender by Kaiser Cement from 1968 to 1973 and he was exposed to noise from dozers, graders, scrapers and loaders while employed as a heavy equipment operator by Kaiser Cement from 1979 to 1984. [Applicant] did not wear ear protection from 1966 to 1973 but he did wear ear plugs whenever exposed to intense noise from 1973 on. Cement mill noise, conveyor belts, motors, fans and heavy equipment such as dozers, graders, scrapers and loaders can generate noise levels that are hazardous to hearing without the use of ear protection.”

Dr. Billings further reported nonoccupational noise exposure consisting of applicant’s recreational use of shotguns, rifles and pistols approximately 15 times between 1946 and 1984. Dr. Billings further noted that presbycusis (hearing loss due to normal aging) usually begins at about 45 years of age in males. Because the applicant was 58 years of age at the time of evaluation, Dr. Billings reported presbycusis as a causative factor related to his hearing loss. Dr Billings concluded, “It is most probable that at least a portion of [applicant’s] present hearing loss was caused by all of the above factors and that his noise exposure at Kaiser Cement was the major causative factor of the noise causative factors. It is also most probable that some other unknown medical factor caused a significant portion of [applicant’s] present hearing loss. This opinion is based on the fact that [applicant’s] present hearing loss is considerably more severe than would be expected from his noise exposure and presbycusis …. [M]ost employees who are exposed to intense occupational noise all day every day during a working lifetime of 21 years without wearing ear protection will not incure a hearing loss at 1,000 Hz and lower frequencies. In addition, it is generally accepted that a noise-induced hearing loss will reach a maximum level of about 70 dB HL, regardless of the number of years of exposure. Since [applicant’s] hearing loss in both ears exceed these criteria considerably, it must be concluded that some other medical causative factor is responsible for a significant portion of [applicant’s] present hearing loss in addition to his noise exposure and presbycusis. It is recommended that [applicant’s] hearing loss due to noise exposure be calculated as being 0 dB HL at 500 and 1,000 Hz and as being the maximum noise-induced hearing loss of 70 dB HL at 2,000 and 3,000 Hz in both ears. Using these levels in the AAO method for calculating percent hearing handicap …, [applicant] would have a 15% hearing impairment of the right ear, a 15% hearing impairment of the left ear and a 15% binaural hearing handicap. Using these levels for calculation gives [applicant] the benefit of the doubt since these levels are based on 21 years of full-time exposure to intense occupational noise without wearing ear protection while [applicant] was only exposed to noise about 20% of the time from 1966 to 1968 without wearing ear protection, he was exposed to noise all of the time (including many 12 to 18 hour days) from 1968 to 1973 without wearing ear protection and although he was exposed to noise from 1973 on (including many 16 hour days from 1979 to 1984), he wore earplugs during all of his noise exposure from 1973 on and he reported that the earplugs were effective in reducing the background noise levels.””

PERMANENT DISABILITY

Hearing Loss becomes a Permanent Disability when the testing reaches a certain level. Currently, the AMA Guides for Rating Permanent Impairment, 5th Edition apply.

The following is an analysis of hearing loss that was made under the old non-AMA Permanent Disability Schedule.  This case provides insight as to how a doctor will make a no Permanent Disability assessment.  In Fleming vs. WCAB (1975) 40 C.C.C. 642, “Dr. Charles Lebo in his reports dated August 17, 1973 and September 24, 1974 indicated that Fleming had a minor bilateral high frequency hearing loss and that noise induced hearing losses are permanent, non-progressive, untreatable and non-disabling. Dr. Lebo also stated that the “regular use of approved ear protectors” would let Fleming continue to work in his regular occupation “without the risk of further noise-induced ear damage.””

What Types of Industries/Occupations are Subject to Hearing Loss?

There are various industries that can be subject to hearing loss claims.  They include industries such as agriculture, airline, construction, law enforcement, mining, oil railroad, refining, safety, textile, and trucking. See Occupational Noise-induced Hearing Loss MH Azizi Int J Occup Environ Med Vol 1, No 3 (2010)

Further, there are occupations like Dentists, Professionals, and Trucking that are at risk of NIHL.

Besides NIHL, Are There Other Occupational Sources of Hearing Loss?

Yes. There are other Occupational Sources of Hearing Loss.  Hearing Loss can be caused by ototoxicity. “Ototoxicity is, quite simply, ear poisoning (oto = ear, toxicity = poisoning), which results from exposure to drugs or chemicals that damage the inner ear or the vestibulo-cochlear nerve.” Vestibular Disorders Organization. “Many chemicals have ototoxic potential, including over-the-counter drugs, prescription medications, and environmental chemicals.” Supra.

What If I Need Legal Advice?

If you would like a free consultation concerning any workers’ compensation case, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 28 years.

“WET-WORK” EXPOSURE AND SKIN-RELATED INJURIES: DERMATITIS AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

 Some occupations require workers to perform tasks involving liquids.  Some occupations involve workers immersing their hands in liquids throughout the day.   This exposure to liquid is referred to in literature and in occupational studies as “Wet Work.”

“Wet Work” Exposure encompasses activities of frequent contact with liquids. This “Wet Work” Exposure can lead to the development of Skin Disorders.   Since these activities are work-related, the Injured Worker suffering from “wet work” skin disorder can make a workers’ compensation claim.  A workers’ compensation claim may entitle the Injured Worker to obtain monetary disability benefits, medical treatment, and vocational retraining.

Occupational Skin Disorders constitute a large portion of work injuries.  They rank only second to musculoskeletal disorders.  They represent greater than 45 percent of occupational illnesses. Wet-work Exposure: A Main Risk Factor for Occupational Hand Dermatitis  Ali Behroozy1 Tessa G. Keegel https://doi.org/10.1016/j.shaw.2014.08.001  Contact Dermatitis makes up 80 percent of all occupational skin disorders. Supra.

This article will discuss “Wet-Work,” industrial “Wet Work” Skin Disorders, Occupations that are at risk for “Wet Work” Skin Disorders , and Permanent Disability as a result of such “Wet Work” Skin Disorders.

What Is Wet Work?

Wet Work becomes a problem with respect to Worker’s skin when there is significant frequency and duration of activities that involve liquids.  Researchers have defined the criteria as to how much frequency and duration constitutes “Wet Work.” Wet-Work has been “defined as activities where workers have to immerse their hands in liquids for >2 hours per shift, or wear waterproof (occlusive) gloves for a corresponding amount of time, or wash their hands >20 times per shift.” Supra.

How Is Wet Work Harmful to Workers?

Long or repeated exposure to water, along with the simultaneous effects of washing and cleaning agents, disenfectants, solvents, alkalis, and acids can damage the barrier properties of stratum corneum and underlying skin layers (living epidermis). Working with gloves also can cause injury as well to the skin.  Supra.

In sum, liquid exposure essentially compromises the dermis. This can lead to irritation of the skin. This irritation can continue to fester if the acts of performing “Wet Work” continued.   This continued irritation can lead to skin diseases and disorders.

Also, implicated within “Wet Work” is not only the use of the liquids.   The frequently drying off the hands is also part of the harmful process to the skin.

What Skin Conditions Can Arise from “Wet Work?”

There are a variety of Skin Conditions that can arise from “Wet Work.” They include Acneiform Dermatitis, Allergic Contact Dermatitis, Cumulative Irritant Dermatitis, Eczema, Frictional Dermatitis, Hyperkeratotic Hand Dermatitis, Irritant Contact Dermatitis, Maceration, Pustular Dermatitis, and Traumatic Irritant Contact Dermatitis.

Contact Dermatitis, the AMA Guide for Rating Permanent Impairment, 5th Edition, describes the condition as an “inflammatory skin reaction induced by exposure to an external agent and is the most frequent cause of occupational skin disease.”  It notes that the two common types of contact dermatitis is irritant which is 80 percent of the cases.   This represents direct tissue damage.  The Allergic Contact Dermatitis involves delayed cellular hypersensitivity.

There are many substances that can irritate with respect to being an allergen agent  Per the AMA Guides, it is noted that “[m]any cutaneous allergens, such as chromates, nickel salts, epoxy resins, and preservatives, are also primary irritants. Allergy can be induced or maintained by chemicals in concentrations insufficient to irritate nonallergic skin. Allergen

cross-sensitivity is an important phenomenon in which an individual who is allergic to one chemical (eg, urushiol in poison ivy or poison oak) also will react to structurally related chemicals (eg, in Japanese lacquer, mango, and cashew nutshell oil).”

What Occupations Engage in Wet Work?

There are many occupations that involve “Wet Work.” This includes agriculture, beautician services, catering, construction, dish washing, domestic workers, engine serving, flower arranging, food preparation and processing, hairdressing, healthcare workers, household cleaning, leather work, machine tool operation, manufacturing, metal machining, metal plating, metal treatment, metal work, nursing, painting,  and printing.

Do “Wet Work” Injuries Translate Into Permanent Disability?

Yes.

The AMA Guides for Rating Permanent Impairment, 5th Edition, notes that the “[a]ccurate diagnosis is the key to proper management of contact dermatitis. If the specific agent(s) can be identified … and successfully avoided, full recovery usually is anticipated; but if contact continues, the dermatitis may become chronic and disabling, and it may prevent the individual from performing some activities of daily living.” AMA Guides at P. 177. [emphasis added]

 The concept of “Wet Work” injuries resulting permanent disability is longstanding within California Workers’ Compensation Law.  Prior to the adoption of the AMA Guides to determine impairment, the 1997 Schedule for Rating Permanent Disabilities Under the Provisions of the Labor Code Section of the State of California, 1997, provided for a permanent disability relating to “wet work.”  At the time, permanent disability was rated by actual or prophylactic work restrictions.  In the Schedule, under the Skin Condition Section, 6.2, there was work restriction “Precluding Wet Work.”  It was defined as a restriction that “contemplate[d] [that] the individual must avoid more than incidental contact with water, and/or other liquids provide for a 25% standard disability.  Page 2-6.  Note: This illustrates that Workers’ Compensation Law recognized the value the ability of an Individual to be able to perform “wet work” activities in the open labor market.

Under the current law, the AMA Guides apply. Under the current Rating Schedule, the AMA Guides for Rating Permanent impairment, 5th Edition, on P. 178, has a table that can be used to address a skin impairment caused by “wet work.”  There is a table which is entitled the “Criteria for Rating Permanent Impairment Due to Skin Disorders,” Table 8-2, which is one table that can apply to assigning whole person impairment to “wet work” skin injuries.

Under the AMA Guides, Table 8-2, the table requires the evaluating physician will look at three items of import.  First, the presence of skin disorder signs and symptoms, second, the effect that the skin disorder has on the performance of activities of daily living, and third, the need for treatment in terms of nature, extent and duration.

In sum, permanent disability, for these skin conditions, will be assessed on an individual basis.   Generally speaking, a Physician who specialized in Dermatology should be making the assessment.

What If I Need Legal Advice?

If you would like a free consultation concerning any workers’ compensation case, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 28 years.

BREAST CANCER, JOB CATEGORY, OCCUPATIONAL ACTIVITY AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

In the workplace, there are certain activities that makes one susceptible to work injury or illness.

A recent study examined Breast Cancer in relation to Job Category and Occupational Activity. Information from this study may assist an Worker on whether they should consider filing a claim for Breast Cancer.

This article will discuss Breast Cancer and the association it has with respect to Job Category and Occupational Activity and Workers’ Compensation.

What Is Breast Cancer?

Per the CDC, Breast Cancer is “a disease in which cells in the breast grow out of control. There are different kinds of breast cancer. The kind of breast cancer depends on which cells in the breast turn into cancer.”

There are different kinds of Breast Cancers.   Some are more common than others.  The more common Breast Cancers are invasive ductal carcinoma and invasive lobular carcinoma.   Also, there are less common Breast Cancers that include Paget’s Disease and Inflammatory Breast Cancer.  Further, there is Ductal Carcinoma in Situ which is a breast disease which may lead to breast cancer.  CDC.

What Was Studied with Respect to Breast Cancer?

A recent study addressed whether job category or occupational activity were a risk factor with respect to Breast Cancer.  Association of job category and occupational activity with breast cancer incidence in Japanese female workers: the JACC study Gita Nirmala Sari, Ehab Salah Eshak, Kokoro Shirai, Yoshihisa Fujino, Akiko Tamakoshi & Hiroyasu Iso  BMC Public Health volume 20, Article number: 1106 (2020)

The study did the following analysis and found that “[t]here were 138 incident cases of breast cancer during 13.3 years median follow-up period. Office workers compared with manual workers were at a higher risk of breast cancer after adjusting for reproductive health factors and physical activity indicators; the multivariable HR (95% CI) was 1.65 (1.07–2.55). Also, women who had mainly a sitting position during work compared with those moving during work had the higher risk: the multivariable HR (95%CI) of 1.45 (1.01–2.12). The excess risk of breast cancer was observed for office workers when time spent in walking was < 30 min/ day; HR (95% CI) was 1.11 (1.01–1.23), and for women mainly at a sitting position during work when time spent in walking was 30–59 min or < 30 min/day; HRs (95% CIs) were 1.87 (1.07–3.27) and 1.74 (1.07–2.83), respectively.”

What Did the Study Find?

The study found that certain work activities can be associated with breast cancer.   The study did an analysis as to the there is an association with respect to physical activities and Breast Cancer.   It found that “Office workers compared with manual workers were at a higher risk of breast cancer.” Association of job category and occupational activity with breast cancer incidence in Japanese female workers: the JACC study Gita Nirmala Sari, Ehab Salah Eshak, Kokoro Shirai, Yoshihisa Fujino, Akiko Tamakoshi & Hiroyasu Iso  BMC Public Health volume 20, Article number: 1106 (2020)

What was a Manual Worker for the Study? What was an Office Worker?

In the study, there was a focus on Manual (Active) Workers vs. Office (Inactive) Workers.

The study used a “self-administered questionnaire, participants were further asked to classify their job category into office, manual and others. Based on the Japan Standard Industry Classification (JSIC) published by the Ministry of Internal Affairs and Communication of Japan which included a wide range of specific jobs coded from 1 to 99 [22], the participants who answered the job category as others were allocated to manual (for examples; sales, restaurant, forestry, fisheries workers, etc.), office (for examples; clerk, postal, management staff, etc.), professional (for examples; health worker, judges, accountant, musician, etc.) and unclassified job categories. For the current research, we reclassified job categories into four categories namely manual, office, professional and unclassified. The occupational activity was classified according to the position during work as moving, mainly standing and mainly sitting. Association of job category and occupational activity with breast cancer incidence in Japanese female workers: the JACC study Gita Nirmala Sari, Ehab Salah Eshak, Kokoro Shirai, Yoshihisa Fujino, Akiko Tamakoshi & Hiroyasu Iso  BMC Public Health volume 20, Article number: 1106 (2020) [emphasis added]

What Was the Level of Physical Activity Used Within the Study?

The associations of the breast cancer risk with the job category and occupational activity were tested after the stratification by walking time (< 30 min/day, 30–59 min/day, or ≥ 1 h/day). [Note: walking time was the physical activity used to differentiate.]

What Does this Study Mean for Injured Workers Who Have Breast Cancer?

If you are a Worker who is succumbed with Breast Cancer, you should look to see if you fit within the framework of the study.  Please note that this study is not an exclusive of the proposed industrial causes of breast cancer.   This article is limited to the issue of activity and occupation.

Are There Other Studies Which Support the Theory of Decreased Physical Activity and Increased Risk of Breast Cancer?

There was a previous study which also supported the theory of increased activity and the reduction of the risk of breast cancer.  Physical Activity and the Risk of Breast Cancer Inger Thune, M.D., Tormod Brenn, M.Sc.,  Eiliv Lund, M.D., Ph.D., and Maria Gaard, M.D. May 1, 1997 N Engl J Med 1997; 336:1269-1275 DOI: 10.1056/NEJM199705013361801. The conclusion of the report was “Physical activity during leisure time and at work is associated with a reduced risk of breast cancer.”

What If I Need Legal Advice?

If you would like a free consultation concerning any workers’ compensation case, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 28 years.

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