Hear Today; Gone Tomorrow

Osha Expert Witness

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Steven D. High, MPH, MS, CIH, CSP, ARM, CHST, CXLT, Safety & Health / OSHA Expert ::::
Case Synopsis: A 57-year-old manufacturing employee who worked in a Pennsylvania assembly plant for 27½ years filed a workers’ compensation claim for hearing loss. The worker clearly had hearing loss based on the most recent audiogram data; however, hearing loss was also present in his initial audiogram when he started with the company many years ago. The employee worked in a paint department for the past 17 years of his employment.
The company had a progressive hearing conservation program which included periodic measurement of workplace noise by dosimetry, including areas that were traditionally quiet such as the paint department. Dosimetry measurements are preferred over basic sound level readings as they average direct noise exposures of an individual worker throughout a monitored working period.
The Pennsylvania workers’ compensation law defines hazardous noise by referring to OSHA’s regulation on hearing conservation. The term “hazardous occupational noise,” as used in this act, means noise levels exceeding permissible noise exposures as defined in Table G-16 of OSHA Occupational Noise Exposure Standards, 29 CFR 1910.95 (July 1, 1994 – Section 105.4). This noise survey data confirmed that hazardous noise was not present in the workers’ assigned work area.
Section 306 (8)(c) of the Act establishes rules of compensability of occupational hearing loss and specifically Section 306 (8)(c)(x) establishes employer defenses for hearing loss claims. “Whether the employee has been exposed to hazardous occupational noise or has long-term exposure to such noise shall be affirmative defenses to a claim for occupational hearing loss and not a part of the claimant’s burden of proof in a claim.”
Further, any claims for hearing loss are required to be filed within three years of the last exposure to hazardous noise. (Section 306(8)(ix)). Clearly the statute for filing a claim had expired, even if the individual’s loss had occurred at work. These facts provided for a settlement which favored the defendant.
Take Away Points: (A) Employers who have noise in their workplace must measure it and determine if it exceeds OSHA thresholds. There are actually two thresholds which are measured differently which is beyond the scope of this discussion. It is important to use the proper dosimeter settings for measurement. Individuals trained as certified industrial hygienists (CIH) are most qualified to measure or oversee a noise monitoring project. (B) Regular monitoring of noise – including areas which are known to be below OSHA’s thresholds can be important in the defense of a hearing loss claim. Often these areas are not measured because the levels are known to be quiet, but little documentation may support this fact. (C) “on-boarding” audiometric tests of employees’ hearing and annual testing (required when at or above 85 decibels on average) are important. These tests can help establish pre-existing hearing loss, while also identifying early changes for intervention and prevention. (D) When such tests are performed the employer should retain all of the information specified by the OSHA standard. This includes calibration data of the equipment used and sound level measurements in the sound enclosure where the test is conducted.
Steven D. High, MPH, MS, CIH, CSP, ARM, CHST, CXLT, Safety & Health / OSHA Expert at DJS Associates, can be reached via email at experts@forensicDJS.com or via phone at 215-659-2010.

 

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