Workplace safety is a key component of keeping an organization operating smoothly. While most employers ensure the safety of their work environments from physical injury, often it is the unseen dangers that are the most menacing. The buzzing, clicking, hissing, and rumble of otherwise innocuous noise can, over time, develop into a compensable work injury in the form of occupational hearing loss.
Harmful levels of noise are common, and in some cases, unavoidable. Most often, these environments include manufacturing plants, warehouses, and law enforcement. However, even less-obvious workplaces can contribute to occupational hearing loss for certain employees. The aggregate effect over time has also proven to be a materially contributive factor in occupational hearing loss progression.
The Wisconsin Worker’s Compensation Act (WCA) allows for occupational noise exposure claims to be filed with the Department of Workforce Development (DWD) for up to 12 years following the last employment date of the noise exposure. Most often, this “last employment” date is the employee’s retirement. From the date of retirement, former employees have 12 years to file their claims for occupational hearing loss. During that 12-year period, employment records may be destroyed, machinery may be discarded or modified, or employers may simply close their doors. Defending against these claims becomes exponentially difficult the more time elapses from the employee’s last date worked to the date they file a claim. Even when business operations (or municipalities) continue its operations, the documentation needed to defend against such a claim is not always available. And for those employers with hearing protection programs in place, exit audiograms are not always taken to confirm if any hearing loss had occurred during the employee’s tenure.
On numerous occasions I have been asked by employers how they can try and prevent these types of claims. The following guidance is a compilation of different strategies employers can implement to help prevent these claims from arising in the first place, and how to best document evidence for use in defending against those claims.
Onboarding and Exit Audiometric Testing. Establishing a baseline is crucial to defending hearing loss claims. If an employee begins their employment with compromised hearing, that information plays an important role in both determining whether hearing protection is needed regardless, or if certain work environments are not suited for that employee. Similarly, exit audiometric testing helps establish a baseline for the employees hearing after they leave the job. A lot can change in 12 years’ time – this is especially true for older employees and their hearing. Establishing an employee’s exit hearing ability can show that any changes occurred after the employment ceased, which is essential in establishing a defense.
Yearly audiometric testing onsite. All employees should undergo yearly hearing tests onsite so as to ensure every employee is present and participates. If changes are noticed on employees’ hearing test results, then action can be taken by the employer to mitigate any further hearing loss.
Noise surveys conducted of all working environments to determine the noise levels in each work area. This establishes the noise levels in each area and which of those are in problematic ranges, and it also establishes areas where hearing protection should be required. Surveys should also be conducted on a regular basis to determine any changes in the environment over time. Further, they should be conducted any time an element in the work environment changes (e.g., a new machine is introduced or methods of doing something change, or perhaps a machine has worn out, making it noisier than it used to be). The goal is to be able to have survey results for every work area that can be matched to every employee. So, if an employee brings a claim at some later date, the employer can match the employee to the corresponding work environment and determine that area’s level of noise exposure.
Provide at least one option of both a) a hearing plug, and b) hearing muff. The hearing protection should both be comfortable and sufficient to protect the employees’ hearing. Certain hearing protection works better than others, so ensuring the proper protection is being used in the right area is also a key component of prevention.
Training employees on both the harmful impact of hearing loss, as well as how (and when) to correctly use the hearing protection is essential. Part of the training should be time dedicated to making sure muffs and plugs are properly being used and fitting correctly. If the protection is uncomfortable for an employee, they are more apt not to use it. A question that often comes up is “how are employees supposed to communicate if they are wearing hearing protection?” One option is to create a system of non-verbal hand signs and/or symbols to aid in communicating. Another option is conducting a “prep meeting” to go over everyone’s role during a certain task when hearing protection would be used – akin to a pre-surgery meeting to make sure everyone knows their role before going into the operating room.
Maintain Records. This is another area that cannot be stressed enough. Yearly audiograms should be saved for every employee from the start of the program (or the employee’s start date) and maintained for at least 12 years after the employee is no longer employed. Since the statute of limitations for the WCA is 12 years, this ensures there is documentation to refute any claims. The records of noise survey results from different work environments should also be maintained indefinitely and updated as environments change. If a certain work environment has changed, keeping the historical records prior to that change are also essential.
OSHA. Finally, OSHA offers several different programs, consultations, and training for employers who want to establish a hearing conservation program. These are typically cost-free to small employers or those in the public sector. Even if an employer does not qualify for the free consulting, the cost of the OSHA programs is significantly less than the financial impact of hearing loss claims over time. Aside from the benefits that will be paid out to employees, insureds should also consider the cost of defending such claims, the impact those claims have on an insurance rating and experience modifier, and ultimately their insurance premiums. This is one area to be mindful of the adage “pound-wise and penny-foolish.”
While there is no panacea for protecting against occupational hearing loss claims, implementing a conservation program and diligent document retention is the best method for mitigating risk.