Spring 2009 SBH Work Comp Quarterly
Washington Workers' Compensation Section
PDF FormatHearing Loss Schedule of Benefits Determined by Last Injurious Exposure
By Bruce Byerly
The Washington Supreme Court has determined in an occupational disease hearing loss case with no medical treatment that the appropriate benefit schedule is the schedule in effect on the date of the last injurious exposure. Harry v. Buse Timber & Sales, Inc., ___ WA ___, 201 P3d 1011 (2009).
In Harry, the worker was hired by the employer in 1968. He worked until he retired in 2001. During his employment, he was exposed to high noise levels capable of producing hearing loss. The employer administered annual audiograms, as required by WISHA. The 1974 audiogram established compensable left ear hearing loss. The hearing loss progressed. By 1986, the right ear was also affected. The worker waited until he retired in 2001 to consult a physician. His physician informed him he had a 38.13 binaural hearing loss.
The Court observed RCW 51.32.180(b) controls the applicable schedule of benefits. This statute provides in section (b):
"...The rate of compensation for occupational diseases shall be established as of the date the disease requires medical treatment or becomes totally or partially disabling, whichever occurs first, and without regard to the date of contraction of the disease or the date of filing the claim." (Emphasis added.)
The Supreme Court framed the issue as: When does occupational hearing loss become "partially disabling" for purposes of determining the applicable benefit schedule for permanent partial disability awards?
The Court held:
"Considering the purpose of the IIA, the liberal construal mandate, the definition of occupational disease, and the nature of occupational hearing loss, we interpret 'the date the disease ...becomes totally or partially disabling,' as referring to the date the aggregate compensable disability occurred, not the date a compensable loss first occurred. Accordingly, we hold the date of the last injurious exposure is the date occupational hearing loss is 'partially disabling' within the meaning of RCW 51.32.180(b)." (Emphasis added.)
The Court suggested that employers could limit their exposure by providing workers with physician-certified notices of compensable hearing loss with the first audiogram that demonstrates a compensable hearing loss.
<< Newsletter Page