PRACTICE TIP: In defending a hearing loss claim, it first must be determined whether the claim is being asserted for a traumatic or an occupational loss in order to determine the necessary filing requirements.
Under the New York Workers’ Compensation Law, the filing requirements for a traumatic hearing loss arising out of a specific event dovetail with other accidental injuries. Thus, the claim must be filed within two years of the date of accident (WCL §28.) At the time of permanency, a traumatic hearing loss claim can be made for either one or both ears. Additionally, permanency for a traumatic loss is based upon a different scale compared to an occupational loss when measuring permanency.
For a loss of hearing arising out of an occupational exposure to harmful noise, the claimant may file the claim based upon a limitations period unique to occupational hearing loss claims. Under WCL Article 3-A, a claimant may file a claim either within two years plus three months following removal from the injurious noise or within two years plus three months following the date of retirement or termination. The claim will be timely even if the claimant elects to delay filing after removal from the injurious noise and files a claim within two years plus three months following the date of retirement or termination. Additionally, at the time of permanency, the hearing loss is awarded to both ears and the audiogram must make readings at frequencies which are different from those utilized for a permanent traumatic hearing loss case. Thus, it is important that both the claims adjuster and the professional conducting the audiogram be aware of the nature of the claim so that a proper analysis is applied to filing requirements and permanency ratings.
If you have any questions about this or any other issue, contact David L. Niefer at firstname.lastname@example.org or (607) 723-0600 or any of the attorneys in our office. If you would like a training session on this or any area of the Workers’ Compensation Law, please do not hesitate to contact our firm.
This information is provided for general guidance only. This information should not be used as a substitute for consultation with legal counsel. Each case presents unique facts requiring individual analysis.