Las Vegas POA

Firefighter Loses Gradual Hearing Loss Claim

Written on 06/05/2021
Will Aitchison

James Hartman has been employed by the St. Bernard Parish Fire Department in Louisiana since May 25, 1990, rising to the rank of District Chief. During the course of his employment with the Department, Hartman was exposed to injurious levels of noise, which resulted in permanent hearing loss.

Hartman informed the Department of his hearing loss on September 20, 2006. He underwent audiograms in January 2008, April 2014, March 2017, and September 2017. Each test showed a gradual increase in his hearing loss. The last audiogram, performed by Dr. Daniel Bode on September 27, 2017, showed a 42.2% binaural hearing loss. Dr. Bode opined that repeated exposure to loud noises for extended periods of time (spe­cifically, from 1990-2017) was “likely a contributing factor to Hartman’s bilateral sensorineural hearing loss.”

Hartman filed a claim for workers’ compensation seeking permanent partial disability benefits for hearing loss. When the Department opposed the claim, the matter wound up before the Louisiana Supreme Court.

The Court upheld the denial of Hart­man’s claim. The Court based its opinion on two statutes. The first limited many permanent partial disability benefits to those accompanied by “anatomical loss of use or amputation.” The second statute made an exception for claims of loss of hearing, but only where the employee “suffers a permanent hearing loss solely due to a single traumatic accident.”

The problem, the Court found, was that Hartman admitted that his hearing loss resulting from occupational exposure to excessive noise, not a “single traumatic accident.” The Court ruled that “we find, as did the lower courts, that the words of the statute are clear and unambiguous. According the words the generally pre­vailing meaning, as we must, we also find that the clear legislative intent expressed in the statute is to provide permanent partial disability benefits to an employee who suffers a permanent hearing loss solely (i.e., to the exclusion of all else) due to a single (i.e., consisting of only one in number) traumatic accident.

“Here, the expert medical evidence presented through the report of Dr. Daniel Bode concludes that ‘Hartman’s repeated exposures to loud noises for extended periods of time (1990-2017) is likely a contributing factor in his bilateral senso­rineural hearing loss.’ Obviously, repeated exposure is not synonymous with a single exposure; neither is a contributing factor synonymous with a sole one. The expert evidence in this case clearly disqualifies Hartman from indemnity benefits under the statute.

“Hartman argues that his hearing loss is the result of a series of single traumatic accidents, entitling him to benefits under the statute. In short, Hartman would require the Court re-write the language of the statute so as to provide disability ben­efits for permanent hearing loss solely due to a ‘series of single traumatic accidents, or to ‘multiple single traumatic accidents.’ This the Court is not free to do.

“Had the legislature intended to extend disability benefits for a ‘series’ of traumatic accidents or ‘multiple’ traumatic accidents, it could easily have done so by using those exact words. It did not. That the legislature deliberately chose to restrict the scope of partial permanent disability benefits by limiting compensability to permanent hearing loss caused by a single traumatic accident – and not a series of accidents – is confirmed by [subsequent amendments to the statute].

“We agree with Hartman that if the worker’s compensation laws leave him without a remedy under the Workers’ Compensation Act, then the quid pro quo that forms the basis of the Act would be abrogated and he would be entitled to pursue a remedy in tort. However, this is not the case.

“In this case, in addition to the permanent partial disability benefits Hartman sought, the Act provides three other categories of indemnity benefits: temporary total, permanent total, and supplemental earnings benefits. Because Hartman stipulated that he has continued to work with his hearing loss and has not suffered a wage loss, he is not eligible for, and did not seek, indemnity benefits under these provisions. Furthermore, as explained above, the medical evidence in this case disqualifies him from perma­nent partial disability benefits because his hearing loss is cumulative, the result of repeated exposure to loud noises for extended periods of time, which is likely a ‘contributing factor’ in his hearing loss and not ‘solely due to a single traumatic accident.’ However, this does not leave him without a remedy.

“Upon proof of impairment of function, employees suffering from oc­cupational noise-induced hearing loss are entitled to medical and vocational rehabilitation expenses, prosthetic devices and other expenses. Indeed, Hartman stipulated that his employer, the Fire Department, currently provides him with such medical benefits for his hearing loss.”

Hartman v. St. Bernard Parish Fire Department, 2021 WL 1115358 (La. 2021).

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