Forensic Audiology & Industrial Hearing Conservation

© titima157 – stock.adobe.com

By: Robert M. Traynor and Garry G. Gordon, Contributors

In the event of a hearing loss or tinnitus claim, it is critical to have the support of an experienced professional legal team, including a forensic audiologist.

In today’s culture, there are always workers that sue companies for alleged injuries incurred in the workplace. Even though there is an active hearing conservation program in place, there can be a lawsuit for hearing loss and tinnitus.

The hearing conservation program manager, in coordination with a Council for Accreditation in Occupational Hearing Conservation (CAOHC)- certified professional supervisor, may offer an impeccable example of conducting hearing monitoring, instruction and provision of hearing protection devices and other components within their program—and still be sued by workers. If a hearing loss or tinnitus claim happens to your company, it is critical to have the support of an experienced professional legal team, including a forensic audiologist, to determine viability of the claim and work with the attorneys to facilitate an appropriate strategy to deal with the litigation.

THE ROLE OF THE FORENSIC AUDIOLOGIST

A worker who files a lawsuit for hearing loss or tinnitus must prove that their employer was negligent in protecting them from noise hazards. © Ulf – stock.adobe.com

Experts, such as forensic audiologists, use scientific knowledge, experience and research skills to discover proof (evidence) that will assist in solving civil or criminal legal cases. A long-time forensic audiologist defined forensic audiology as simply, “The application of audiological knowledge to questions of law.”¹ Although applying audiological knowledge to questions of law is what professional forensic audiologists do, there is more to it than simply providing audiological knowledge and expertise. Those that train expert witnesses state that the role of the legal expert witness is to assist the “triers of fact.”² The triers of fact may be the judge and/or the jury depending upon the circumstances in the case.

Thus, the definition of forensic audiology is the use of audiologic training, experience and specialized certification that produce skills to assist attorneys, judges and jurors in understanding audio vestibular subject matter for use in obtaining a just settlement in criminal and civil litigation.³

Expert witnesses have various jobs in a case.⁴ They can assist with:

• Assessing the value of a case
• Formulating claims, counterclaims and defenses
• Drafting discovery requests and responses
• Reviewing documents
• Challenging the other side’s expert witnesses
• Developing and refining case strategy
• Identifying, evaluating and calculating damages
• Evaluating and responding to opposing claims and theories
• Aiding the triers of fact through trial testimony

WHY WOULD A WORKER SUE?

Claims should not be taken lightly and can be extremely expensive. These suits are typically pursued if the worker (the plaintiff) and their attorney feel they can prove the company (the defendant) failed to adequately protect the worker from noise exposure or blast hazards. While the worker would have to provide evidence that the company was negligent, a worker might sue a company for hearing loss or tinnitus for several reasons:

• Workplace Noise Exposure: If the worker’s job environment consistently exposed them to loud noises without proper hearing protection or adequate noise control measures, they may have developed hearing loss or tinnitus as a result. OSHA sets permissible noise exposure limits and requires employers to implement hearing conservation programs when noise exposure exceeds these limits. Adherence to these regulations is essential and fair game for disputes.
• Lack of Proper Hearing Protection: Employers are required to provide and ensure the use of appropriate hearing protection devices, such as earplugs or earmuffs, in noisy environments. Failure to provide this protection or to enforce their use could lead to hearing damage. An operative word in this discussion is appropriate. The company may have provided hearing protection, but that protection was not designed to protect against the type of hazardous noise to which the workers were exposed.
• Inadequate Training and Information: Employers must inform workers about the risks of noise exposure and train them on how to protect their hearing. If a worker was not properly educated about these risks or how to use protective equipment, the employer might be liable for hearing loss or tinnitus that develops in the workforce.
• Failure to Implement Hearing Conservation Programs: For workplaces where noise levels exceed OSHA’s permissible limits, employers must implement a comprehensive hearing conservation program. This includes regular hearing tests (audiometric testing) to monitor workers’ hearing over time and action taken if deterioration is detected. If an employer neglects to establish or maintain such programs, workers may suffer hearing loss. If it is proven that the hearing loss and/or tinnitus was caused within the workplace, the company is liable.
• Negligence: If the worker can prove that the employer was aware of the hazardous noise levels and the potential for hearing damage but did nothing to mitigate these risks, the worker and their attorney may find a case for negligence. This includes situations where the employer ignored complaints or failed to address known safety hazards.
• Breach of Duty: Employers have a duty to provide a safe working environment. If they breach this duty by failing to control noise levels or ensure the use of protective measures, they can be liable for any resultant hearing damage.
• Worker’s Compensation Claims: While many hearing loss or tinnitus claims are managed through worker’s compensation, if the worker believes the compensation is insufficient or the employer’s negligence was egregious, they might pursue additional legal action.

In a lawsuit, the worker (the plaintiff) would need to prove that the hearing loss or tinnitus was caused by workplace conditions and that the employer (the defendant) failed in their duty to protect the worker’s hearing. This involves the injured worker providing evidence of noise levels, lack of protective measures and medical records confirming hearing damage. On the workers’ side, they will need to also prove that they did not have other recreational noise exposure, such as gunfire, aviation, motorcycles or rock concerts, which could have created hearing loss and/or tinnitus.

Image courtesy of E.A.R. Inc.

The worker would also have to prove that this particular employer is responsible for the hearing loss or tinnitus. Often workers have had many different jobs for various companies. If the current company conducted a pre-employment hearing test, they are only responsible for the hearing loss that has been incurred since the beginning of their employment with that company. If there was no hearing test as the worker exited the previous position or there is no preemployment hearing test, the current employer becomes responsible for all hearing impairment presented on the audiogram. IHW

This article also appears in Workplace Material Handling & Safety’s July 2024 issue. To read the rest of the article, which includes “What Happens in a Civil Case” and “Case Studies,” go to https://tinyurl.com/45mbjmjs.

Robert M. Traynor, Ed.D., MBA, FNAP, is a board-certified audiologist with 46 years of clinical practice in audiology. He is a hearing industry consultant, trainer, professor, conference speaker, practice manager, author and head of Robert Traynor Audiology, LLC in Ft Collins, CO. https://roberttraynoraudiology.com

Garry G. Gordon, M.S. is Audiologist /CEO of E.A.R., Inc., in Boulder CO. He has served more than 4,000 major medical, audiological, recreational and industrial accounts around the world, and has trained a 500+ member network of hearing protection providers. https://earinc.com/

Click here: https://earinc.com/forensic-audiologist/ for the services of forensic audiologists.