Minimal vocational impact diminishes permanency award

Where an employee's hearing loss did not limit his ability to perform his job, did not cause him to miss work, and he was able to secure another job after retiring, the panel may modify the trial court's award of permanent partial disability benefits.

Case name: Bain v. TRW, Inc., et al., No. M2008-02311-WC-R3-WC (Tenn. Work. Comp. 04/15/10, unpublished).

Ruling: The Tennessee Supreme Court, Special Workers' Compensation Panel found that the trial court's award -- based on 65 percent permanent partial disability to the hearing of both of the employee's ears -- was excessive. It modified the award to 15 percent and changed the date of injury to the date the employee was last exposed to injurious noise in the workplace.

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What it means: Where an employee's hearing loss did not limit his ability to perform his job, did not cause him to miss work, and he was able to secure another job after retiring, the panel may modify the trial court's award of permanent partial disability benefits. Further, where credible evidence demonstrates that the greater part of the employee's hearing loss occurred after the employer implemented a hearing protection program, the employer is liable only for the hearing loss sustained before the program was put into place.

Summary: The claimant worked for the employer, a manufacturer of automotive gears, for 38 years. After he retired in 2006, he sought workers' compensation benefits for hearing loss in both ears. The trial court awarded 65 percent PPD for loss of hearing in both ears and determined that the date of injury was the date he first learned of his hearing loss. Finding that the award was excessive and reflected an incorrect injury date, the panel modified the trial court's decision, decreasing the award to 15 percent, and changing the date of injury to the date the claimant was last exposed to harmful noise without adequate protective gear.

The panel explained that its 2009 decision in Hix v. TRW, Inc. dictated the result on the issue of the employer's liability. Because medical testimony established that noise-induced hearing loss does not progress after exposure to an injurious level of noise ends, and the claimant testified that he used earplugs at all times after the hearing loss program was implemented, the employer was liable only for the hearing loss sustained before the program was put into place.

The panel found that the PPD award was excessive because the claimant did not miss any work as a result of his hearing loss, was able to perform his job duties without accommodation, worked substantial overtime until he voluntarily retired, and was able to obtain another job thereafter. Because he had only "minimal vocational disability," the trial court's award was not supported by the evidence.

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June 17, 2010

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