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An Exercise in Futility: Frustrations of a Hearing Conservationist (An Historical Review and Summary of Hearing Conservation Issues)

An Exercise in Futility: Frustrations of a Hearing Conservationist (An Historical Review and Summary of Hearing Conservation Issues)
David M. Lipscomb, PhD
May 16, 2005
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"Of all industrial injuries, occupational hearing loss is entirely preventable." Dr. Joseph Sataloff

Introduction:

Over the years, it has been the author's responsibility to consult with federal agencies; to establish hearing conservation programs (HCPs); to maintain HCPs; to evaluate HCPs; and to determine if hearing impairments are attributable to failures in HCPs.

The review of thousands of claims for occupational hearing impairment has been undertaken at the request of claimants and defendants. This work, which has spanned nearly 40 years, has provided insight into the necessary and typical scope of practice for HCP establishment and maintenance. Further, it has afforded the ability to determine when, and sometimes how, HCP failures result in noise-induced hearing loss (NIHL).

It has become wearying to repeatedly encounter common elements offered in defense of employers who did not establish and maintain a proper comprehensive HCP in a timely manner. The attempts to dodge responsibility and accountability have been unimpressive. Certainly, establishing alternative causation, when it exists, is a tactic that has been, and should be utilized by employers defending themselves against occupational hearing loss (OHL) or other claims. It is imperative, however, that any alleged alternative causation be documented in such a way that reviewers have some means of determining the magnitude of liability, or release from liability, for a given employer.

Warnings:

For more than fifty years, warnings have been issued by government agencies, trade associations, manufacturer's groups, legal entities and concerned individuals, regarding the need to provide a safe acoustical environment for workers. Further, calls have repeatedly touted the need for appropriate identification of workers at risk for occupational hearing loss (OHL). Specific guidelines for developing and maintaining a comprehensive and effective hearing conservation program pre-date the Occupational Safety and Health Administration (OSHA) Guidelines. The OSHA Guidelines were promulgated in 1983 after the U. S. Department of Labor overcame strong opposition to their release. In fact, resistance by industrial entities, the U.S. Chamber of Commerce and the National Association of Manufacturers kept the proposed guidelines from achieving the force of law for eleven years.

Warnings Unheeded:

Now that OSHA guidelines for effective HCPs have been in effect for over twenty years, one would suppose the industrial workforce would be largely protected from the ravages of OHL. However, that supposition is incorrect. Even to this day, many employees are subjected to potentially damaging sound in the work environment.

True to form, it is probable that noise-injured workers, the victims of currently inadequate HCPs, will be seeking redress for this continuing occupational noise problem and lack of effective HCPs. Defense strategies will be used to avoid responsibility for the continuing plague of hearing impairment in the current workforce.

An Economic Mystery:

It is astounding that defense against claims usually costs significantly more money than would have been required to put an effective HCP program in effect in the first place.

The above described mentality is not unusual, nor is it relegated exclusively to the HCP arena. Almost any form of governmental regulation is abhorrent to many industrial organizations across a wide range of fields and technologies.

A recent example can be found in the writings of Christine Todd Whitman, former Director of the U. S. Environmental Protection Agency. Referring to opposition by the chemical industry to regulations intended to reduce chemical plant vulnerability to terrorist attacks proposed by the Homeland Security Agency, Ms. Whitman observed:

"I sometimes wonder whether those companies spend more money trying to defeat new regulations than they would by simply complying with them" (2005).


Defense Efforts:

One source of chagrin is the large amount of time and money spent in various spurious activities by employers mounting defense strategies against claims. These activities usually incorporate audiologic testing and reporting offered as an attempt to suggest or hint at alternative causation. This process is inefficient, ineffective and expensive.

The employer's failure to establish timely and appropriate means for HCP maintenance and worker hearing documentation, is the primary reason there are typically no data or other forms of documentation to implicate alternative causation.

A frequent problem encountered by persons embroiled in sorting out claims for OHL is that proper documentation cannot be located. Serial audiometric data are typically not available or are incomplete. Generally speaking, sound measurement records are sketchy if available at all, and essential elements of record keeping (as promoted by the Occupational Safety and Health Guidelines, 1983) are incomplete. Shoddy record keeping is responsible for incomplete claimant record review which fosters the need to "reconstruct" exposure conditions and worker hearing assessments. Defendants tend to use the lack of appropriate HCP program action against claimants.

Example: Attempts to hide behind a dearth of employee noise exposure data can indeed, be successfully overcome.

Some time ago, using calculations and known sound source data, a procedure was developed (by the author, DML) to establish on a "more probable-than-not basis" (a familiar and necessary legal term) the weekly occupational noise exposure for workers whose occupational noise exposure was previously never determined. The process was arduous, lengthy and involved considerable time. However, clear indications of noise in work environments was established and successfully presented in courts of law. Of course, there was deep chagrin by some defendants since it was assumed that having taken no sound measures, the lack of information would serve as a barrier to recovery by claimants. This assumption by defendants proved to be untrue. It was possible to associate the worker's hearing levels to the noise exposure that had been retrospectively calculated.
The Defense Team: In desperation, defendants who find they have significant legal and financial risk exposure utilize experts who are physicians, audiologists, industrial hygienists or acoustical engineers to blunt claims and avoid considerable financial liability. Experts and consultants are asked to apply their knowledge to find alternative causation, or to indicate if the claimants had received notice at such a time that the statute of limitations would invalidate the claim.

Although a few consultants take leave of what they know and establish their review and evaluations upon unwarranted or unfounded assumptions, the majority take the position that a lenient allowable "permissible exposure level" (PEL, for example 90 dBA daily for eight-hours) is completely safe for workers. They posit the claimant must have lost hearing from some other cause, rather than the occupational acoustical milieu. Some defense consultants attempt to overstate the influence of non-occupational noise or other possible causative factors. Claimant "hunting" activities are commonly named as the reason for NIHL, rather than OHL.

Interestingly, numerous experts retained by defendant counsel, find they cannot be much assistance to the defense. When defense consultants generate or are confronted with scientifically-based noise exposure analyses, they too, often agree the claim is valid. Of course, by that time, the defense has squandered time and money and is still exposed to liability.

When claims are subjected to hearings and/or trials, the majority are won by the claimant. The primary reason is that hearing examiners, judges and juries are concerned or alarmed by the lack of proper preventative effort by the defendant. The fault typically goes to upper and middle management, who often viewed HCPs as an unnecessary deduction from the "bottom line."

In most cases, by the time employer negligence comes to light, the managers guilty of the negligence are no longer part of the company and are not available to bear responsibility for the untoward result of their negligence.

A Brief History of Notice:

The legal term "notice" is used to describe information that puts various entities "on notice" for some reason. For the most part, with regard to OHL, "notice" consisted of learned treatises, trial outcomes or jurisdictional regulatory activity that was intended to define and delineate a problem. Subsequent to receiving "notice," affected organizations are expected to affect solutions.

Hearing conservation has a lengthy history of publications that describe the hazard of environmental sound exposure and the details of HPDs that offer proper solutions to the problem.

Two physicians were at the forefront of early hearing conservation efforts.

Dr. Joseph Sataloff and Dr. Aram Glorig published numerous articles and books on the topic. Drs. Sataloff and Glorig are considered to be important early leaders of hearing conservation efforts.

Early warnings: Fifty-three years ago, in 1952, Dr. Joseph Sataloff published an article in Industrial Medicine and Surgery. In that article, Dr. Sataloff described the need for HCPs, methods for the establishment of a comprehensive HCP, and he clearly stated that technology to accomplish the goals of a HCP were in place at that time. Further, he emphasized the need for pre-employment hearing testing. He recommended periodic hearing testing to monitor the workforce. The timelessness of his article was/is impressive in that the substance of the article is still current, more than half a century after publication. Indeed, industry was put "on notice" regarding HCPs long before most current claimants were hired, or even born.

Dr. Aram Glorig in 1966, while addressing a gathering of physician contractors for the railroad industry, pointedly challenged industry to pay heed to the need for HCP development. Glorig described what he termed "the ostrich syndrome" alleging that industry cannot "stick their head in the sand" in hopes the problem of industrial noise exposure and hearing loss would simply go away. Dr. Glorig cautioned that unless industries took those warnings seriously, there would be a flood of claims. Obviously, these widely disseminated words were prophetic - not only for the railroad industry, but for much of U. S. industry. The only exceptions to the dire results of the predictions were those industrial entities that did establish meaningful comprehensive HCPs in a timely fashion.

HCP Format

The 1969 revision of the Walsh-Healy Public Contracts Act (W/H) incorporated the first federally mandated format for HCPs. Once again, industry was put on notice. Although the W-H Act affected only those industries conducting $10,000 or more worth of business with the federal government annually, or providing $6,000 or more in services, it is apparent that the W-H Act was in force for most of large industry.

Promulgation of the W-H Act released a torrent of articles and commentaries in the popular press, house organs and in publications for industrial substrata. It is impossible for any industry that employs medical and industrial hygiene personnel to assert ignorance of these publications. Notice was again extensive and comprehensive.

In natural progression, the 1971 Williams-Steiger Occupational Safety and Health Act (OSHA) was enacted incorporating the W-H provisions word-for-word. If the W-H Act ignited literature references comparable to a brush fire, OSHA gave rise to a firestorm of articles, publications, texts and sundry descriptive writings. These materials included treatises concerning rationale for HCPs and descriptions of how to initiate a HCP. Some contained dire warnings citing the problems to ensue if HCPs were not developed and appropriately maintained. In the experience of this author, warnings were heeded by only a small segment of industry, while the bulk of industrial entities in the early 1970's did nothing, or initiated limited programs which were inadequate.

One of the charges by Congress, to which the U. S. Department of Labor (USDOL) was instructed to respond, was the preparation and promulgation of guidelines that would be used by industry in setting up HCPs. With the advent of the hearing conservation portion of OSHA, came strong resistance and opposition by most industrial representatives, some governmental agencies and the U.S. Chamber of Commerce. The effect of which was to significantly delay the promulgation of guidelines.

Only through the diligence and dedication of Alice Suter, then an official in the DOL, did the guidelines ever see the light of day - and then, not until March 8, 1983. The lengthy 'gestation period' of the guidelines meant many industries waited to install HCPs until the guidelines became law. Of course, this delay occasioned the overexposure to noise for millions of industrial workers.

Even after 1983, numerous segments of industry sought by legal or political means to be exempted from the provisions of OSHA and the guidelines on various grounds. Therefore, workers became victims of industrial noise hazards even longer as a direct result of delaying tactics.

Optimism:

With the passing of the W-H Act, and as a result of congressional action (OSHA), there was reason for high hopes and optimism that the serious tide of occupational hearing loss would be countered by effective HCPs. That optimism turned to disappointment for many hearing conservationists due to the delays occasioned by opposition to regulatory activity and the reticence by industry to take action. This disappointment increased as claims for OHL began to multiply and reviews of work environments demonstrated workers were needlessly exposed to excessive noise without benefit of a workable and effective HCP.

In industry, there was an expressed concern that starting a HCP would open a 'Pandora's box' and give rise to claims. Perhaps it was considered best that the workers be kept ignorant of the noise hazard and, thus, not cause claim actions. In fact, this author has seen some "smoking gun" memos that specifically stated that workers were to be told nothing, or similar verbiage. The upshot of such policies, of course, was that hearing impairments continually grew worse and claim values ultimately increased.

Impressions Drawn From the History of Hearing Conservation:

By the time the 1983 hearing conservation guidelines were finally promulgated, 31 years had elapsed from the publication of Sataloff's classic article. It was 17 years after Glorig's articulate appeal and warning to railroad physicians. One can only ask how many workers could have been saved from the ravages of NIHL had industry heeded warnings and had taken responsibility to protect workers from noise exposure at work, had the lengthy delays not occurred?

For several years, the author was a summer employee of the U. S. Environmental Protection Agency Office of Noise Abatement and Control (ONAC). During the summer of 1975, extensive hearings were held by the DOL to provide opportunity for comment on the proposed guidelines for hearing conservation. The preponderance of comments were in opposition to parts or all of the regulatory provisions. This seemed strange since the guidelines, if successfully adopted by industry, would enhance development and maintenance of HCPs, thereby lessening industry's liability in later years due to fewer workers developing OHL.

The resistance by industry and opposition to regulatory proposals meant that many employees entered their jobs with no pre-employment hearing tests. Most workers were not beneficiaries of monitoring hearing tests until late in their careers. Worker noise exposure analysis was either not undertaken or was slip-shod due to inadequate equipment, untrained personnel taking sound measures, or seriously incorrect sound measuring approaches. Many dosimetry measures in the 1980's were accomplished with the equipment response threshold set for 90 dBA meaning that the dosimeter would consider any lesser sound (even 89.9 dBA) as 0.0 dBA. On occasion, even in 2004 and 2005, those errors and incorrect equipment settings are still reported. This and other errors caused serious understatement of the noise exposure experienced by the work force.

The Author's Personal Involvement in Hearing Conservation at the Federal Level:

While on the staff of ONAC, this author participated in the preparation of numerous informational documents and position statements. These were widely distributed and most of the industrial sector was apprized of information pertinent to the hazards of occupational and non-occupational noise exoposure. This led to a sense of achievement at that time since the ONAC staff believed the information and warnings issuing forth from ONAC would be taken seriously and would result in achievement of hearing conservation measures.

Once again, that optimistic outlook was frustrated by the continuing resistance of industrial management to providing comprehensive HCPs for workers.

In addition to the ONAC efforts, this author joined with Drs. Sataloff, Glorig and others, in calling for meaningful action by industry to conserve the precious sense of hearing of industrial employees. These words included predictions and warnings regarding the potential for claims in the future. Further, caution was offered that a lackadaisical approach to HCPs would be almost as bad as having no program at all. Concentrated efforts were made to reinforce the early publication by Sataloff regarding the components of a good HCP.

It was always this author's desire that warnings be heeded to avoid saying later "I told you so" with regard to OHL claims.

It is no longer possible to avoid that sad state of affairs. It is now arguably appropriate to say, "I told you so."

Fast Forward to this Century:

Currently, NIHL claims are numerous. Even 50 years after the pivotal article by Sataloff, much time and effort is spent calculating how much of a worker's hearing impairment can be attributed to occupational noise exposure.

This task would be obviated had industry initiated comprehensive HCPs when they were first called upon between 1969 and 1971, or, certainly after 1983.

It is more than a 'challenge' to accomplish the task of separating several possible causative factors for a given worker's hearing condition - it is almost a virtual impossibility!

There are few objective data sources upon which one can predicate allocation to alternative causation, other than educated guesswork. For the majority of claimants cases reviewed by this author, there were no pre-placement or pre-employment hearing tests to form an appropriate 'baseline' against which future hearing conditions can be compared. There were few if any annual monitoring hearing tests that permitted tracking progression of a worker's hearing changes, if any. Sound measurement data were scattered and of limited value in assessing the overall exposure to noise occasioned by employees. HCP policies were sometimes in written form and sometimes not. Even the 'published' program statements and descriptions show poor correlation to what was actually done to follow the precepts of the stated HCP policies.

The above conditions place an unnecessarily difficult burden upon professionals and consultants. They are given the impossible task of somehow determining the unknowable, i.e. the proportion of a claimant's hearing loss attributable to OHL.

Evaluative Factors and Proposals for Consideration:

On the basis of extensive participation in the claims procedure, the following positions are recommended.

None of the possible alternative causes should be factored into claims negotiations without conclusive data. As an example; just because a claimant has 'hunted,' there is no justification for reducing the value of the claim without knowing the type and extent of gunfire exposure. Further, there is a huge difference between 'hunting' and 'shooting.'

Below are proposed alternative causative factors and suggested strictures for the analysis of a claim for OHL:

  1. Recreational (non-occupational) noise exposure should be considered only if documented, quantified and carefully calculated adjustments, based upon solid assumptions, are possible. In virtually all cases this author has reviewed over nearly four decades, occupational noise exposure is always greater than non-occupational noise exposure by orders of magnitude. There is no doubt that non-occupational pursuits can cause NIHL, or can increase already present NIHL. However, this factor would likely be identified within a functioning comprehensive HCP, so the worker would be cautioned and counseled to avoid such activities without adequate hearing protection. In fact, that is one of the major purposes of the "worker education" component of a HCP.

  2. Military service should be considered only if military audiology records are obtained or if the claimant has been judged to have a 'service connected' hearing impairment, or, if a pre-induction hearing test identified pre-existing NIHL. In other words, we know that essentially all military personnel are occasionally exposed to weapons related noises, but in and of itself, that does not prove a military related NIHL.

  3. Noise exposure and NIHL due to previous employment should be considered only if there are audiometric records from the previous employer, or if the worker has pre-employment audiometric tests, obtained or conducted by the defendant employer, indicating a previously identified hearing impairment.

  4. Adjustment of a current hearing condition on the basis of age should not be considered. There are no reliable methods for calculating an adjustment to the hearing of a worker and the role age may have played. Such adjustment can only be justified if there is an exit audiogram upon which the claim can and should be based.
Fairness:

The above recommendations might be considered by employers to be unfair, particularly if the employer has made a good faith effort to establish and maintain a comprehensive HCP.

However, in general, for most reviews undertaken by this author; proper hearing tests, accurate sound measures, appropriate employee noise exposure analyses, worker education and proper selection of HPDs are non-existent or sporadically accomplished. The default policy has often been to create a half-baked program of little or no value, and is the definition of the term 'negligence.' When employers neglect long-standing, established protocols for placing a comprehensive HCP in place, negligence is apparent, and has brought us to where we are today.

Certainly some employers have set up and maintained workable and effective HCPs. Those employers will not be subjected to any, but occasional, claims. Nonetheless, those employers who have a plethora of claims would do well to recognize the symptoms of a HCP not properly functioning.

A Fairness Doctrine:

The claims process is inherently structured to be "fair." There are checks and balances to assure that neither claimant nor defendant are given unfair advantage.

It is not appropriate nor is it fair to employers to be shackled with paying compensation to workers who consistently resist taking necessary steps to protect their hearing.

Further, it is unfair to punish claimants for the employer's lack of preventative action. As stated previously, lack of documentation is often an attempt to use the employer's negligence against the claimant.

Compensation:

In 1951, Dr. C. Stewart Nash wrote the first treatise regarding compensation for OHL. At that time, Dr. Nash was reviewing claims for approximately 300 railroad shop workers routinely exposed to sound levels greater than 120 dB. The potential liability would lead to financial ruin for the company. Dr. Nash's solution was to delay compensation for the workers until retirement, "...a time when the employees needed it most."

In 2005, delay in compensation is seldom an option. Rather, workers are compensated during their careers (sometimes more than once) and the employee remains in the work force.

Some systems do not utilize scheduled compensation, thus, claimants can prosecute for any sum in dollars. Occasional hearing impairment claims have yielded large sums; in the range of $1.5 million. However, most awards or settlements are less than $50,000.

The tragic fact is that loss is experienced by both sides. The worker has lost valuable and irreplaceable auditory function, while the employer has paid considerable monies in its defense, in addition to the award or settlement dollars.

Most of the time, it is apparent that money spent for a HCP would have constituted a savings for both sides.

Why are HCPs not better formulated and activated to stem the loss of hearing by workers and eliminate loss of revenue? The answer is not available to this author. Apparently, logic does not prevail in this context.

Conclusion:

Rules, regulations and efforts for hearing conservation in industry are extensive, encapsulated in law, and have been ongoing for decades.

Some industries have seen the value of hearing loss prevention and those industries are reaping the benefits of low claim action for OHL.

When HCP efforts in industry are ignored, poorly managed or absent, expensive and time consuming results will occur.

References:

Department of Labor Occupational Noise Exposure Standard (1983). Code of Federal Regulations, Title 29, Chapter XVII, Part 1910, Subpart G, 36 FR 10466, May 29, 1971; Amended by 46 FR 4161, January 16, 1981; Amended by 48 FR 9776, March 8, 1983.

Glorig, Aram (1966). Proceedings of the Forty-sixth Membership Meeting of the Medical and Surgical Officers pp 105-111. Chicago: Association of American Railroads Operating-Transportation Division.

Nash, C. Stewart (1951). Liability and Compensation - Industrial Deafness. Hearing News, January 1951. Washington, DC: American Hearing Society.

Sataloff, Joseph (1952). Occupational Deafness, In Industrial Medicine and Surgery, The Journal of Medicine in Industry. Vol 21, No. 7, July, 1952.

Walsh-Healy Public Contracts Act (1969). Title 41 C.F.R., Chapter 50 Washington, D.C., Superintendent of Documents, U. S. Government Printing Office.

Whitman, Christine Todd (2005). It's My Party, Too: The Battle for the Heart of the GOP and the Future of America. New York: Penguin Press.

Williams-Steiger Occupational Health and Safety Act (1971). Public Law 91-596. (Title 29 CFR, Chapter 17). Washington, DC. (Section 1910.95, Hearing Conservation)
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David M. Lipscomb, PhD

President, Correct Service, Inc.,

Dr. Lipscomb served as professor of Audiology in the Department of Audiology and Speech Pathology for the University of Tennessee.  In addition to teaching mostly graduate level classes, he conducted research and was Director of the department's Noise Research Laboratory.  Since 1966, he has qualified in courts of law as an expert in the field of Audiology.  He has testified in hundreds of depositions and more than 100 trials. None - there are no conflicts of interest and I have nothing to disclose



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