VERDICT. Proving Damages for Hearing and Vision Loss in Third Party Cases

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1 PHILADELPHIA TRIAL LAWYERS ASSOCIATION EST VERDICT Volume Issue 4 While many, if not most, of the cases plaintiff personal injury lawyers take on involve musculoskeletal injuries, from time to time we are all faced with injuries that require us to learn some medicine and to think creatively on how to prove the damages. Since claims representatives are also less familiar with atypical injuries, we must not only educate ourselves, but also the insurance adjusters and claims supervisors who evaluate these cases. It is, therefore, important to develop a working knowledge of all different kinds of injuries. This issue of the Verdict explores injuries to the senses, specifically, hearing loss, vision loss and loss of the senses of taste and smell. The Editorial Board of the Verdict hopes that you find this issue helpful when counseling your clients with these types of injuries. Proving Damages for Hearing and Vision Loss in Third Party Cases Evan K. Aidman, Esq. Law Offices of Evan K. Aidman Tinnitus is the perception of sound when no actual sound is present. The Latin word tinnitus means ringing, although ringing is only one of many sounds a person may hear. According to the American Tinnitus Association, People who experience tinnitus describe hearing different and sometimes variably changing and intertwining sounds like ringing, hissing, static, crickets, screeching, sirens, whooshing, roaring, pulsing, ocean waves, buzzing, clicking, dial tones and even music. Trauma is a common cause of tinnitus. In the last year I have been retained by people whose tinnitus resulted from: Entry into the ear canal by a rat tail comb at a beauty salon A simple fender bender in which a piece of luggage struck my client s head A fall down at a Dunkin Donuts in which the client s laptop struck his face A car crash with air bag deployment Explosion of an firecracker thrown by a neighbor on New Year s Eve There are steps you can take to maximize the settlement value and jury appeal of these cases. How the claim is presented will affect the jury s evaluation of damages. How does one prove what the tinnitus sufferer experiences? In the fender bender mentioned above, I contacted the American Tinnitus Association and purchased a CD called Sounds of Tinnitus for $10. I sent the disc to my client and asked him to identify the sounds he hears. The client was able to find multiple sounds on the CD similar to what he heard after the accident. I then sent the disc to the insurance adjuster, indicating the sounds my client identified. The claims representative seemed impressed with the CD and concerned with how a jury would react. The jury would be able to hear what the client hears, feel what the client feels. This would help jurors fully appreciate the effect the collision had on the plaintiff and possibly motivate them to return a large verdict. Not surprisingly, the case settled successfully and speedily. Had the insurance adjuster made an inadequate settlement offer, I Continued on page 6

2 2 ASSOCIATION Philadelphia Trial Lawyers Association 121 S. Broad Street, Suite 600 Phila., PA Web Site: Phone: (215) Fax: (215) OFFICERS PRESIDENT NANCY J. WINKLER PRESIDENT ELECT LAWRENCE R. COHAN VICE PRESIDENT JOSEPH L. MESSA, JR. SECRETARY EZRA WOHLGELERNTER ASSISTANT SECRETARY TIMOTHY R. LAWN TREASURER LARRY BENDESKY ASSISTANT TREASURER THOMAS W. SHERIDAN PARLIAMENTARIAN ROBERT ROSS IMMEDIATE PAST PRESIDENT THOMAS J. DUFFY BOARD OF DIRECTORS GERALD B. BALDINO, JR. MIRIAM BENTON BARISH TODD M. BERK MARC G. BRECHER ALFRED J. CARLSON MATTHEW A. CASEY JASON A. DARIA JOHN T. DOOLEY ANDREW R. DUFFY REGINA M. FOLEY EMMANUEL O. IHEUKWUMERE DANIEL JECK STEPHEN C. JOSEL THOMAS R. KLINE JASON E. KRASNO JERRY M. LEHOCKY DANIEL C. LEVIN MARK J. LeWINTER L. LEONARD LUNDY FRANK P. MURPHY MICHAEL O. PANSINI ROBERT E. PAUL ROBERTA D. PICHINI ROSEMARY PINTO DIONYSIOS G. RASSIAS MARTIN G. RUBENSTEIN ALISON F. SOLOFF SHANIN SPECTER ANDREW R. SPIRT ANDREW J. STERN DAVID F. STERN EUNICE TREVOR MICHAEL T. van der VEEN BRIAN A. WALL, JR. RHONDA HILL WILSON COMMUNICATIONS COORDINATOR DAVID S. SENOFF EDUCATION COORDINATOR PAUL D. BRANDES MEMBERSHIP COORDINATOR ERIC H. WEITZ COMPTROLLER RONALD I. ROSEN EXECUTIVE DIRECTOR PATRICIA M. PATTERSON NEWS Florida Supreme Court Rejects Caps on Noneconomic Damages in Wrongful Death Medical Malpractice Cases By: Robert N. Hunn, Esquire On March 14, 2014 the Supreme Court of Florida held that caps on non-economic damages in medical malpractice wrongful death cases violated the Equal Protection Clause of the Constitution striking down a significant piece of Florida s 2003 tort reform legislation. In doing so, the Court faulted the State s legislature for inventing a medical malpractice crisis to support the legislation when facts showed otherwise. In The Estate of Michelle Evette McCall v. The United States of America, the decedent developed preeclampsia during the last trimester of her pregnancy. Rather than transfer her to the care of an OBGYN, decedent s family doctors decided to treat her preeclampsia and induce labor. When it became clear that the plaintiff needed a cesarean section, the family doctors delayed in obtaining the services of an OBGYN. When an obstetrician finally arrived, the family doctors decided to allow the decedent to deliver vaginally. Although decedent delivered a healthy baby boy, she did not expel the placenta and the doctors took it upon themselves to remove the placenta. When they could not, the OBGYN was called again. During this entire process decedent s blood pressure began dropping rapidly. The OBGYN arrived and was able to quickly deliver the placenta. However, he was not made aware of the decedent s dangerously low blood pressure. The decedent went into shock and died from severe blood loss. Under the Federal Torts Claims Act, the case was tried non-jury in the Northern District Court of Florida. The court found for plaintiff and awarded economic damages of $980, The court determined that the non-economic damages suffered by her beneficiaries (her son and parents) totaled $2,000,000, including $500,000 for Mrs. McCall s son and $750,000 for each of her parents. Continued on page 10 EDITORIAL BOARD EDITOR-IN-CHIEF ROBERT N. HUNN ISSUE EDITOR EVAN K. AIDMAN EDITORIAL BOARD EVAN K. AIDMAN PRISCILLA JIMENEZ DALE G. LARRIMORE DINO PRIVITERA ROBERT L. SACHS, JR. DANIEL J. SIEGEL ROYCE W. SMITH The Verdict is published ten times RIKI per R. STROSSER year by the Philadelphia Trial Lawyers Association and welcomes submission EZRA WOHLGELERNTER of case notes, reports of arbitration awards and settlements as well as articles The Verdict from is published readers. six Full times text per judicial year opinions by the submitted Philadelphia by Trial members Lawyers cannot Association be and reproduced welcomes because submission of of space case limitations. reports However, of arbitration scholarly awards notes, articles and settlements discussing as well specific as articles from and/or modifica- readers. changes tions Full text in tort judicial law and opinions other areas submitted of interest by members to our members cannot be are reproduced requested. The because Editor of reserves space limitations. the right to However, select scholarly submissions articles discussing specific and to changes edit for for publication length and/or modifications and style. in tort law and other areas of interest to All submissions should be our members are requested. sent to PTLA, to the attention of the Editor or Director The Editor reserves the right to select submissions for of Communications, 121 publication and to edit for South Broad Street, Suite length and style. 600, Philadelphia, PA ; All submissions should or be sent to: to PTLA, to the attention of the All Editor, submissions 121 South become Broad Street, the Suite property 600, of Philadelphia, the Verdict and PA ; will not be returned. or to: All submissions become the property of the Verdict and will not be returned.

3 Sung to the tune of My Favorite Things: Eighteen wheeled haulers and mixers and back hoes; Tractors and turbines and loud music rock shows; Explosives and drills and jet airplanes with wings; These are a few of our ears least favorite things. With apologizes to Julie Andrews, occupational noise exposure is serious. Whether one works as a trucker, construction worker, airplane mechanic or rock music roadie, the number of occupational hearing loss exposures, both nationally and in Pennsylvania, is notable. According to the Survey of Occupational Injuries and Illnesses, based on estimates provided by the Occupational Safety and Health Administration (OSHA), there were 700 recordable work place injuries in Pennsylvania in 2012 involving hearing loss requiring medical treatment beyond first aid, or which caused an employee to miss at least one full shift of work. Nationally, there were over 21,000 hearing loss cases. 1 ARTICLE OF INTEREST Have You Heard? Occupational Hearing Loss Is For Real Lee S Fiederer, Esq. Chartwell Law Offices, LLP As per the Pennsylvania Workers Compensation Bureau of Adjudication, from 2011 to 2012 the number of original Claim Petitions indicating a hearing loss rose from 110 files to 120. This does not necessarily include amendments to ongoing petitions or petitions filed subsequent to an original Claim Petition. Hence, the actual number of litigated hearing loss matters is likely greater. According to the Centers For Disease Control and Prevention, (CDC) occupational hearing loss is the most common work-related illness in the United States. Approximately 22 million US workers are exposed to hazardous noise levels. An additional 9 million are exposed to ototoxic (toxic to the ear) chemicals. An estimated 242 million dollars are spent annually on workers compensation by or on behalf of employers, for hearing loss disability. According to the CDC, 4 million workers must contend each day with damaging noise. Ten million people in the US have a noise related hearing loss. OSHA reports 30 million people annually are occupationally exposed to hazardous noise. This article discusses the handling of Pennsylvania Workers Compensation specific hearing loss cases for injuries sustained after February 23, Pennsylvania s Workers Comp law seeks to provide injured workers both medical coverage and partial compensation for lost earnings attributable to a work injury. The law allows for certain additional payments to the injured worker where a specific loss is suffered, even if there is no work loss. These specific losses are enumerated in the Pennsylvania Workers Compensation Act at Section 306(c). Specific hearing losses are addressed at Section 306(c)(8), which establishes in 11 subsections that: For a permanent loss of hearing caused by long term exposure to hazardous occupational noise, the percentage of impairment shall be calculated by using the binaural 3 formula provided in the Impairment Guides. 4 The binaural formula is less favorable than the monaural formula, but is appropriate with long term exposure because same would not affect just one ear. Hearing loss caused by acoustic or head trauma, on the other hand, may by its very nature be monaural (affecting only one ear). The number of weeks for which compensation shall be payable shall be determined by multiplying the percentage of the binaural hearing impairment as calculated under the Impairment Guide, by 260 weeks. Compensation payable shall be two-thirds of wages during this number of weeks, subject to the wage scale set forth in Section 306(a)(1) of the Act. For permanent loss of hearing not caused by long term exposure to hazardous occupational noise, such as acoustic 5 trauma or head injury, the Continued on page 8 3

4 4 ARTICLE OF INTEREST Develop a Nose for Handling Loss of Smell Cases Douglas V. Stoehr, Esq. Douglas V. Stoehr, Attorney at Law My soon-to-be client, Tony, was asked by his mother to bury her horse near the end of her property. A nylon strap was placed under the horse and a professional excavator used a five-foot chain to lift the horse. While placing the horse in the burial hole, the chain broke and snapped across Tony s head and face. He was treated for a fractured skull and a fractured orbital of the left eye. Cranial surgery resulted in the placement of plates in his forehead, and multiple smaller plates and screws along both sides of his nose. Tony was also diagnosed with a torn retina and a ruptured blood vessel. A claim was initiated against the liability carrier and the distributor of the chain. Fortunately, the excavation company was wellinsured and took the lead in defending the claim. Tony was unable to work for a long period of time as a self-employed landscaper whose business was thriving before this incident. Tony s wife was pregnant with their first child. He was left with only 15% vision in his left eye and had significant scarring on his scalp and across his forehead. At least 65 staples were placed in his forehead because of the surgery. As the claim unfolded, Tony began commenting about his inability to smell. Tony raised this issue with his neurosurgeon. The surgeon told him that the loss of smell would likely be permanent if it did not return within one year. Tony initially downplayed the significance of this loss and it actually seemed more troubling to his wife. I had never encountered a loss of smell claim before, so I was more than intrigued. Intuitively I knew there must be some value to the loss of smell, and made this an additional component of the overall damage claim. I reviewed many Internet articles and utilized the services of the Monell Chemical Senses Center in Philadelphia. It is interesting to note that one of the more common causes of olfactory dysfunction is head trauma. In fact, head injury is the leading cause of post traumatic anosmia. Only 10% of patients with post traumatic olfactory loss ever experience improvement. Individuals with impaired olfactory function are unable to detect important warning signs, such as gas leaks or chemical fires. Therefore, they place themselves and co-workers at an increased risk for serious injury or death. Tony was concerned because his occupation necessitated digging and excavation; work that involved the risk of striking an unknown gas line. The loss of smell component of damages was presented to the insurance carrier but the representative was unimpressed. Not surprisingly, the carrier was only interested in medical bills, lost wages, and scarring. The loss of vision was the only noneconomic injury that drew attention. Richard Doty, Ph.D., a professor at the University of Pennsylvania Medical School and Director of its Smell and Taste Center, has published extensively in the area of loss of smell. After several hours of testing, Dr. Doty concluded that Tony suffered from a total loss of olfactory function and that his condition was permanent. Frequently people who lose their sense of smell also lose the ability to taste. Tony did not have any loss of taste function per se, but his complaints of taste loss were reflected in his decreased appreciation of food flavor. This is because most tastes are dependent upon the sense of smell. To properly assess the value of the claim, three focus groups of eight people were assembled in Blair County. The sessions were held at a local hotel. I made a presentation on behalf of the client and elicited limited testimony from Tony and his wife. My partner acted as defense counsel and likewise made presentations including a cross examination of the plaintiff. The AAJ recommends that focus groups should not simply address the issue of damages but gauge juror reaction to key issues in the case. In our case, each of the three groups was asked to focus on specific issues. The jury deliberations were videotaped. After each focus group we spoke to the jurors to gain insight about the issues that had the most effect on them. Each juror was Continued on page 5

5 ARTICLE OF INTEREST Develop a Nose for Handling Loss of Smell Cases Continued from page 4 asked to identify two pieces of evidence or areas of testimony that influenced them to award higher damages. Numerous people responded with photographs, which meant the pictures of Tony s shaved head with multiple staples or Tony in recovery after surgery. Jurors also liked the testimony of Tony s wife who spoke well and maintained her composure while speaking of Tony s injuries and challenges. Jurors were also asked to identify two factors that hurt Tony s claim. Surprisingly, many people responded that the lack of medications caused them to think that his injuries were not bad. Others were influenced by the lack of physical restrictions placed on Tony by his doctors. In other words, despite losing his vision and ability to smell, and suffering from recurrent headaches, the focus groups minimized their awards for future pain and suffering and loss of earning capacity. Tony s damages were also affected by his own testimony. Tony stated that he had hopped on a jet ski recently, and wanted to resume riding four-wheelers. This caused jurors to minimize his recovery. Finally, two jurors wanted to know after the sessions whether the excavator was paid for his services. They both stated that if he had done the work gratuitously, he should not have been liable for Tony s damages! After completing the focus group, the value that each juror placed on the case was evaluated. Research of past settlements and verdicts revealed only a limited number of cases involving the loss of smell. Verdicts range from $200,000 to $450,000 for this area of damage alone. However, these cases did not involve an injured plaintiff whose occupation depended upon the ability to smell. In addition to a demand letter, the carrier was sent a settlement disc. The disc contained a Power Point presentation which allowed me to use photographs, charts and parts of medical and vocational reports as tools to advocate the strength of the case. Additionally, the settlement disc gave me the opportunity to narrate the presentation which allowed me to emphasize Continued on page 6 How to Leverage Your Time with Jenkins Law Library You only have so many hours in the day to meet with clients, conduct research, that you have time for other things? Let Jenkins Law Library be your partner. Our research librarians know the right sources to consult, the precise search strategy to use, and the best way to deliver your results. Jenkins members enjoy at least 15 minutes of free legal research for each project when they contact one of our librarians. We offer our members remote access (24/7/365) to case law, statutes, more than 250 practice books, law review articles, and more. This is a cost-effective way for you to have an online library at your fingertips. (Jenkins members also have access to Lexis and Westlaw when they visit our facility.) Many legal sources still aren't available online. It would be expensive and time-consuming for an attorney or firm to WWW. JENKINSLAW. ORG purchase and maintain a print collection to rival Jenkins. Our facility provides members with a quiet oasis away from the office. If you need to be connected, we offer free WiFi. We also rent conference rooms for you to meet with a client or take a deposition. We re here for you and we want to be your partner. Contact our Membership Department at or 5

6 ARTICLE OF INTEREST Develop a Nose for Handling Loss of Smell Cases Continued from page 4 important issues and evidence. Ultimately, the case settled in excess of one million dollars. Throughout the negotiations and to no great surprise; the insurance carrier minimized the value of not being able to smell. Yet, the evidence that was marshaled did show a significant loss of enjoyment of life. The key to successfully handling a loss of smell case is to have your client evaluated by an expert, like Dr. Doty. Present evidence on the profound effects that this loss has on your client. While the client s loss of vision and cranial surgery had significant damage value, engaging an expert on the issue of loss of smell served to increase the value of the case. Editor s Note: Doug Stoehr, Esquire, has represented injured people in Blair and the surrounding counties for 20 years. He handles automobile and general personal injury cases, and claims against nursing homes and hospitals. You may contact Mr. Stoehr at: Proving Damages for Hearing and Vision Loss Continued from page 1 would have brought the CD to a settlement conference, played it for the judge and advised the judge that I intended to play the CD for the jury. I hoped this would motivate the judge to apply additional pressure on the defense to increase the settlement offer. Nowadays you can find something similar to this CD for free. Instruct your client to go to and see if she can find the sounds she hears. Here is another technique. I know of a case where the lawyer downloaded the Emergency Broadcasting tone we have all heard on the radio or television. That s the sound this lawyer s client heard all day and all night. By placing this sound on a loop and playing it for the jury, the jury literally got into the head of the plaintiff. If you need a reminder of how annoying this sound is, try this link: In closing argument during tinnitus jury trials, I ask the jury 6 what the injury is worth in dollars and cents. I tell them, This tone is the first thing John hears in the morning, and the last thing he hears at night. More often than not, it s what he hears all night as he struggles for blissful relief in sleep. His ears will stop ringing when his heart stops beating, and then, but only then, will he have peace and quiet for the first time since Mr. Smith rear ended him. This technique is very effective in producing large verdicts and settlements. In severely debilitating cases, seven figure settlements/verdicts are possible. So is it permissible to play the Sounds of Tinnitus for a jury? Isn t it prejudicial? Isn t it unfair? The answer is yes and no. This evidence is prejudicial, but not unfairly. It accurately allows the jury to assess the plaintiff s situation and that s always permissible. As long as the lawyer accurately simulates his client s experience, it should be admitted into evidence. In crafting demonstrative evidence tools like these, it is necessary to authenticate them, that is, to prove that the sounds played for the jury accurately represent what the client hears. This is quite simple. During my client s ENT/Otolaryngologist s deposition, I play the disc and the doctor testifies that it was accurate. The client also testifies that this is what he hears. That s all there is to it. There are other important steps to take in tinnitus injury litigation. I always suggest that my clients become active with the American Tinnitus Association (ATA) and other support groups. Not only will they derive direct benefit from this, they will also indirectly help their litigation. It is important to show that the clients have done everything in their power to recover from the injuries. By joining ATA and seeking relief from her tinnitus, the client shows that she has done this. That is something that should impress the jury. Conversely, failing to seek out all reasonable remedies gives the Continued on page 7

7 ARTICLE OF INTEREST Proving Damages for Hearing and Vision Loss Continued from page 6 opportunity to the defense lawyer to point this out to the jury and attempt to shift blame to the plaintiff. There is no tried and true cure for tinnitus, though there are many remedies that desperate sufferers try. Clients should keep a journal that tracks all of the homeopathic and other treatments they have tried and what effect they had, if any. They can log how tinnitus affects their daily life. If tinnitus causes the client to sleep poorly, experience weight gain because of fatigue and inability to work out, etc., that should appear in the journal. The loss of quiet time, the inability to sit and read a good book, watch television, engage in quiet conversation, etc., all figure into how a jury assesses value. A thorough journal, supplemented on perhaps a weekly basis, creates documentary proof of the effects of tinnitus. Often clients cannot fully recall the suffering they endured years before. The journal will help to refresh their recollection so that the testimony before the jury will be complete and compelling. *** Eye injuries concern insurance companies. Everyone can imagine the horror of discovering that their eyesight has been irreparably damaged. Everyone can relate to someone who suffers a terrible eye injury. And so these cases have great potential. How can you maximize this potential? You can negotiate big settlements if you know how to creatively demonstrate to the jury your client s damages. What I do is create demonstrative evidence tools that put the parties in my clients shoes, to see through their eyes. You can have goggles prepared that simulate the client s vision loss. With a simple pair of swimming goggles, the semi-opaque plastic sheeting found on the inside of any breakfast cereal box, some plastic wrap, and transparent tape, you can simulate various levels of visual acuity. You create this effect by wrapping layers of the plastic sheeting around one or both of the lenses on the goggles. Wrap one lens if one eye is impaired and both lenses if both eyes are impaired. For example, a person whose vision has deteriorated to the point of light perception can see a source of light, but cannot see images. He or she also is unable to determine the source of that light. You simply continue wrapping layers until all that can be perceived is light. When you reach that point, you tape the sheeting to the goggles. You want the jury to be able to appreciate the difference between the client s visual acuity before the injury and after. If the client is left with 20/200 acuity, you can use a Snellen Eye Chart, that familiar eye chart with the large E at the top. The letter E at the top is the 20/200 marking. A person with 20/200 vision will barely be able to discern the E when he is at a distance of 20 feet from the chart. The test should be conducted under typical conditions of ambient household light. Two 75 watt ceiling mounted light fixtures are adequate. You might be wondering whether the goggles are unfairly prejudicial or inflammatory. They certainly are very persuasive. We want the jury, again, to see through the client s eyes and these goggles do just that. In most cases, the defense never files a motion in limine. They know that it is proper to present evidence that clearly brings home to the jury what the plaintiff s harms and losses are, even if it may tend to arouse the jurors passions. Prejudicial? Sure, and in a very helpful way to the client. And that s what you hope for. Unfairly prejudicial? No. There is nothing shocking or ghoulish, like with photos of severed or crushed body parts. Goggles are an appropriate and extremely effective way to prove damages. I bring several sets of goggles to settlement conferences for eye injury claims. I watch as the judge, the defense attorney, and the insurance claims adjuster try them on. They struggle to hide their reaction, but I see the effect. I see their disoriented reaction and their immediate recognition of what will happen if jurors try these goggles on in the courtroom. I craft one set of goggles for each juror. Imagine the jurors putting them on and trying to maneuver through the courtroom. The goggles create a jarring effect on the wearer. The first reaction is dizziness. Once the wearer regains composure, she is confronted with the difficult tasks of Continued on page 8 7

8 moving through open doors, down steps, up ramps, etc. Simple activities of daily life become much more difficult when one loses depth perception and full field of vision. Try closing one eye. Notice how your depth perception immediately disappears. Your field of vision also shrinks. This is monocular vision. You can live a very good life with monocular vision, but no one would deny that it is an enormous quality of life issue. It is also essential to have a detailed written report prepared regarding the client s functional losses. A functional vision assessment helps to focus the insurance company on the psychosocial aspects of vision impairment, ARTICLE OF INTEREST Proving Damages for Hearing and Vision Loss Continued from page 7 including mobility issues, other functional limitations, and treatment and support for people with visual impairments. The client s doctor is not going to concentrate on these issues. Ophthalmologists are oriented toward vision loss and treatment, not on loss of function and enjoyment of life. It takes a vision functional loss specialist to fill in this gap. A functional loss expert creates a full picture of the client s compromised situation and the effect her vision loss has on her quality of life. This specialist meets with the client in her home or work environment in order to assess how the vision loss affects her ability to perform her customary daily activities. This expert then writes up a detailed report. The expert should immediately recognize the effects of monocular vision on posture, social interactions, and possibly self confidence. A thorough interview, assessment and observation of mobility patterns can confirm that vision loss has a severe impact on the client. Editor s Note: Evan Aidman, Esquire, has represented plaintiffs in personal injury litigation since shortly after graduating from law school in He focuses his practices on vision injuries, hearing loss and tinnitus cases. You may contact Mr. Aidman at: Have You Heard? Occupational Hearing Loss is For Real Continued from page 3 percentage of hearing impairment shall also be calculated by using the formulas provided in the Impairment Guides. However, the multiplier is different. The number of weeks for which compensation shall be payable for such loss of hearing in one ear shall be determined by multiplying the percentage of impairment by 60 weeks. If there is a hearing loss in both ears, the multiplier is again 260 weeks. However, there is a lowend minimum threshold. If the level of hearing impairment is equal to or less then 10 percent, no benefits are payable. Similarly, there is a high end threshold. If the level of hearing impairment is equal to or more then 75 percent, there is a 8 presumption that the hearing impairment is total and complete and benefits are payable for 260 weeks. The percentage of hearing impairment shall be established solely by audiogram, which conforms to stated OSHA standards. If a claimant has previously received compensation for long term exposure to hazardous occupational noise, or from other occupational causes such as acoustic trauma or head injury, the employee may receive additional compensation for an increase in hearing impairment which occurred after the date of any prior award. This applies only if the increase in impairment is 10 percent greater than the previous compensation impairment. An employer is only liable for the hearing impairment it caused. If pre-existing occupational hearing impairment or impairment from non-occupational sources can be established, the employer is not liable, regardless of whether compensation was previously awarded. Further, even though a work-related loss of hearing in one ear affects to a greater extent a claimant who had previously suffered a nonwork-related hearing loss in the other ear, the Act does not cure this inequity. A contrary holding would make the employer liable also for the previous loss. An employer may require its employees to undergo periodic audiometric testing, at employer s expense. If the employee Continued on page 9

9 refuses, he can lose the right to pursue a claim for hearing loss, provided that the employer gives him written notice of that potential sacrifice. An employee who gets the test at the employer s direction is entitled to receive a copy of the result. A Claim Petition for hearing loss must be filed within 3 years after the date of the last exposure. Whether the employee has been exposed to hazardous noise or long term exposure is an affirmative defense, not part of claimant s burden of proof. Case law further establishes that while the AMA Guides provide the standard against which any hearing loss is measured, an expert can determine what percentage of that loss is attributable to work as opposed to another source. Case law does not allow for a reduction in the binaural impairment for aging based upon general statistics. However, when a non-occupational cause of a hearing impairment is quantifiable, the impairment percentage may be judicially reduced. Significantly, the issue of the responsible employer is often raised. A corporate successor in interest is not a new employer and can therefore be responsible for the entirety of the hearing loss. On the other hand, an employer is not a successor in interest when it has purchased only the assets of the prior company and the purchase agreement excludes the assumption of liabilities. The burden of proof ARTICLE OF INTEREST Have You Heard? Occupational Hearing Loss is For Real Continued from page 8 rests with the subsequent employer to establish the percentage of hearing loss attributable to prior employment. The judge can apportion liability between multiple employers. Case law establishes that the deadline for giving notice of an injury begins to run only when a healthcare provider informs the employee of the hearing loss, even if the employee was previously aware of the loss. Case law provides that when an employer seeks to establish that the employee was not exposed to long term hazardous noise, it can do so by showing that the noise was not excessive. Alternatively, if the employee was exposed to excessive noise, the employer can show that the exposure did not exceed 3 days a week for 40 weeks in any one year for which exposure to the hazardous noise was claimed. 6 Last, a note on tinnitus, or ringing in the ears. The most common cause of tinnitus is noise induced hearing loss. That said, tinnitus alone, without a suitable, measureable hearing loss, will not result in a compensable specific loss claim. In the case of one whose job is dependent on clear hearing (e.g. an orchestra conductor), however, a more traditional wage loss disability claim could ensue. 1 This article was prepared for publication in December 2013 and these were the most recent statistics available, as provided by the Pennsylvania Bureau of Workers Compensations Center for Work Force Information and Analysis. 2 Act 1 of 1995 was effective February 23, 1995 and amended the prior legal standard which allowed for a claimant to receive workers compensation hearing loss benefits where the claimant was able to demonstrate a loss of hearing for all practical intents and purposes. 3 Binaural, as used here, means loss measured in both ears. 4 The 4th Edition of the Guides to the Evaluation of Permanent Impairment as published by the American Medical Association. Although other Sections of the Pennsylvania Workers Compensation Act refer to use of the most current Guide, (presently the 6th Edition) the hearing loss section does not. 5 Acoustic, as used here, means exposure to a single loud trauma, such as a gunshot. 6 All case law references herein derive from Pennsylvania Workers Compensation Practice & Procedure, 2012, as published by the Pennsylvania Bar Institute. Readers are encouraged to secure the 2014 Edition of the book for updates, when it is published in the Spring of Editor s Note: Lee S. Fiederer, Esquire, is a Partner at Chartwell Law Offices, LLP in Philadelphia, PA. He specializes in the defense of Workers Compensation matters. Mr. Fiederer can be reached at: 9

10 Florida Supreme Court Rejects Caps Continued from page 2 Florida, however, like many other states, enacted a law which capped non economic damages in medical malpractice death cases at $1,000,000. Accordingly, the court reduced the award and denied plaintiff s motion challenging the constitutionality of the cap. On appeal to the 11th Circuit, plaintiff again challenged the constitutionality of the cap arguing, inter alia, that it violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and constituted a taking in violation of the Fifth Amendment of the United States Constitution. The 11th Circuit affirmed the District Court s application of the cap but agreed to certify the issue of constitutionality to Florida s Supreme Court. The court began by noting that to assess whether a statute violates equal protection, the rational basis test is used. To satisfy the rational basis test, a statute must bear a rational and reasonable relationship to a legitimate state objective and cannot be arbitrary or capriciously imposed. After careful consideration, the court ruled that the statutory cap on wrongful death noneconomic damages failed the rational basis test because it imposed unfair and illogical burdens on injured parties when an act of medical negligence gave rise to multiple claimants. The cap was unconstitutional because medical malpractice claimants did not receive the same right to full compensation as other tort claimants because of the arbitrary limitation on damages. Additionally, the court held that the statutory cap on wrongful 10 NEWS death noneconomic damages did not bear a rational relationship to the stated purpose that the cap purported to address; the alleged malpractice insurance crisis in Florida. In doing so, the Court attacked the legislature s methodology and premise for imposing caps in the first place. In 2003, the Florida legislature declared that Florida was in the midst of a medical malpractice insurance crisis of unprecedented magnitude. 1 The legislature further asserted that the increase in malpractice premiums had resulted in physicians leaving Florida, retiring early from the practice of medicine and refusing to perform high-risk procedures. To justify caps on noneconomic damages, the legislature relied heavily on a report prepared by Governor Jeb Bush s Select Task Force on Healthcare Professional Liability Insurance ( Task Force ). The report concluded that actual and potential jury awards of noneconomic damages were the key factor behind the un-affordability of medical malpractice insurance in Florida. The Court, however, found that the so called medical malpractice crisis was unsupported by the facts. The court noted that the number of physicians in both metropolitan and non-metropolitan areas in the state was actually increasing. The court also eviscerated the argument that runaway juries were substantially increasing the cost of malpractice insurance. The Court found that noneconomic jury awards only accounted for a small percentage of awards in excess of $1,000,000 over the past 14 years. The court also found the Task Force s conclusions untenable as the Task Force s report also acknowledged that the alleged crisis due to spikes in insurance premiums were simply a result of the underwriting cycle of the insurance industry whereby the price of malpractice insurance increases when the insurer s investment income decreases due to the ebbs and flows of the economy. The Court went on to note that there is no direct correlation between damage caps and reductions in malpractice premiums. In fact, studies showed that insurance premiums increased more dramatically in states with damage caps than in states that did not have damage caps. The court was also troubled by the fact that Florida s law did not have any provision requiring the insurance industry to reduce premiums once the caps went into effect. The law allowed insurance companies to keep any acquired savings resulting from the cap as profit. The 5-2 ruling was written by Justice R. Fred Lewis. The opinion only addresses damages in medical malpractice wrongful death cases. It remains to be seen how other medical malpractice claims will be affected by this decision. 1 Ch , 1, Law of Fla., at Editor s Note: Robert Hunn, Esquire, is Editor-In-Chief of the Verdict and is a partner in the law firm of Kolsby, Gordon, Robin, Shore & Bezar. You may contact Mr. Hunn at:

11

12 P H I L A D E L P H I A T R I A L L AW Y E R S A S S O C I AT I O N P H I L A D E L P H I A T R I A L L AW Y E R S A S S O C I AT I O N VERDICT 121 South Broad Street, Suite 600, Philadelphia, Pennsylvania INSIDE THIS ISSUE VOLUME ISSUE 4 In This Issue Proving Damages for Hearing and Vision Loss in Third Party Cases - Evan K. Aidman, Esq. Florida Supreme Court Rejects Caps on Noneconomic Damages in Wrongful Death Medical Malpractice Cases - Robert N. Hunn, Esq. Have Your Heard? Occupational Hearing Loss Is For Real - Lee S. Fiederer, Esq. Develop A Nose for Handling Loss of Smell Cases - Douglas V. Stoehr, Esq

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