Hearing loss claims. A claimant must file a new CA 2 claim form if the claim is for additional exposure since an earlier award for hearing loss ( or other permanent injuries).
The audiologist must certify to OWCP that the machine was correctly calibrated. The
MD ENT must provide an opinion letter indicating the type of exposure to noise
“contributed” to the hearing loss. The AMA Guides ,Sixth Edition for schedule awards must used on all rating decisions since May1, 2009. There may be an amendment in the next few months the the 6 th
ED so tell your MD to check to be sure the right one is being used. For all schedule award opinions in addition to hearing loss it is necessary for the MD to refer to the specific page of the 6th ed. Used to determine each calculation.
Request the checklist for hearing loss from the agency by FOIA Hearing loss (CA-35B);
U.S. Department of Labor Employment Standards Administration
Office of Workers' Compensation Programs
Division of Federal Employee's Compensation
Washington, D.C. 20210
FECA BULLETIN NO. 09-03
Issue Date: March 15, 2009
Expiration Date: May 1, 2010
Subject: Permanent Impairment/Schedule Awards: Sixth Edition of the AMA Guides to the Evaluation of Permanent Impairment
Background: The schedule award provisions of the Federal Employees' Compensation Act (FECA) at
5 U.S.C. 8107 and its implementing regulations at 20 C.F.R. 10.404 establish the compensation payable to employees sustaining permanent impairment. For consistent results and to ensure equal justice under the law to all claimants, good administrative practice necessitates the use of a single set of tables with uniform standards applicable to all claimants. The American Medical Association's
(AMA) Guides to the Evaluation of Permanent Impairment has been adopted by the Office of
Workers' Compensation Programs Division of Federal Employees' Compensation (DFEC) as the appropriate standard for evaluating schedule losses. In January 2008, the AMA published the Sixth
Edition of the Guides, noting that the Guides are revised periodically to incorporate current scientific clinical knowledge and judgment. This Edition implements substantial reforms to the methodology of calculating permanent impairment. In accordance with its long established practice, the DFEC is moving forward to the most recent version of the Guides and generally utilizes the Sixth Edition in evaluating permanent impairment under the Guides.
The Sixth Edition substantially revises the evaluation methods used in previous Editions, characterizing the new methodology's objectives as: to be consistent, to enhance relevancy, to promote precision and to standardize the rating process. The AMA describes the Sixth Edition of the
Guides as implementing a major paradigm shift in the way impairment evaluations are conducted based on five axioms: (1) Adopting terminology and the conceptual framework of disablement outlined by the World Health Organization's (WHO's) International Classification of Functioning,
Disability, and Health (ICF); (2) Becoming more diagnosis-based and basing the diagnoses in evidence; (3) Optimizing rater reliability through simplicity, ease of application and .
following

precedent; (4) Rating percentages are functionally based to the fullest extent possible; (5) Stressing conceptual methodological congruity within and between organ rating systems.
The attachment describes the major changes in the Guides applicable to FECA as well as those areas where other criteria apply.
Purpose: To provide information about the use of the Sixth Edition of the AMA Guides and changes found in the new version.
Applicability: Claims, Examiners, Senior Claims Examiners, Hearing Representatives, All
Supervisors, District Medical Directors and Advisers, Technical Assistants, Rehabilitation Specialists and Staff Nurses.
Action:
1. EFFECTIVE DATE OF MAY 1, 2009. All Claims Examiners should begin using the Sixth Edition of the AMA Guides effective May 1, 2009. Correspondence with treating physicians, consultants and second opinion specialists should reflect the use of the new Edition for decisions issued after May 1,
2009, and form letters that refer to the AMA Guides are revised to reflect this change. All schedule award decisions issued on or after May 1, 2009, should be based on the Sixth Edition of the A.M.A.
Guides with the exceptions (such as statutory criteria) as noted.
2.
RECALCULATIONS RESULTING FROM HEARINGS, REVIEW OF THE WRITTEN RECORD OR
RECONSIDERATIONS. Any recalculations of previous awards which result from hearings or reconsideration decisions issued on or after May 1, 2009, should be based on the Sixth Edition of the
Guides. However, if the percentage of the award is affirmed but the case is remanded for further development of some other issue, i.e. pay rate, recalculation of the percentage of the award under the Sixth Edition is not required.
3.
REQUESTS FOR INCREASED SCHEDULE AWARD WHERE PRIOR AWARD WAS MADE
UNDER AN EARLIER EDITION OF AMA GUIDES. In accordance with DFEC's established practice when moving to an updated version of the AMA Guides, awards made prior to May 1, 2009, are not and should not be recalculated merely because a new Edition of the Guides is in use. A claimant who has received a schedule award calculated under a previous Edition and who claims an increased award, will receive a calculation according to the Sixth Edition for any decision issued on or after May
1, 2009. Should the later calculation result in a percentage impairment lower than the original award
(as sometimes occurs), the Claims Examiner or Hearing Representative should make the finding that the claimant has no more than the percentage of impairment originally awarded, that the evidence does not establish an increased impairment and that therefore the Office has no basis for declaring an overpayment.
Disposition: Retain until the indicated expiration date.
DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation

FECA PM 2-808.7(b)(3)
FECA-PT2 Last Change: 10/22/05 Printed: 09/25/2007 Page: 316
(3) In some instances, particularly in hearing loss cases, a claim for an additional schedule award will be based on an additional period of exposure. This constitutes a new claim and should be handled as such.
Where a schedule award is paid before exposure terminates, no additional award will be paid for periods of less than one year from the beginning date of the last award or the date of the last exposure, whichever comes first.
If the claimant requests review of such a case, he or she must be asked to clarify whether the request is for review of the award or for additional compensation subsequent to the prior award.
(a) If the claimant is requesting review of the award, the case will be processed as a request for reconsideration, hearing, or appeal, whichever is applicable.
(b) If the claimant is requesting additional compensation, the CE will inform the claimant that a new claim should be filed one year after the beginning date of the last award or the date of last exposure, whichever occurs first.
2-0806 Exhibit 10: Sample Letter to Claimant--Hearing Loss
Dear CLAIMANT NAME:
I am writing in reference to your claim for benefits under the Federal
Employees' Compensation Act (FECA) for hearing loss. We have received and reviewed [DESCRIBE WHAT WAS RECEIVED]. This information is not sufficient for us to determine whether you are eligible for benefits because [EXPLAIN WHY
EVIDENCE INSUFFICIENT].
Please provide the information requested below to us at the address on the
FECA-PT2 Last Change: 10/22/05 Printed: 09/25/2007 Page: 266 letterhead. Include as much detail as possible. Send a copy of your response to your employer for comments.
1. List your employment history by employer, job title, and inclusive dates. Include all employment (Federal and non-Federal) as well as military service. For each job title, describe source(s) of noise, number of hours of exposure per day, and use of any safety devices (such as ear defenders) to protect against noise exposure. If used, state the approximate number of hours per day and days per week they were used.
2. Are you still exposed to hazardous noise at work? If not, give the date you were last exposed.
3. Give the date you first noticed your hearing loss.
4. Give the date you first related your hearing loss to work exposure and explain how you realized this.
5. Have you ever previously filed a workers' compensation claim for hearing loss or an ear condition? If so, give date of claim, name and address of the

agency where filed, benefits received, and file number.
6. Describe all previous ear or hearing problems. If you have been examined or treated by a doctor for an ear or hearing problem, provide copies of all medical reports and audiograms.
7. Describe any hobbies which involve exposure to loud noise.
8. [FREE FLOW IF DESIRED]
We may write directly to a physician or any other party who may be able to provide information which will help us decide your eligibility for benefits.
Our efforts are intended to assist you in collecting evidence. Please understand that it is ultimately your responsibility, as the claimant, to provide or ensure the provision of all evidence needed to decide your claim.
Whenever we request information, we will send you a copy so you may ensure that the requested information is provided as soon as possible.
We are committed to making a timely decision on your claim. We will allow 30 days for the submission of all requested evidence. If we have not received the requested information, an indication that it is forthcoming, or evidence that the information is not necessary to decide your claim, we will render a decision on your claim based on the evidence in file.
If you do not understand any part of this request, or you cannot provide all requested information for any reason, you should call or write to us immediately and request clarification or assistance.
Sincerely,
NAME OF
2-0806 Exhibit 11: Sample Letter to Agency--Hearing Loss
Dear EMPLOYING AGENCY REPRESENTATIVE:
I am writing in reference to the claim for benefits under the Federal
Employees' Compensation Act (FECA) filed by the above-named employee for hearing loss. We have reviewed the Form CA-2 and all accompanying information. We need the following additional information from you to determine whether the employee is eligible for benefits under the FECA.
1. Provide comments from a knowledgeable supervisor on the accuracy of all statements provided by the employee relative to this claim. Does the agency concur with the employee's allegations? If there are points of disagreement, please explain fully and provide any appropriate supportive evidence.
2. Provide locations of job sites where exposure allegedly occurred.
3. Describe the sources of exposure to noise (machinery, etc.)
4. Provide the decibel and frequency level (noise survey report) for each job site. If no tests are available, please arrange for them to be made if possible. If no tests can be made, advise whether the employee was or was not exposed to injurious noise.
5. Provide the period of exposure, hours per day, and days per week.
6. Describe the type(s) of ear protection provided. If noise attenuation
(in decibels) is known, please furnish it also.
7. Provide copies of the employee's job sheet, employment record and
SF-171.
8. Provide a copy of all medical examinations pertaining to hearing or ear problems, including pre-employment examination and all audiograms.
9. If the employee is no longer exposed to hazardous noise, give the date of last exposure and the pay rate in effect on that date.
10. [FREE FLOW IF DESIRED]

Title 20 CFR 10.102(b) provides that, in the absence of a full reply from the agency, we may accept the claimant's allegations as factual. Your assistance in ensuring that all requested information is provided to OWCP within 30 days is appreciated.
If clarification of any portion of this request is required, or if you cannot provide any requested information, please contact us immediately. Thank you for your assistance.
Sincerely,
NAME

FECA PM 3-0600.66. Content of Medical Report. Regardless of the form a medical report takes, the following information will usually be required: a. Dates of examination or treatment; b. Clinical history given to the physician; c. Detailed description of physical findings; d. Results of any x-ray or laboratory tests; e. Diagnosis; f. Prognosis; g. Description of impairment, if any; h. Specific limitations for work; i. Clinical course of treatment followed; j. The physician's reasoned opinion as to the relationship between the condition found and factors of Federal employment . (Causal relationship is discussed in PM Chapter
2-805.)
In addition, a detailed description of the employee's work tolerance limitations is required in any case where the issue is the claimant's ability to return to duty, and a detailed description of anatomical impairment in accordance with the AMA Guides is required in any claim for schedule award.
FECA PM 3-0600 (8.) Specific Conditions. OWCP has developed checklists for use by claimants and their official superiors in order to better identify and gather the information required to support a claim for occupational disease. These checklists address the following conditions: hearing loss, asbestos, coronary/vascular conditions, skin diseases, pulmonary disease other than asbestos, psychiatric illness, and carpal tunnel syndrome. A general checklist is also available for use in claims for occupational diseases not enumerated above.
Occupational disease claims in general are discussed in PM Chapter 2-806. The following guidance is provided with respect to specific medical conditions encountered in OWCP claims: a. Hearing Loss. Refer to "Medical Management of Claims under the FECA" for a discussion of development of such cases. It is generally accepted that hearing loss may result from prolonged exposure to noise levels above 85 decibels. Acoustic trauma may, however, result from decibel levels below 85 decibels if exposure is sufficiently prolonged. OWCP therefore does not require that the claimant show exposure to
FECA-PT3 Last Change: 03/17/05 Printed: 09/25/2007 Page: 93 injurious noise in excess of 85 decibels as a condition to approval of the claim.
(1) After obtaining all pertinent factual evidence, the CE will prepare a Statement of Accepted Facts. Unless the case file already contains a reliable medical report which fully meets OWCP requirements, the CE should refer the claimant for audiological evaluation and otological examination which addresses the relationship of any hearing loss to the employment and the degree of any permanent impairment.
The audiological evaluation and the otological examination are to be performed by different individuals as a method of evaluating the reliability of the findings through independent observations. If possible, the two consultations should occur on the same day. The usual information sent to consultants, as outlined in PM
3-500.3c, should be forwarded to both the audiologist and otolaryngologist.
(2) The audiological testing is to be performed by persons possessing certification in audiology from the American Speech-Language-Hearing

Association (ASHA), or State licensure as an audiologist. The audiological testing should precede the visit to the otolaryngologist since the latter should have the audiological findings at the time of the examination. The audiological examination should be conducted in accordance with OWCP requirements, which are described in Form CA-1087 (Exhibit 4).
(3) The medical examination should be performed by an otolaryngologist certified (or eligible for certification) by the American Board of Otolaryngology.
The physician should be instructed to conduct additional tests or retests in those cases where the initial tests were inadequate or there is reason to believe the claimant is malingering. Form CA-1331 and Form CA-1332 can be used to obtain the required report.( Exhibit 5) Pages 1-2 (Link to Image); Pages 3-4
(Link to Image ) )
(4) Audiological equipment used for testing must meet the calibration protocol embodied in the Professional Services Board Manual of the ASHA (see Exhibit
6). Each audiologist or physician who conducts hearing tests must certify that at the time of examination the equipment used for testing met the standards for accreditation of an audiological facility by ASHA (ANSI S 3.6 (1969) and 3.1
(1977), respectively).
(5) Where the employee is deceased, the following procedures are to be followed according to the stage of development of the medical evidence:
(a) Where an audiogram meeting the requirements set forth in Form
CA-1087, either alone or in conjunction with audiograms that do not meet
OWCP requirements, appears in the file, the audiogram may be used as
FECA-PT3 Last Change: 03/17/05 Printed: 09/25/2007 Page: 94 the basis of an award if it is medically determined to be internally consistent (the various measurements of the components of hearing are in substantial agreement) and the evidence shows a causal relationship between the hearing loss and employment.
(b) Where no audiogram meets the requirements of Form CA-1087, an audiologist should review all audiograms in the case to ascertain whether they are internally consistent with each other and whether the hearing loss was causally related to employment. If so, an appropriate audiogram should be selected as the basis for an award. If not, every effort should be made to determine an equitable award. Where an award is made based on evidence which does not fully meet the OWCP's requirements, the CE should prepare a detailed memorandum to the file which explains how the award was determined. Such decisions should be signed at the level of the
Senior CE or above.
(6) The DMA calculates the percentage of hearing loss using Form CA-51 (see
Exhibit 3 of PM 3-700 (Link to Image,)) if a schedule award is at issue. The
DMA provides opinion regarding the causal relationship between any hearing loss and the employment and verifies the calculations of the audiologist.
In Gary D. Skillern, Appellant, ECAB Docket No. 04-753, Issued February 18, 2005,
2005 WL 857648 (E.C.A.B.), the Board the results from annual audiograms done for the

employing establishment from May 15, 1960 through November 3, 2000 showed a progressive loss of hearing. The Board thus finds that the audiograms constitute constructive actual knowledge by appellant's immediate superior of a possible employment-related hearing loss before appellant's retirement and last exposure to employment-related noise, and that appellant's claim is timely under section 8122(a)(1) of the Act. See Joseph J. Sullivan , 37 ECAB 526, 527 (1986) (constructive knowledge of possible employment-related hearing loss provided by annual employing establishment audiograms). Gary D. Skillern, Appellant, ECAB Docket No. 04-753, Issued February
18, 2005, 2005 WL 857648 (E.C.A.B.).
2009 WL 2602045 (E.C.A.B.)
*1 S.E., Appellant and DEPARTMENT OF TRANSPORTATION, FEDERAL
AVIATION ADMINISTRATION, Kansas City, KS, Employer
Docket No. 08-2243
Case Submitted on the Record
Issued July 20, 2009
Appearances: Appellant, pro se, Office of Solicitor, for the Director
DECISION AND ORDER
Before: DAVID S. GERSON, Judge, MICHAEL E. GROOM, Alternate Judge, JAMES
A. HAYNES, Alternate Judge
JURISDICTION
On August 12, 2008 appellant filed a timely appeal from a May 7, 2008 merit decision of the Office of Workers' Compensation Programs, denying his claim for an employmentrelated hearing loss. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this claim.

ISSUE
The issue is whether appellant established that he sustained an employment-related hearing loss causally related to factors of his federal employment.
FACTUAL HISTORY
On August 11, 2006 appellant, then a 59-year-old airway transportation system specialist, filed an occupational disease claim (Form CA-2) alleging that he sustained hearing loss due to his employment.
By letter dated August 17, 2006, the Office notified appellant of the deficiencies in his claim and requested that he provide additional information. In a letter of the same date, it also requested that the employing establishment provide information relating to appellant's employment-related noise exposure, including the location, sources and frequency and decibel levels of noise exposure.
In response, appellant submitted a statement alleging that sometime in the mid-1980s, while working at the Kansas City International Airport, he experienced a loud tone in his left ear from a Pax phone system and that his hearing had decreased during his employment over the past 29 years. He noted that, while he sustained a loss in both ears, his left ear sustained a greater loss.
Appellant summarized his federal employment history. He stated that from July 1977 to
December 1992 he worked on environmental systems in facilities associated with several
Kansas airports. During this time, appellant's noise exposure varied from day-to-day but some days were very noisy for several hours due to running engine generators, servicing centrifugal chillers, water pumps, air handlers and air compressors and working on navigational aids near the runways. Appellant estimated that he was exposed to two or more hours of moderate-to-high noise every day, although sometimes when repairing equipment associated with pneumatic controls, centrifugal chillers or engine generators the exposure could be six to eight hours per day for several days. From December 1992 to March 1999 he worked as an environment support unit supervisor at Kansas City
International Airport, where he was exposed to the same noise levels in his prior position but less frequently. From March 1999 to December 2002 appellant worked in the Great
Plains System Management Safety Office, where he was exposed to very loud noise in engine generator facilities and at facilities adjacent to runway facilities that could last more than an hour at a time. Beginning in December 2002, he served as a member of a technical support staff and, while much of his work was over the telephone, he visited to various airports when necessary. Appellant also served as a resident engineer from

October 2005 until February 2006, where he was exposed to noise eight hours a day, five days a week, for nearly three months from three temporary air conditioning units. He alleged that these units added to the ambient noise from the RADAR equipment and was very irritating.
*2 In a July 21, 2006 medical report, Dr. Gregory J. Mulcahy, a Board-certified otolaryngologist, noted appellant's complaints of hearing loss, especially in the left ear, dating back 10 years or more. He advised that appellant was exposed to significant occupational noise exposure during his 8-year employment in the Air Force and 20 years with the employing establishment. Appellant stated that back in the late 1980s he sustained acute left ear hearing loss due to a blast of noise in his ear and that his hearing has gradually and persistently worsened. He also reported faint tinnitus bilaterally, no family history of hearing loss and that he felt his working on a noisy project last year precipitated a worsening of his hearing. A tuning fork evaluation revealed that appellant lateralized to the right side and showed a positive Rinne evaluation bilaterally. Dr.
Mulcahy summarized the results of an attached audiogram, finding that appellant had normal hearing up to 3,000 hertz (Hz), but then a sharp drop to about 50 decibels at 4,000
Hz and above. On the left side appellant had mixed hearing loss that was sensorineural in the low and mid frequencies around 40 decibels with a conductive component taking him down to 65 decibels in the lowest frequencies, with a little improvement and then a fairly severe high frequency drop afterward. The audiogram also revealed type A tymps, speech recognition thresholds of 20 decibels on the right and 60 decibels on the left and 100 percent speech discrimination on the right and 76 percent on the left. Dr. Mulcahy diagnosed noise-induced sensorineural hearing loss bilaterally. He opined that appellant had a large, unusual conductive pattern on the left ear but there was no clear reason for conductive hearing loss.
On December 18, 2006 the Office referred appellant to Dr. Mark J. Maslan, a Boardcertified otolaryngologist, for a second opinion evaluation. It prepared a statement of accepted facts addressing his federal work history and noise exposure commencing 1977.
The Office stated that from 1977 to 1992 and from 1992 to 1999 appellant's noise exposure varied and that no hearing protection was worn other than earmuffs in the engine generator rooms. From 1999 to 2002 appellant was exposed to noise intermittently and that he wore earmuff or plugs and from 2002 to present he was sometimes exposed to noise, but was provided hearing protection.
On January 16, 2007 appellant was examined by Dr. Maslan. In a January 19, 2007 medical report, Dr. Maslan reviewed appellant's records and the June 2006 audiogram.
He summarized appellant's 30-year employment with the employing establishment, stating that from 1977 to 1992 he worked around generators, centrifugal chillers, boilers and water pumps, as well as jet aircraft operations, however, none of his exposure was prolonged. Dr. Maslan reported that appellant would check the chillers for about a half an hour every morning and intermittently during the day for anywhere as long as an hour, but rarely for extended periods of time and that during these times he would not wear ear protection. An audiogram revealed essentially normal hearing in the right ear up to higher pitches where there was a definite decrease in hearing. Appellant's hearing went down to

50 decibels at 6,000 Hz. The audiogram further revealed poor function in the left ear with marked sensorineural hearing loss and marked speech discrimination. Dr. Maslan opined that neither appellant's history nor his hearing loss patterns were compatible with a noiseinduced loss.
*3 In a supplemental report dated January 29, 2007, Dr. Maslan diagnosed mild-tomoderate high frequency sensorineural hearing loss and tinnitus based on the January 16,
2007 examination. Where asked whether appellant showed a sensorineural loss in excess of what would be normally predicated on the basis of presbycusis, Dr. Maslan answered no. Dr. Maslan answered “not applicable: when asked to provide all other relevant historical facts relating to the hearing loss, including emotional disorders, systemic disease, local infections, ototoxic drug usage or surgery. He opined that appellant's sensorineural hearing loss was not, in part or all, due to noise exposure encountered in his federal civilian employment. Dr. Maslan reiterated that neither appellant's history nor his hearing loss were compatible with noise-induced hearing loss.
The Office submitted appellant's case to an Office medical adviser. On February 1, 2007 the Office medical adviser reviewed the report of Dr. Maslan. He recommended that the
Office not accept that appellant's audiometric abnormalities, as shown in the January 16,
2007 testing, were due to noise exposure in his civilian federal employment.
By decision dated February 7, 2007, the Office denied the claim, finding that appellant did not establish that his hearing loss resulted from the accepted employment factors. It found that neither appellant's history nor hearing loss patterns were compatible with noise-induced hearing loss. The Office reissued this decision on March 20, 2007 to protect appellant's appeal rights, as the initial mailing containing the decision had been returned to the Office as undeliverable.
On March 14, 2008 appellant filed a request for reconsideration. He noted that he was providing prior audiograms and noise studies he obtained from a RADAR factory, where he worked for over three months from late 2005 until early 2006. Appellant contended that Dr. Maslan was incorrect in stating that he had not been exposed to much noise and that he spent many hours every day working in noisy environments. He mentioned that he spent six to eight hours a day, one to two days a week, servicing engine generators from
1977 to 1990, as well as several hours each week working alongside active taxiways and runways with large commercial jets constantly arriving and departing. Appellant also stated that he spent time every day from March through November maintaining the centrifugal chiller.
Appellant submitted 1979, 1982 and 1984 audiogram testing results, as well as a March
12, 1985 medical report from Dr. Pat A. Barelli, a Board-certified otolaryngologist, who noted his claims that he was exposed in September 1984 to noise due to a telephone system at his work and that he had progressive hearing loss and dizziness. Dr. Barelli stated that a recent March 4, 1985 audiogram showed consistent hearing loss, as compared with a February 1985 audiogram taken by the employing establishment. He diagnosed moderate neurosensory hearing loss with an undetermined cause and left,

moderately severe tinnitus. Dr. Barelli further stated that a diagnostic scan was performed, ruling out acoustic neuroma or pathology of the brain or ear and opined that this finding supported the concept that appellant's hearing loss was viral or noise related in origin.
*4 On March 31, 2008 the Office referred the record to the same Office medical adviser.
In an April 5, 2008 medical report, the Office medical adviser stated that Dr. Maslan's medical reports explained why the Office could not accept that appellant sustained hearing loss due to noise exposure in his civilian employment. He found that none of the evidence submitted by appellant changed Dr. Maslan's finding that his pattern of hearing loss was not the pattern seen in noxious, noise-induced hearing loss. The Office medical adviser noted that appellant was not entitled to a schedule award due to hearing loss.
By decision dated May 7, 2008, the Office found that appellant did not submit sufficient factual and medical evidence to establish that he was exposed to hazardous noise levels for the length of time necessary to establish noise-induced hearing loss. It also found that the medical evidence did not support that he sustained noise-induced hearing loss due to exposure to hazardous noise levels during his civilian federal employment. The Office relied upon the Office medical adviser's April 5, 2008 report.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees' Compensation
Act[FN1] has the burden of establishing the essential elements of his claim by the weight of the reliable, probative and substantial evidence,[FN2] including that he is an
“employee” within the meaning of the Act[FN3] and that he filed his claim within the applicable time limitation.[FN4] The employee must also establish that he sustained an injury in the performance of duty as alleged and that his disability for work, if any, was causally related to the employment injury.[FN5]
To establish that an injury was sustained in the performance of duty in a claim for occupational disease, an employee must submit: (1) a factual statement identifying employment factors alleged to have caused or contributed to the presence or occurrence of the disease or condition; (2) medical evidence establishing the presence or existence of the disease or condition for which compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to the employment factors identified by the employee.[FN6]
ANALYSIS

The issue is whether appellant established that he sustained an employment-related hearing loss due to noise exposure during his federal employment. The Board finds this case is not in posture for decision.
In order to establish a compensable injury, appellant is required to establish that his hearing loss resulted from noise exposure during his employment.[FN7] He submitted a
July 21, 2006 medical report from Dr. Mulcahy, who opined that appellant sustained noise-induced sensorineural hearing loss bilaterally and that he also had a large, unusual conductive hearing loss pattern on the left hear, with no reason for conductive hearing loss. Appellant also submitted a March 12, 1985 report from Dr. Barelli, who opined that his hearing loss was viral or noise related in origin.
*5 The Office referred appellant to Dr. Maslan for a second opinion evaluation. On
January 19, 2007 Dr. Maslan opined that neither appellant's history nor his hearing loss patterns were compatible with noise-induced hearing loss. He repeated this finding in a
January 29, 2007 medical report and further stated that appellant's diagnosed mild-tomoderate high frequency sensorineural hearing loss and tinnitus were not caused by his noise exposure during his federal civilian employment. In medical reports dated February
1, 2007 and April 5, 2008, an Office medical adviser noted that causal relationship was not established based on Dr. Maslan's findings.
The Board finds that Dr. Maslan's medical opinion is of diminished probative value and an insufficient basis to support the Office's denial of appellant's claim.
Dr. Maslan opined that appellant's hearing loss patterns were incompatible with noiseinduced hearing loss. However, he failed to provide a fully rationalized medical opinion explaining his conclusion. Dr. Maslan stated that appellant did not show a sensorineural loss in excess of what would be normally predicated on the basis of presbycusis. Further, where asked to comment on historical facts relevant to appellant's hearing loss, including emotional disorders, systemic disease, local infections, ototoxic drug usage, and surgery,
Dr. Maslan answered “not applicable.” It appears that he was, thereby, indicating that appellant's hearing loss was solely due to presbycusis. However, Dr. Maslan failed to provide a sufficient explanation of how he concluded that presbycusis was the cause of appellant's hearing loss. Presbycusis is defined as a progressive bilaterally symmetrical perceptive hearing loss occurring with advancing age.[FN8] Therefore, Dr. Maslan's opinion on causal relationship is of diminished probative value.[FN9]
Moreover, the Board finds that Dr. Maslan's opinion is of diminished probative value because it was based on an inaccurate factual background.[FN10]
In summarizing appellant's exposure to noise during his employment, Dr. Maslan only referred to the employment period from 1977 to 1992, where appellant worked without ear protection around generators, centrifugal chillers, boilers, water pumps and jet aircrafts. He noted that appellant checked the chillers for about half an hour every morning and intermittently during the day for anywhere as long as an hour, but that he was rarely exposed to noise for extended periods of time. The basis for Dr. Maslan's

information regarding appellant's limited exposure is unclear, as the statement of accepted facts only stated that during this period of appellant's employment his noise exposure varied from day-to-day. Moreover, this description is inconsistent with appellant's statements regarding his exposure to noise from 1977 to 1992, as he alleged that he was exposed to two or more hours of moderate to high noise daily, although occasionally while repairing certain equipment the exposure could be from six to eight hours per day for several days.
*6 Dr. Maslan failed to address appellant's exposure to varying levels of noise while working for the Federal Government from 1992 through present. The statement of accepted facts provided descriptions of appellant's positions and noise exposure during this time; however, it appears that the physician did not consider any exposure after 1992 when finding that appellant's history was incompatible with noise-induced hearing loss.
To assure that the report of a medical specialist is based upon a proper factual background, the Office provides information through the preparation of a statement of accepted facts. When a second opinion physician does not use the statement of accepted facts as the framework in forming his opinion, the probative value of the opinion is diminished or negated altogether.[FN11] As Dr. Maslan did not follow the statement of accepted facts, as he misstated appellant's employment-related exposure from 1977 to
1992 and failed to address appellant's employment after 1992.
It is well established that proceedings under the Act are not adversarial in nature, nor is the Office a disinterested arbiter. While the claimant has the burden to establish entitlement to compensation, the Office shares the responsibility in the development of the evidence to see that justice is done.[FN12] As the Office undertook development of the evidence by referring appellant to a second opinion physician, it has the duty to secure an appropriate report addressing the relevant issues.[FN13] Because Dr. Maslan did not base his report on an accurate factual history and failed to provide a rationalized medical opinion to support his findings, the case will be remanded to the Office for further development of the medical evidence.
The Board further notes that the employing establishment did not provide any actual studies or evidence regarding appellant's duration and levels of exposure to hazardous noise during his federal employment. The Office initially requested this information from the employing establishment in an August 17, 2006 letter. However, it failed to follow through in its request despite the employing establishment's failure to respond. Because the levels and duration of exposure to hazardous noise is the type of evidence normally obtained from the employing establishment, the Office has a particular responsibility to develop this evidence.[FN14] On remand, the Office should make additional requests to the employing establishment and, if possible, make findings of fact concerning the noise level in the employing establishment and the length and period of such exposures.[FN15]
CONCLUSION

The Board finds that this case is not in posture for a decision regarding whether appellant established that he sustained an employment-related hearing loss in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the May 7, 2008 decision of the Office of Workers'
Compensation Programs is set aside. The case is remanded for further proceedings consistent with this opinion.
FN1. 5 U.S.C. §§ 8101-8193.
FN2. J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M.
Whelan, 20 ECAB 55, 57 (1968).
FN3. See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de
Guzman (Mother of Elpedio Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
FN4. R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A.
O'Donnell, 7 ECAB 227, 231 (1954); see 5 U.S.C. § 8122.
FN5. G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine
Pendleton, 40 ECAB 1143, 1145 (1989).
FN6. See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276,
279 (1994).
FN7. See Leon Thomas, 52 ECAB 202 (2001).
FN8. Dorland's Illustrated Medical Dictionary, 27th Edition (1988).

FN9. See Linda I. Sprague, 48 ECAB 386 (1997); Jennifer L. Sharp, 48 ECAB 209
(1996).
FN10. The Board notes that the Office procedure manual provides that it is generally accepted that hearing loss may result from prolonged exposure to noise levels above 85 decibels. Acoustic trauma may, however, result from levels below 85 decibels if exposure is sufficiently prolonged. The Office, therefore, does not request the claimant show exposure to injurious noise in excess of 85 decibels as a condition to approval of the claim. Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical
Reports, Chapter 3.600.8(a) (October 1990).
FN11. Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical
Reports, Chapter 3.600.3 (October 1990).
FN12. Richard Kendall, 43 ECAB 790 (1992); Isidore J. Gennino, 35 ECAB 442 (1983).
FN13. When the Office refers a clamant for a second opinion evaluation and the report does not adequately address the relevant issues, the Office should secure an appropriate report on the relevant issues. Ayanle A. Hashi, 56 ECAB 234 (2004). See also Mirna
Cruz, Docket No. 06-183 (issued April 5, 2006) (where the Board found that the second opinion physician's medical report was of little probative value and could not constitute a basis for denying the claim because it was not based on the statement of accepted facts.
The Board remanded the case to the Office).
FN14. See Richard Kendall, 43 ECAB 790 (1992); Isidore J. Gennino, 35 ECAB 442
(1983). See also R.B., supra note 12 (where the Board remanded the case because the
Office failed to obtain evidence from the employing establishment regarding the duration and levels of the claimant's noise exposure prior to denying his claim for hearing loss.
The Office only sent one development letter to the employing establishment requesting noise survey reports and periods and sources of appellant's noise exposure. The employing establishment did not address these requests in its controversion of the claim).
FN15. See David Rossman, 9 ECAB 454 (1957) (where the Board remanded the case finding that the record was devoid of evidence from the employing establishment and the claimant regarding the levels and length of noise exposure and, thus, was not in posture for decision regarding the claimant's claim for hearing loss).
Employees' Compensation Appeals Board (E.C.A.B.)
U.S. Department of Labor

2009 WL 2602045 (E.C.A.B.)
END OF DOCUMENT
(c) 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
2009 WL 2602172 (E.C.A.B.)
*1 E.M., Appellant and TENNESSEE VALLEY AUTHORITY, Raccoon Mountain, TN,
Employer
Docket No. 09-307
Case Submitted on the Record
Issued July 28, 2009
Appearances: Appellant, pro se, Office of Solicitor, for the Director
DECISION AND ORDER
Before: COLLEEN DUFFY KIKO, Judge, MICHAEL E. GROOM, Alternate Judge,
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On November 13, 2008 appellant filed a timely appeal from the September 3, 2008
Office of Workers' Compensation Programs' schedule award for nine percent monaural hearing loss of the right ear. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award in this case.

ISSUE
The issue is whether appellant has more than nine percent monaural hearing loss for the right ear. Appellant argues that he has hearing loss in both ears.
FACTUAL HISTORY
On October 19, 2007 appellant, then a 55-year-old hydrotechnician, filed a claim for compensation benefits alleging that he developed hearing loss due to his federal employment. He became aware of his hearing loss on January 1, 1994 and was exposed to noise at his federal employment until his retirement on October 12, 2007.[FN1]
The employing establishment submitted employing establishment audiograms dated April
28, 1975 to February 23, 2007 which revealed progressive bilateral sensorineural hearing loss. A March 16, 2007 audiogram revealed sensorineural hearing loss in the right ear and sensorineural hearing loss in the left ear between 3,000 and 4,000 cycles per second
(cps). He also submitted an industrial hygiene assessment report.
Appellant submitted an employment history with job descriptions for positions held including a yarn tender, material handler, airframe repairman, electrician's helper and hydrotechnician. In an accompanying statement, he indicated working at the employing establishment since July 1989 as an electrician and hydrotechnician. Appellant was exposed to noise from screw compressor chillers, air blast breakers and turbine generators for 90 percent of his workday. He noted his hearing condition had worsened and that his prior claim for hearing loss was denied.
A February 28, 2008 statement of accepted facts set forth appellant's noise exposure during his employment with the employing establishment.
By letter dated March 4, 2008, the Office referred appellant and the statement of accepted facts to Dr. Jeffrey A. Paffrath, a Board-certified otolaryngologist, for an otologic examination and an audiological evaluation. Dr. Paffrath performed an examination of appellant on April 2, 2008 and audiometric testing was conducted on his behalf on the same date. Testing at the frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed the following: right ear 25, 15, 20 and 65 decibels; left ear 10, 10, 10 and 60 decibels. Dr.
Paffrath determined that appellant sustained bilateral sensorineural hearing loss which was in part due to the noise exposure encountered in his federal employment. He recommended a hearing aide evaluation and placement in the right ear, hearing conservation techniques and yearly audiograms.
*2 On April 16, 2008 an Office medical adviser reviewed Dr. Paffrath's report and the audiometric test of April 2, 2008. Under the fifth edition of the American Medical

Association, Guides to the Evaluation of Permanent Impairment,[FN2] (A.M.A., Guides), he found that appellant had a bilateral sensorineural hearing loss with right monaural hearing loss of nine percent. The Office medical adviser noted that the condition found on examination on April 2, 2008 was aggravated by conditions of appellant's federal employment. He also recommended authorizing a trial of a hearing aid for the right ear.
In a decision dated April 14, 2008, the Office accepted appellant's claim for bilateral sensorineural hearing loss. On July 29, 2008 appellant filed a claim for a schedule award.
In a decision dated September 3, 2008, the Office granted appellant a schedule award for nine percent monaural hearing loss of the right ear. The period of the award was from
April 2 to May 4, 2008, representing 4.68 weeks of compensation.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees' Compensation Act[FN3] and its implementing regulations[FN4] set forth the number of weeks of compensation payable to employees sustaining permanent impairment from loss or loss of use, of scheduled members or functions of the body. However, the Act does not specify the manner in which the percentage of loss shall be determined. For consistent results and to ensure equal justice under the law to all claimants, good administrative practice necessitates the use of a single set of tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the appropriate standard for evaluating schedule losses.[FN5]
The Office evaluates industrial hearing loss in accordance with the standards contained in the A.M.A., Guides.[FN6] Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at each frequency are added up and averaged.[FN7] Then, the “fence” of 25 decibels is deducted because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in the ability to hear everyday speech under everyday conditions.[FN8] The remaining amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.[FN9] The binaural loss is determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied by five, then added to the greater loss and the total is divided by six to arrive at the amount of the binaural hearing loss.[FN10] The Board has concurred in the Office's adoption of this standard for evaluating hearing loss.[FN11]
ANALYSIS

The Office referred appellant to Dr. Paffrath for evaluation of his hearing loss. An Office medical adviser reviewed Dr. Paffrath's findings and agreed that appellant's hearing loss was aggravated by his employment. The medical adviser applied the Office's standardized procedures to the April 2, 2008 audiogram obtained by Dr. Paffrath. Testing for the right ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed decibels losses of 25, 15, 20 and 65, respectively. These decibels were totaled at 125 and were divided by 4 to obtain an average hearing loss at those cycles of 31.25 decibels. The average of 31.25 decibels was then reduced by 25 decibels (the first 25 decibels were discounted as noted above) to equal 6.25, which was multiplied by the established factor of 1.5 to compute a 9.38 percent monaural loss of hearing for the right ear. Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed decibels losses of 10, 10, 10 and 60 respectively. These decibels were totaled at 90 and were divided by
4 to obtain the average hearing loss at those cycles of 22.5 decibels. The average of 22.5 decibels was then reduced by 25 decibels (the first 25 decibels were discounted) to equal
0, which was multiplied by the established factor of 1.5 to compute a 0 percent hearing monaural loss for the left ear.
*3 The Board finds that the Office medical adviser applied the proper standards to the
April 2, 2008 audiogram and found that appellant has nine percent hearing loss in his right ear. Under the Office's standardized procedures, there is no evidence of greater impairment. On appeal appellant notes that his records showed loss of hearing in both ears prior to April 2, 2008. However, as noted, the extent of hearing loss to his left ear is not ratable for purposes of a schedule award.
CONCLUSION
The Board finds that the Office properly determined that appellant sustained nine percent monaural hearing loss of the right ear.
ORDER
IT IS HEREBY ORDERED THAT the September 3, 2008 decision of the Office of
Workers' Compensation Programs is affirmed.
FN1. On November 8, 2005 appellant filed a claim for hearing loss which was accepted by the Office; however, the loss was not ratable, claim number xxxxxx475.
FN2. A.M.A., Guides (5th ed. 2001).

FN3. 5 U.S.C. § 8107.
FN4. 20 C.F.R. § 10.404 (1999).
FN5. Id. See also Jacqueline S. Harris, 54 ECAB 139 (2002).
FN6. A.M.A., Guides 250 (5th ed. 2001).
FN7. Id.
FN8. Id.
FN9. Id.
FN10. Id.
FN11. Donald E. Stockstad, 53 ECAB 301 (2002), petition for recon. granted ( modifying prior decision), Docket No. 01-1570 (issued August 13, 2002).
2009 WL 2059012 (E.C.A.B.)
*1 B.C., Appellant and TENNESSEE VALLEY AUTHORITY, BROWNS FERRY
NUCLEAR POWER PLANT, Muscle Shoals, AL, Employer
Docket No. 08-2188
Case Submitted on the Record
Issued May 11, 2009

Appearances: Appellant, pro se, Office of Solicitor, for the Director
DECISION AND ORDER
Before: ALEC J. KOROMILAS, Chief Judge, DAVID S. GERSON, Judge, COLLEEN
DUFFY KIKO, Judge
JURISDICTION
On August 5, 2008 appellant filed a timely appeal from the Office of Workers'
Compensation Programs' merit decision dated February 8, 2008 denying modification of a November 2, 2007 merit decision denying his schedule award claim. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he sustained hearing loss in the performance of duty.
FACTUAL HISTORY
On May 18, 2006 appellant, a 70-year-old retired iron worker, filed an occupational disease claim alleging that exposure to noise during his federal employment caused bilateral hearing loss. He first realized that he had a hearing loss and that it was caused or aggravated by his federal employment on April 24, 2006 when he received the results of an audiogram. Appellant alleged that he began having problems hearing in both ears; had difficulty hearing the television and radio; and had to ask people to repeat words during conversations. He retired on October 4, 1991. The employing establishment controverted appellant's claim.
The Office initially denied appellant's claim by decision dated December 15, 2006 on the grounds that it was untimely filed. This case was before the Board on a prior appeal.[FN1] The Board by decision dated September 26, 2007 found the claim was

timely filed and remanded the case for further development because the evidence of record did not establish that appellant was aware or should reasonably have been aware of the causal relationship between his hearing loss and his federal employment until April
24, 2006. The facts as set forth in the Board's previous decisions and orders are hereby incorporated by reference.
Following the Board's remand of the case, the Office referred appellant, with a statement of accepted facts, to Dr. Howard M. Goldberg, a Board-certified otolaryngologist, for a second opinion. On October 16, 2007 Dr. Goldberg reported his findings upon examination. He noted that in appellant's medical records, the presence of a mild sensorineural component upon entry into the Tennessee Valley Authority that was preexisting and probably due to prior noise or exposure in the armed services or other exposure doing work as an iron worker. Dr. Goldberg diagnosed appellant with bilateral sensorineural hearing loss, worse on the right side, which he attributed to presbycusis rather than noise-induced hearing loss during employment.
By decision dated November 2, 2007, the Office denied appellant's claim as the evidence of record failed to demonstrate that the claimed medical condition was related to the established work-related events.
*2 Appellant requested reconsideration by request dated December 26, 2007. He submitted an April 24, 2006 report from an audiogram. Appellant submitted a report from an audiogram conducted on December 4, 2007. He also submitted a December 4, 2007 medical note, signed by Dr. F. Allen Long, a Board-certified otolaryngologist, who noted that appellant had a history of hearing loss over the past two years. Dr. Long recommended appellant consider hearing aids in view of his significant high frequency sensorineural hearing loss.
By decision dated January 16, 2008, the Office denied modification of its November 2,
2007 decision as the evidence of record failed to establish that appellant's hearing loss was caused by factors of appellant's employment.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees' Compensation Act[FN2] has the burden of establishing the essential elements of his or her claim including the fact that the individual is an employee of the United States within the meaning of the Act, that the claim was timely filed within the applicable time limitation period of the Act, that an injury was sustained in the performance of duty as alleged and that any disability and/or specific condition for which compensation is claimed are causally related to the employment injury.[FN3] These are the essential elements of each and every compensation claim regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.[FN4]

To establish a causal relationship between the condition and the employment, the employee must submit rationalized medical opinion evidence, based on a complete factual and medical background, supporting such a causal relationship.[FN5]
Rationalized medical opinion evidence is medical evidence which includes a physician(s) rationalized opinion on the issue of whether there is a causal relationship between the claimant's diagnosed condition and the implicated employment factors. The opinion of the physician must be based on a complete factual and medical background of the claimant, must be one of reasonable medical certainty, and must be supported by medical rationale explaining the nature of the relationship between the diagnosed condition and the specific employment factors identified by the claimant.[FN6] The weight of medical evidence is determined by its reliability, its probative value, its convincing quality, the care of analysis manifested and the medical rationale expressed in support of the physician's opinion.[FN7]
ANALYSIS
Appellant claimed he sustained bilateral hearing loss due to factors of employment on or before April 24, 2006. However, the evidence of record lacks any opinion on the causal relationship between any diagnosed hearing loss and appellant's federal employment.[FN8]
Dr. Long's medical report contains no diagnosis and no rationalized medical opinion concerning the causal relationship between appellant's alleged hearing loss and factors of his employment. Similarly, while Dr. Goldberg's October 16, 2007 medical report furnished a diagnosis of bilateral sensorineural hearing loss it did not identify any of the job duties appellant performed at the employing establishment which he believed were responsible for appellant's hearing loss or explain how he attributed appellant's hearing loss to presbycusis, gradual impairment of hearing as part of the aging process, rather than employment-related noise-induced hearing loss.
*3 The Board has consistently held that medical reports lacking a rationale on causal relationship have little probative value.[FN9] As noted above, a rationalized medical opinion is based on a complete factual and medical background and is supported by medical rationale.[FN10] As these reports lack a rationale on causal relationship, they lack probative value and are insufficient to establish that his alleged hearing loss is causally related to his federal employment.
The Office advised appellant that it was his responsibility to provide a comprehensive medical report which described his symptoms, test results, diagnosis, treatment and the doctor's opinion, with medical reasons, on the cause of his condition. Appellant failed to submit sufficient medical documentation in response to the Office's request. Because the

medical evidence of record does not explain how his employment duties caused or aggravated his alleged hearing loss, he has not established that he sustained a hearing loss in the performance of duty causally related to factors of employment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he sustained an injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers' Compensation Programs'
February 8, 2008 decision is affirmed.
FN1. Docket No. 07-1305 (issued September 26, 2007).
FN2. 5 U.S.C. §§ 8101-8193.
FN3. Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145
(1989).
FN4. Victor J. Woodhams, 41 ECAB 345 (1989).
FN5. Id.
FN6. Leslie C. Moore, 52 ECAB 132 (2000).
FN7. Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are entitled to little probative value); Jimmie H. Duckett, 52 ECAB
332 (2001).

FN8. The Board notes that appellant submitted a collection of audiograms conducted during and after his employment. However, the Board has held that if an audiogram is prepared by an audiologist it must be certified by a physician as being accurate before it can be used to determine the percentage of hearing loss. Joshua A. Holmes, 42 ECAB
231, 236 (1990). As none of the audiograms submitted by appellant appear to have been certified by a physician, they are of no probative value.
FN9. See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal relationship have little probative value).
FN10. Froilan Negron Marrero, 33 ECAB 796 (1982).
46 Am. Jur. Proof of Facts 2d 221
American Jurisprudence Proof of Facts 2d
Database updated July 2009
Categorical List of Articles
Forensic Audiology: Workers' Compensation For Noise-Induced Hearing Loss
40 AMJUR Proof of Facts 2d 263
Hearing Loss Due to Trauma July 2009
Employees' Compensation Appeals Board (E.C.A.B.)
U.S. Department of Labor
2009 WL 2059012 (E.C.A.B.)
END OF DOCUMENT
(c) 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
Employees' Compensation Appeals Board (E.C.A.B.)
U.S. Department of Labor
2009 WL 2602172 (E.C.A.B.)

END OF DOCUMENT
(c) 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
======================
46 Am. Jur. Proof of Facts 2d 221
American Jurisprudence Proof of Facts 2d
Database updated July 2009
Categorical List of Articles
Forensic Audiology: Workers' Compensation For Noise-Induced Hearing Loss[FN*]
Bruce Z. Rappaport, Ph.D.[FN**]
ARTICLE OUTLINE
I Background
§ 1 Introduction
§ 1.5 Hearing loss as protectible disability
§ 2 Legal areas in which services of forensic audiologist may be required
§ 3 Noise-induced hearing loss
§ 4 Effect of noise on the ear
§ 5 Audiological evaluation of noise-induced hearing loss, generally
§ 6 Basic evaluation—Pure-tone threshold tests
§ 7 Basic evaluation—Speech tests
§ 8 Site-of-lesion testing—Generally; tests of middle ear function
§ 9 Site-of-lesion testing—Tests of cochlear function
§ 10 Site-of-lesion testing—Tests of retrocochlear function
§ 11 Tests of nonorganic hearing loss—Generally

§ 12 Tests of nonorganic hearing loss—Identifying tests
§ 13 Tests of nonorganic hearing loss—Quantifying tests
§ 14 Analysis of the sound environment
§ 15 Compensability of work-related hearing impairment
§ 15.1 Compensability of work-related hearing impairment—Multiple employers
§ 15.3 Noise level regulations
§ 15.5 Defense considerations
II Elements of Proof
§ 16 Elements of proof checklist
§ 16.5 Burden of proving elements of claim
III Proof of Nature, Extent, and Work-related Cause of Hearing Loss
A Testimony of Forensic Audiologist
§ 17 Qualification of witness as expert
§ 18 Evaluation of claimant's hearing
§ 19 Results of evaluation—Validity
§ 20 Results of evaluation—Claimant's history
§ 21 Results of evaluation—Pure-tone air conduction threshold test
§ 22 Results of evaluation—Pure-tone bone conduction threshold test
§ 23 Results of evaluation—Spondee threshold test; word discrimination test
§ 24 Results of evaluation—Short increment sensitivity index; pure-tone threshold tone decay test
§ 25 Summary of testing; exhibits
§ 26 Opinion as to cause of hearing loss
INDEX
Absence of prior hearing dysfunction, § 20
Acoustic— impedance tests,, § 8 reflex tests,, §§ 8, 10, 12 trauma,, § 3
Air conduction threshold test, § 21
Alternate binaural loudness balance, § 9
American Speech-Language-Hearing Association, certification by, § 17
Anatomy of ear, § 4
Anechoic chamber, § 14
Audiogram, § 5
Audiological evaluation of hearing loss, § 5
Bekesy test, § 12
Bilateral hearing loss, existence and extent of, §§ 21– 23, 25, 26
Bone conduction threshold test, § 22
Cochlear function, tests of, § 9

Communication disorders specialist, § 1
Compensability of hearing impairment, § 15
Decibel as measurement of sound intensity, § 3
Decruitment, § 10
Delayed auditory feedback test, § 13
Direct evaluation of hearing loss, § 12
Ear— anatomy of,, § 4 cochlear function tests,, § 9 effect of noise on,, § 4 hair cells, effect of noise on,, § 4 middle ear function tests,, § 8 overstimulation of inner ear,, § 4 retrocochlear function tests,, § 10
Evoked potentials, § 10
Exhibits, use of, § 25
Forensic audiologist— qualification of, as expert witness,, § 17 use of,, §§ 1, 2
Frequency ranges, § 4
Gradual hearing loss, § 4
Hair cells, effect of noise on, § 4
Head injury as causing hearing loss, § 2
Hereditary deafness, absence of, § 26
Hysterical deafness. § 11
Impulse noise, § 3
Length of exposure to excessive noise, §§ 14, 20, 26
Middle ear function, tests of, § 8
Noise, definition of, § 3
Noisiness of work environment, §§ 20, 25
Nonorganic hearing loss, tests of, §§ 11– 13
Opinion as to cause of hearing loss, §§ 25, 26
OSHA noise standards, § 2
Overstimulation of inner ear structures, § 4
Presbycusis, §§ 2, 26
Protective devices, use of, §§ 20, 26
Psychogenic deafness, § 11

Pure-tone threshold tests, §§ 6, 21, 23, 24
Recruitment, § 10
Retrocochlear function, tests of, § 10
Short increment sensitivity index, §§ 9, 24
Site-of-lesion test, §§ 8– 10, 26
Sound environment, analysis of, § 14
Speech tests, §§ 7, 10
Spondee threshold test, §§ 7, 23
Stenger test, § 13
Steady-state noise, § 3
Swinging speech test, § 12
Symptoms of hearing impairment, §§ 20– 22, 25
Tone decay tests, §§ 10, 24
Tympanometry, § 8
Visual tests as to nonorganic hearing loss, § 12
Word discrimination tests, §§ 7, 10, 23
Topic of Article:
Whether a worker has suffered a loss of hearing that is the result of exposure to noise in the individual's work environment.
This fact question may arise in a workers' compensation proceeding.
I. Background
§ 1. Introduction
[Cumulative Supplement]
Audiology is a science concerned with the function of human hearing. It is generally considered to be an "allied health" discipline. Within the broader area of "communication disorders specialists," audiologists focus their practice on the normal and disordered aspects of audition. Those audiologists who work primarily as clinicians identify and

evaluate individuals with known or suspected loss of hearing and related deficits.
Physicians who specialize in the treatment of ear disease or neurological disorders frequently consult with audiologists. In these cases, audiologists may provide information which assists in the diagnosis of ear disease or in determining the site of lesions within the central nervous system.
When ear pathology cannot be treated by medical or surgical intervention, the audiologist develops and implements a comprehensive program of aural rehabilitation, including the selection of appropriate hearing aid(s), training in lip reading techniques, and family counseling. Audiologists may also direct activities of hearing conservation. This can include measurement and analysis of the sound environment, and reduction of noise levels through a variety of sound abatement techniques. When noise levels exceed a critical value and the source of noise cannot be modified to reduce the sound level, the audiologist may design a comprehensive program of hearing conservation. This program will likely include employee evaluation with periodic monitoring of hearing, issuance of appropriately fit ear protectors (ear plugs or muffs), and employee education. The concepts and practices of hearing conservation and noise abatement most often are associated with the work settings of heavy industry, but similar issues may arise in residential communities as well.
When any of these factors relates to issues that are of legal concern, the individual who focuses his attention on these matters may appropriately be termed a forensic audiologist.
The use of this title to describe an occupational endeavor had been quite recent. The history of the principles of forensic audiology can be traced to the emergence of the profession of audiology itself. During World War II, many servicemen experienced loss of hearing secondary to the acoustic trauma of weapons fire, and exposure to a variety of bacteria and fungi in the South Pacific. To meet the needs of the hearing-impaired veteran, individuals with training in speech therapy specialized in the more receptive aspects of human communication. Based on the studies of researchers in the fields of experimental psychology, psychoacoustics, and physics, and on the medical discipline of otology, audiologists developed techniques for identifying and evaluating loss of hearing.
For a variety of reasons, some veterans attempted to exaggerate their hearing losses.
Because this occurred in a significant number of cases, these pioneering audiologists developed techniques for identifying and quantifying true, organic hearing loss which might be presented along with functional or nonorganic loss.
Academic preparation in audiology today includes anatomy and physiology of the ear and the central nervous system, acoustics, electronics, clinical audiology, and the normal and disordered aspects of human communication. Forensic audiologists may focus their academic preparation on audiologic diagnosis, sound measurement and analysis, and those areas of the law that interface with the profession of audiology.
CUMULATIVE SUPPLEMENT
Editor's Comment: See also Citizen Suits Under the Noise Control Act, 58 Am. Jur. Proof of Facts 3d 315; Proof of Injury or Damage Caused by Sonic Boom, 85 Am. Jur. Proof of
Facts 3d 307.

Cases:
Concert promoter and owner of theater in which band's drummer allegedly incurred damage to his hearing as result of faulty sound system was not subject to strict liability for any defect in system, as it was not seller of system, nor was it liable for any negligence of sound system operator, independent contractor. Drummer claimed that, after he signaled to sound crew that he needed more volume from speaker near his head, volume from speaker shot upward, knocking drummer from his stool and causing hearing loss and permanent ear damage. Summary judgment for promoter was affirmed because drummer at first failed to produce any evidence showing that sound blast had occurred and produced affidavits from other band members to that effect only on motion to reconsider. Promoter was not subject to negligence liability because, even assuming that it had duty to provide properly functioning sound system, drummer had failed to offer any evidence that system had malfunctioned. Nor was it subject to strict liability, as it did not manufacture or sell sound systems and was lessee, rather than lessor, of such systems.
Green v Whiteco Indus. (1994, CA7 Ind) 17 F3d 199, CCH Prod Liab Rep ¶13783.
Navy's environmental impact statement (EIS), prepared in support of its decision to relocate aircraft to particular naval air station as part of larger base closure exercise, was not required to consider mitigation costs due to noise impacts where such costs were either speculative of outside of its control. Defense Base Closure and Realignment Act of
1990, §§ 2901 to 2910, 10 U.S.C.A. § 2687 note; National Environmental Policy Act of
1969, §§ 2 et seq., 42 U.S.C.A. §§ 4321 et seq. Citizens Concerned About Jet Noise, Inc. v. Dalton, 48 F. Supp. 2d 582 (E.D. Va. 1999); West's Key Number Digest, Health and
Environment 25.10(6.4).
Supervisor with boat horn: Supervisor was acting within scope of his employment when he sounded boat horn, and thus, supervisor was entitled to workers' compensation immunity in negligence action brought by employee, who alleged that she suffered serious hearing loss and permanent nerve damage as result of supervisor's sounding horn within one foot of employee; use of boat horns in workplace was part of overall plan to motivate employees and to provide for a more fun and exciting environment in the office, and there was no evidence indicating that supervisor sounded the horn while knowing that employee was nearby and could be injured from the noise. KRS 342.690. Haines v.
BellSouth Telecommunications, Inc., 133 S.W.3d 497 (Ky. Ct. App. 2004); West's Key
Number Digest, Evidence 2168.
Tinnitus, often described as "ringing in the ears," qualifies as a compensable partial disability under the general terms of the workers' compensation laws, irrespective of whether the employee also suffers from an accompanying hearing loss compensable under the Occupational Hearing Loss Act, so long as tinnitus is (1) due in a material degree to exposure to harmful workplace noise, (2) materially impairs employee's working ability or is otherwise serious in extent, and (3) is corroborated by objective medical indicia despite the predominantly-subjective character of the affliction. N.J.S.A.
34:15-35.10 to 34:15-35.22, 34:15-36. Schorpp-Replogle v. New Jersey Mfrs. Ins. Co.,
395 N.J. Super. 277, 928 A.2d 885 (App. Div. 2007); West's Key Number Digest,
Workers' Compensation 902.

Firefighters were not entitled to bring a class action based on alleged hearing loss suffered as a result of allegedly defective sirens since, although the firefighters were all exposed to the fire siren, the remaining questions of fact and law were unique to each person's circumstances, i.e., the type of hearing loss, the cause of the hearing loss, other contributing factors such as age, heredity and disease, and individual circumstances such as exposure to explosions or weapon fire and diseases such as Lyme disease and syphilis.
Hanson v Federal Signal Corp. (1996, Pa Super) 679 A2d 785.
Where a retired railroad worker alleged that a physician failed to inform him of his hearing damage and that it was caused or aggravated by his exposure to the high noise level at the railroad yards, and this failure caused him to continue to work in the dangerous environment and to suffer further damage to his hearing, summary judgment was properly granted in favor of the physician on the ground that the suit was barred by the 2-year statute of limitations because more than 16 years had passed since the examination, the records of the physician's examination indicated that he did not make the same diagnosis as the worker's physician did in 1989, and more than 2 years had passed since the 1989 examination, the date that the worker was aware of his alleged injury. Oden v Marrs (1994, Tex App Texarkana) 880 SW2d 451.
[Top of Section]
[END OF SUPPLEMENT]
§ 1.5. Hearing loss as protectible disability
[Cumulative Supplement]
CUMULATIVE SUPPLEMENT
Cases:
Tinnitus: School district reasonably accommodated employee suffering from tinnitus, as required by ADA, even though transfer constituted demotion and there were other, lateral transfers available which would have accommodated his needs; there was no evidence district discriminated against employee on basis of his disability when it made transfer decision. Americans with Disabilities Act of 1990, § 102(a), 42 U.S.C.A. § 12112(a).
Allen v. Rapides Parish School Bd., 204 F.3d 619, 142 Ed. Law Rep. 44 (5th Cir. 2000);
West's Key Number Digest, Civil Rights 173.1.
Where nurse requested transfer to another department after he determined during his probationary period that he was not able to properly perform his duties, in part because of his hearing disability, but hospital policy prohibited provisional employees from being

transferred, hospital satisfied its duty under ADA (42 USCA §§ 12101 et seq.) to accommodate employee's disability when it offered him options of receiving further training or resigning and reapplying for another position in hospital, and hospital was not required to change its existing policies to accommodate nurse, since reasonable accommodation did not require hospital to provide nurse with exact accommodation he requested. Schmidt v Methodist Hosp. (1996, CA7 Ind) 89 F3d 342, 17 ADD 988, 5 AD
Cas 1340.
Employer that linked hearing with safe driving bore burden of proving such nexus as part of its business necessity defense to ADA claim challenging its qualification standard that all of its package-car drivers pass Department of Transportation (DOT) hearing standard, while plaintiffs bore ultimate burden of showing that, despite their hearing disabilities, they were qualified to perform essential function of safely driving package car; in doing so, plaintiffs did not have to disprove validity of hearing standard, but had to demonstrate their safe driving ability vis-a-vis package cars. Americans with Disabilities Act of 1990,
§§ 101(8), 102(a), 42 U.S.C.A. §§ 12111(8), 12112(a); 29 C.F.R. § 1630.2(n)(1). Bates v.
United Parcel Service, Inc., 511 F.3d 974, 20 A.D. Cas. (BNA) 1 (9th Cir. 2007); West's
Key Number Digest, Civil Rights 1540.
Localizing sound was not major life activity with respect to which United States
Marshals Service (USMS) could regard court security officer, who had hearing loss in one ear, as disabled, as required to support her Rehabilitation Act claim arising out of her termination; ability to localize sound was not comparable to "caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working" nor was ability to localize sound itself central to an individual's life.
Rehabilitation Act of 1973, §§ 2 et seq., 29 U.S.C.A. §§ 701 et seq. Walton v. U.S.
Marshals Service, 492 F.3d 998 (9th Cir. 2007), petition for cert. filed (U.S. Sept. 24,
2007); West's Key Number Digest, Civil Rights 1218(2).
Applicant with Meniere's disease, associated hearing loss, ringing in the ears, and vertigo failed to establish that he was disabled or perceived as disabled by prospective employer, a federal agency, as required to establish prima facie claim under the Rehabilitation Act, in connection with employer's failure to hire him; although employer perceived applicant as a safety hazard in performing certain tasks required for the position he applied for, such as working in stairwells, on ladders, and out on ledges, and applicant's physicians opined that his symptoms would prevent him from performing job he applied for, the employer's perception and physicians' restrictions were confined to the specific job for which he applied, and employer invited applicant to apply for other jobs. Rehabilitation
Act of 1973, § 7(9)(B), amended, 29 U.S.C.A. § 705(9)(B); 29 C.F.R. § 1614.203(b).
McGeshick v. Principi, 357 F.3d 1146, 15 A.D. Cas. (BNA) 225 (10th Cir. 2004); West's
Key Number Digest, Evidence 1218(3).
Employee with hearing loss failed to state claim under § 504 (29 USCA § 794) by alleging that he was discriminated against on basis of his disability when on several occasions he was criticized by his supervisor for talking too loudly, since employee could not establish that he was excluded from participation in covered program because of his disability, as he was neither terminated nor denied any benefits for talking loudly or because of his hearing impairment. Shabat v Blue Cross Blue Shield (1996, WD NY) 925
F Supp 977, 16 ADD 1021.

[Top of Section]
[END OF SUPPLEMENT]
§ 2. Legal areas in which services of forensic audiologist may be required
[Cumulative Supplement]
There are four primary legal areas in which the services of a forensic audiologist may be called upon. They are (1) workers' compensation, (2) personal injury, (3) land-use planning, and (4) criminal law. While the focus of this discussion is workers' compensation, a brief overview of all four areas will provide a glimpse of the scope of practice.
Workers' Compensation
For over 30 years various states have recognized the deleterious effects of noise on hearing by compensating those individuals who have had many years of exposure to high intensity sound.[FN1] In 1969 the federal government acknowledged the hazards of noise in the workplace by requiring government contractors to reduce noise to their employees to a presumably safe level.[FN2]
Forensic audiologists are involved in several aspects of workers' compensation claims for hearing loss and related symptoms of ear damage. First, they are responsible for the accurate assessment of hearing sensitivity and auditory processing. Because of the possible inducement of monetary gain, it is important for the forensic audiologist to ensure that examination results reflect true, organic hearing ability.
Second, it must be determined how much of a claimant's work environment is responsible for an injury relative to other factors. To accomplish this, the forensic audiologist must make a detailed analysis of sound in the work environment. This can include measurement of the sound source or sources, assessment of average exposure, and the degree (if any) to which hearing conservation practices influence the level of exposure.
Noise exposure on the job must then be weighed against the possibly injurious effects of other factors such as non-work-related noise exposure, traumatic injury, or ear disease.
This requires a detailed evaluation of the claimant's social, occupational, and medical history.
Finally, the element of hearing change as a result of aging must be considered. While age-related hearing loss (presbycusis) is commonly considered an immutable fact, societal influences weigh heavily. One must rely on averaged data as well as special circumstances to quantify this concept.

Personal Injury
Most accidents that result in a loss of hearing are associated with head trauma. Head injuries may produce basal skull fractures or fractures of the temporal bone that course through the inner ear, causing permanent and serious loss of hearing. These types of injuries are commonly the result of a motor vehicle accident or fall. Less frequently, traumatic injury to the ear results from an acoustic event such as a firecracker blast, rifle or handgun shot at a target range, or other brief intense noise exposure. Occasionally, hearing loss may occur from hearing aid use.[FN3]
When personal injury includes loss of hearing, the forensic audiologist's responsibility is the accurate evaluation of hearing loss, determination of the site of injury within the auditory system, and assistance in determining the appropriate form of treatment. Based on these findings, the forensic audiologist then formulates an opinion regarding the impact of hearing loss on communication function.
Another factor in cases of personal injury relates not to hearing loss but rather to the detection of a certain sound under a specific set of conditions. A common case of this type involves a motor vehicle-railroad train collision. When a train and an automobile collide at an unguarded railroad crossing, an important question is whether the driver of the car heard the warning signal of the train.[FN4] Similarly, in accidents involving emergency vehicles, was the driver of the other car capable of hearing the siren?
In these instances the forensic audiologist must make a detailed analysis of the acoustic environment surrounding the driver of the passenger vehicle at the time of the accident, and of the hearing of the driver. Based on the analysis, a determination must then be made as to the probability that the driver was able to hear the warning signal and thus avoid the collision.
Land-Use Planning
Individuals and community associations bring suit against industry and government because of noise pollution. When noise exceeds a critical intensity, physiological effects may include loss of hearing, increase in blood pressure, and alteration of sleep habits.
Additionally, at lower levels, noise may still interfere with communication and produce psychological annoyance and family stress. Forensic audiologists can be of assistance to attorneys, legislators, and land-use planners in the development and interpretation of laws regarding community noise control.
Criminal Law
In criminal and other court proceedings it may be important to determine whether a defendant or witness was capable of accurately identifying acoustic information. As with personal injury cases, the forensic audiologist must make a physical analysis of both the sound environment in question and the hearing of the person giving testimony. Based on the data, an opinion can be proffered as to whether the sound stimulus could be correctly

identified. For example, could a witness in one room of a house hear a conversation in another room?
CUMULATIVE SUPPLEMENT
Cases:
See RCI SE Services Division/Aetna Casualty & Surety v Sisson (1988, Fla App D1) 527
So 2d 824, 13 FLW 458, amd, on reh, in part, reh den, in part (Fla App D1) 13 FLW
1584, rereported (Fla App D1) 13 FLW 1631, in which an order awarding workers' compensation benefits to the employee of a steel fabricating company for hearing loss due to exposure to noise on the job was reversed. The court held that the testimony of a licensed hearing aid audiologist that the employee's severe bilateral sensorineural hearing loss was aggravated by exposure to noise on the job had been improperly admitted, since the audiologist was not qualified as an expert to give such an opinion. The witness was licensed merely to measure the degree of hearing loss and to dispense hearing aids, and was not competent to determine the cause of any hearing loss.
[Top of Section]
[END OF SUPPLEMENT]
§ 3. Noise-induced hearing loss
[Cumulative Supplement]
Noise may be defined as any unwanted auditory stimulus. This definition implies that the type of auditory stimulus producing a hearing loss must be noxious, and this is far from reality. In an industrialized society, we are surrounded by man-made sounds from the moment we enter the world of the living until the moment we depart. While the primary emphasis in this article is on noise in the workplace, it is important to realize that sound is pervasive in our environment. We must attempt to evaluate all sources of sound to which people are exposed and which are of sufficient intensity to create loss of hearing.
Noise-induced hearing loss may be defined as hearing loss that occurs as the result of exposure to sound of sufficient duration and intensity to produce a decrease in auditory function. For our purposes we will limit this definition to noise which is present in the workplace. The term sociocusis has been reserved for describing loss of hearing stemming from noise away from work. These nonindustrial noises may include those from power lawnmowers, hobby tools such as table saws or lathes, motorcycles, and amplified music. Nosoacusis refers to hearing loss that is not noise related. This may

include such factors as disease, head trauma, and exposure to industrial toxins. Finally, presbycusis is hearing loss as a result of age. In most instances, presbycusis is the label given to a hearing loss in an elderly adult when both noise-induced and nosoacusic hearing loss have been ruled out. It is extremely difficult, if not impossible, to differentiate between the influences of aging and society as to their effects on our hearing.
Noise-induced hearing loss can be divided into two different types: acoustic trauma and steady-state noise.
Acoustic Trauma
Acoustic trauma is a noise-induced hearing loss that results from exposure to a single sound of extreme intensity and short duration. Of the two types of noise-induced hearing loss, acoustic trauma is less common. It is more frequently observed in the military than elsewhere, and it happens when an individual is in the vicinity of weapon fire of some sort. It may also occur in an industrial setting from machines such as punch presses or pile drivers. The types of noises produced by these sources are referred to as impulse noises. By definition, an impulse noise is one which is shorter in duration than one second, and greater in intensity than 90 decibels (dB).[FN5] The following table shows several common noise sources and their intensities: dB Level Noise Source
0 Hearing threshold
10
20
30 Soft whisper
40
50 Average residential area with light traffic
60 Speech, as heard from a distance of one foot
70
80
90 Boiler room; printing press
100 Textile weaving; power mower; pneumatic hammer
110 Riveting machine; snowmobile; chain saw
120
130 Jet takeoff
Steady-State Noise
Impulse noise typically produces a sudden and dramatic change in auditory function. The more common type of noise-induced hearing loss occurs with a gradual, insidious onset and progression. This second type of noise is generally termed steady-state noise. In its

classic condition, steady-state noise is on continuously, without interruption, and without alteration in frequency or intensity. In the reality of the workplace this constancy does not exist. However, as it is approximated, steady-state noise differentiates itself from impulse noise by its effects on the ear.
CUMULATIVE SUPPLEMENT
Cases:
Expert testimony was not required to establish element of railroad worker's FELA claim that his hearing loss was caused by his exposure to sound of train horns; connection between very loud sounds and hearing loss was generally understood. Federal Employers'
Liability Act, § 1, 45 U.S.C.A. § 51; Fed.Rules Evid.Rule 701, 28 U.S.C.A. Tufariello v.
Long Island R. Co., 458 F.3d 80 (2d Cir. 2006); West's Key Number Digest, Labor and
Employment 2881.
Substantial evidence supported ALJ's finding that worker who suffered hearing loss was not exposed to injurious stimuli while he worked as stevedore at last employer and that prior employer, where he was employed as welder and crane operator and continually exposed 5–7 days a week to injurious noise, was responsible for compensation. Avondale
Industries, Inc. v Director, Office of Workers' Compensation Programs (1992, CA5) 977
F2d 186.
Under the workers' compensation statutes, there are two distinct types of industrial injuries. Pursuant to Calif. Lab. Code, § 3208.1, a compensable injury can be either
"specific" or "cumulative." A cumulative injury is one that results from repetitive events, occurring during each day's work, which in combination cause any disability or need for medical treatment. A worker suffering from a cumulative injury may invoke the rights and benefits provided under the workers' compensation laws when the cumulative effects of the repetitive events result in a compensable injury, i.e., one resulting in lost wages or the need for medical treatment. In any given situation, there can be more than one injury, either specific or cumulative or a combination of both, arising from the same event or from separate events. The number and nature of the injuries suffered are questions of fact for the workers' compensation judge. In addition, one exposure may result in two distinct injuries, posing another question of fact. The nature and the number of injuries suffered are determined by the events leading to the injury, the medical history of the claimant, and the medical testimony received. Western Growers Ins. Co. v Workers' Comp.
Appeals Bd. (1993, 5th Dist) 16 Cal App 4th 227, 20 Cal Rptr 2d 26, 93 CDOS 4284, 93
Daily Journal DAR 7276.
Substantial evidence supported the determination that the claimant suffered a complete loss of hearing in his right ear for all intents and purposes where the claimant testified that he had difficulty carrying on conversations without eye contact, that he could not watch television at a volume that was comfortable for other persons and that he had trouble hearing when background noise was present. Aristech Chem. Corp. v Workmen's
Compensation Appeal Bd. (Keefer) (1995, Pa Cmwlth Ct) 664 A2d 686.
In Pare v Workmen's Compensation Appeal Bd. (Fred S. James & Co.) (1986) 97 Pa
Cmwlth 435, 509 A2d 1361, app den 513 Pa 645, 521 A2d 935 and app den 513 Pa 645,

521 A2d 935, the court reversed a denial of benefits for hearing loss to a prison employee by the compensation appeal board. The court held that there was sufficient evidence to support the referee's decision awarding benefits, and that denial of benefits by the board was error. Evidence had been presented to the referee that there was loud banging of metal doors, noise from a loud public address system, and that the employee attended weekly firearms firing practice sessions. Other employees testified that the noise was excessive, and one employee stated that her head would ring after leaving the workplace.
[Top of Section]
[END OF SUPPLEMENT]
§ 4. Effect of noise on the ear
[Cumulative Supplement]
A detailed description of the anatomic and physiologic effects of noise on the human ear is not within the scope of this article. It is necessary, though, to have a limited understanding of these processes to comprehend the nature of noise-induced hearing loss, the effects of various types of noise, and the result, in terms of hearing impairment and handicap.
The ear is generally divided into three anatomic sections, the outer, middle, and inner ears (see Plate 1). The primary purpose of the outer ear is to collect the vibrations of air molecules that are produced by the source of some sound. The middle ear then transduces the sound from a vibration in the air to a vibration of structures within the ear. The middle ear also functions as an amplifier to increase the amount of sound energy which is available to the ear. This is necessary as more than 90 percent of the sound energy captured in the outer ear is reflected back to the air by the eardrum (tympanic membrane).
Finally, the mechanical vibrations of the middle ear are transduced into electrochemical impulses by the outer and inner rows of the inner ear or cochlea (see Plate 2), and the impulses are transmitted to the auditory center of the brain, where they are perceived as sound.[FN6]
With both impulse and steady-state noise (see § 3), the most common site of damage to the ear is destruction of the hair cells and their supporting structures within the cochlea.
Impulse noises of extreme intensity can also affect the structures of the middle ear. The physiological effect of impulse noise on the inner ear is to virtually tear loose the hair cells from their supporting structures. The hearing loss that results from impulse-type noise-induced damage is immediate. The gradual hearing loss that occurs with steadystate noise exposure is due to a prolonged "overstimulation" of the structures of the inner ear, which results in a metabolic dysfunction and a degeneration of the hair cells.
Figure ? Plate 2. (A) Cross section of cochlea (B) Organ of Corti

Plate 1. External, middle, and inner ear.
Image 1 in PDF format. Not available for Offline Print
Plate 2. (A) Cross section of cochlea (B) Organ of Corti
Image 2 in PDF format. Not available for Offline Print
The most common way of describing the effect of any type of noise exposure on hearing ability is by measurement of auditory threshold. This is the sensitivity of the ear to sound stimuli. In cases of workers' compensation the stimuli used to measure and define auditory threshold are called pure-tones. Pure-tones are sounds of a single frequency.
Particularly with steady-state exposure, noise-induced hearing loss manifests itself initially by a shift in hearing sensitivity in the 3,000 to 6,000 hertz (Hz) range.[FN7]
Hearing loss in this frequency range seems to be somewhat independent of the frequency spectrum of the noise source that produces the loss.
Why the 3 to 6 kHz range is particularly vulnerable is not entirely clear. One possibility is that the base of the inner ear, where high frequency sounds are processed, is more fragile than other areas of the cochlea. Secondly, the ear canal seems to resonate best at around 3 kHz, and therefore sounds in this frequency region are transmitted to the inner ear with greater efficiency than other frequencies. Whatever the cause, we know by observation that noise-induced hearing loss first appears in the 3 to 6 kHz range, and that the severity of the loss grows rapidly in this frequency region for about the first 10 years.
Further exposures tend to produce losses in frequencies both above and below this most vulnerable range. Exposures beyond the 10-year period tend to produce slower changes in auditory threshold (see Figure 1).
Figure 1. Progression of noise induced hearing loss.
Image 3 in PDF format. Not available for Offline Print
CUMULATIVE SUPPLEMENT
Cases:

High and low frequency hearing loss: High frequency hearing loss and low frequency hearing loss were not separate diseases for purposes of workers' compensation law, and thus work-related noise exposure was not major contributing cause of claimant's overall hearing loss, despite physician's opinion that, even if claimant did not have non-work related low frequency hearing loss, he would still require hearing aid for high frequency hearing loss caused by noise, where claimant suffered 21.28 percent hearing loss caused by non-work related middle ear pathology, and 7.23 percent high frequency hearing loss caused by work exposure. ORS 656.802(1)(a), (2)(a). Lecangdam v. SAIF Corp., 185 Or.
App. 276, 59 P.3d 528 (2002); West's Key Number Digest, Workers' Compensation 589.
[Top of Section]
[END OF SUPPLEMENT]
§ 5. Audiological evaluation of noise-induced hearing loss, generally
[Cumulative Supplement]
The correspondence between anatomic damage to the inner ear from exposure to noise and the resulting hearing loss is not always perfectly correlated. A variety of animal studies and a select number of human studies[FN8] have shown that major degeneration in two different individuals may produce vastly different findings of threshold sensitivity for pure-tone stimuli. Part of the basis of this observation may be that pure-tone threshold sensitivity is only one measure of auditory function, and a rudimentary one at that. While pure-tone thresholds are the major criteria for most cases of workers' compensation, the forensic audiologist should perform a battery of evaluations in cases of suspected noiseinduced hearing loss. Further, the attorney should be familiar with these examinations and the implications of their findings.
Auditory evaluations must be conducted in well-controlled, acoustically isolated, sound attenuating rooms. Assessments can be classified as basic evaluations and site-of-lesion tests. In the basic evaluation, emphasis is placed on assessment of the sensory threshold for various stimuli, with minimal attention to the more sophisticated areas of the auditory processing of complex signals. The basic evaluation is intended to provide an overall picture of hearing sensitivity, a cursory evaluation of the origin of impairment within the auditory system, and an estimate of functional ability to communicate. An audiogram is a graphic representation of these basic data (for an example of an audiogram, see Figure 2 at the end of the next section).
CUMULATIVE SUPPLEMENT

Cases:
Testimony accepted by the workers' compensation judge (WCJ) as credible constituted substantial competent evidence supporting WCJ's finding that claimant had a 34.7 percent work-related binaural hearing loss; otolaryngologist determined that claimant suffered from a 20.3 percent binaural hearing loss, and he opined that the most significant cause of claimant's hearing loss was his industrial noise exposure, and another otolaryngologist opined that claimant had 39.375 percent hearing impairment on right,
33.75 percent hearing impairment on left and a 34.7 percent binaural impairment, and discrepancy in results of audiograms performed by otolaryngologists did not affect determination of permanency of claimant's hearing loss. 77 P.S. § 513. Helvetia Coal Co. v. W.C.A.B. (Learn), 913 A.2d 326 (Pa. Commw. Ct. 2006); West's Key Number Digest,
Workers' Compensation 1667.
In Hill v Workmen's Compensation Appeal Bd. (Latrobe Steel Corp.) (1988) 117 Pa
Cmwlth 251, 543 A2d 232, the court reversed a denial of benefits to an employee who had suffered hearing loss while working as a furnace operator for a steel company. The court found that the testimony of a medical audiologist supported the required statutory finding that the employee had suffered "complete loss of hearing for all practical intents and purposes". Although the witness did not use that specific language, his testimony that the employee had suffered a moderate to severe bilaterally symmetrical sensory neural hearing loss, and that the hearing loss was a "handicapping loss" in which speech would be fainter, and in which understanding what was said would also be difficult, was sufficient to meet the statutory standard.
[Top of Section]
[END OF SUPPLEMENT]
§ 6. Basic evaluation—Pure-tone threshold tests
[Cumulative Supplement]
The basic evaluation can be divided into pure-tone threshold tests, discussed in this section, and speech tests, discussed in § 7.
The pure-tone air conduction test is a basic hearing test that evaluates the entire auditory system as a whole. It measures sensory threshold for sound intensity, across the frequency spectrum. Although the normal human ear is capable of hearing sounds between 20 and 20,000 Hz, a typical clinical evaluation is restricted to the 125 to 8,000
Hz range. This restriction occurs because the indicated range is most important in terms of human communication.

The test is carried out by placing standardized calibrated earphone transducers over the outer ear, presenting a tone of single frequency (thus pure-tone) at a specified intensity, and asking the individual to indicate whether the tone is present or absent. Based on the response, the tone is altered in intensity (usually in increments of 5 dB) until the threshold for that stimulus has been identified. Threshold is defined as the lowest intensity level at which a 50 percent correct response is obtained. Responses are considered normal when the intensity of the pure-tone threshold does not exceed 25 dB.
A mild loss of hearing is between 30 and 50 dB; moderate loss is 55 to 70 dB; severe loss is 75 to 90 dB; and profound loss is above 90 dB.
The pure-tone bone conduction threshold test is a primary diagnostic test. The test procedure is essentially the same as measuring threshold by air conduction. However, instead of using an earphone as a transducer, a calibrated oscillator is placed on the mastoid prominence of the temporal bone, and the skull is vibrated. With this method of transduction the sensory receptor of the auditory system (the cochlea) is stimulated directly. Eliminated from the measurement are the structures of the outer and middle ear.
If, for example, one has fluid in the middle ear space, as in otitis media, the bone conduction threshold would be more sensitive than that obtained by air conduction (see
Figure 2).
Figure 2. Audiogram indicating air and bone conduction thresholds for right ear. Note that for this person the bone conduction threshold (indicated by >) is more sensitive than the air conduction threshold (indicated by ◦).
Image 4 in PDF format. Not available for Offline Print
CUMULATIVE SUPPLEMENT
Cases:
Workers' compensation claimant, whose hearing was damaged as a result of his occupation, was not entitled to medical expenses, including hearing aids, even though claimant met the general statutory criteria for occupational deafness due to loss of hearing within the frequencies of the 2000 and 3000 hertz range; in order to receive medical benefits, claimant must have met the threshold hearing loss requirements for compensation in statute that defined the technical parameters of hearing loss, which required an average hearing loss of more than 25 decibels in the named frequencies.
West's Ann.Md.Code, Labor and Employment, §§ 9-505, 9-650, 9-660. Green v. Carr
Lowery Glass Co., Inc., 398 Md. 512, 921 A.2d 235 (2007); West's Key Number Digest,
Workers' Compensation 968.
Claimant's tinnitus was a compensable partial disability under the general terms of the workers' compensation laws, even though she did not have a sensorineural loss of hearing below the decibel levels specified as disabling by the Occupational Hearing Loss Act; board-certified otolaryngologist opined that, within a reasonable degree of medical

probability, claimant's tinnitus was caused by her exposure to noise at her workplace, claimant's tinnitus interfered with her ability to work, specifically causing her to have difficulty speaking with employer's customers over the phone, and caused her to keep a ticking clock nearby to mask the ringing sounds, and "tone-matching test" revealed that ringing in claimant's ears was most closely replicated at a frequency of 4,000 Hz, the range at which her hearing loss was most pronounced, and the range that was usually affected by noise exposure. N.J.S.A. 34:15-35.10 to 34:15-35.22, 34:15-36. Schorpp-
Replogle v. New Jersey Mfrs. Ins. Co., 395 N.J. Super. 277, 928 A.2d 885 (App. Div.
2007); West's Key Number Digest, Workers' Compensation 902.
[Top of Section]
[END OF SUPPLEMENT]
§ 7. Basic evaluation—Speech tests
As with the pure-tone air conduction threshold test, the spondee threshold is a measure obtained through earphones, and it evaluates the complete auditory apparatus. The stimulus in this case is a list of common two-syllable words that are spoken with equal emphasis on both syllables (for example, "baseball," "hotdog"). This test provides internal consistency to the basic evaluation and is useful to the forensic audiologist. It is expected that threshold measures obtained with these speech stimuli will approximate the pure-tone air conduction thresholds in the frequency range where most speech sounds occur (300 to 3,000 Hz). If this consistency is lacking, nonorganic (feigned or exaggerated) hearing loss may be suspected.
The word discrimination test is the only supra-threshold measure which is part of a routine, basic evaluation. It provides the audiologist with a gross estimate of functional hearing ability. The stimulus in this test is a list of one-syllable words, usually 25 or 50 words in length. This list is said to be phonetically balanced, which means that each speech sound that forms the words of the list appears with a frequency of occurrence proportional to its appearance in conversational speech. The words may be presented at several intensity levels, including one that approximates conversational speech and others that then produce a function demonstrating how word discrimination varies with intensity.
§ 8. Site-of-lesion testing—Generally; tests of middle ear function
After the basic evaluation is completed, the audiologist can make global statements regarding hearing sensitivity, status of the middle ear mechanism, and the ability of the individual to hear conversational speech under quiet listening conditions. The next task in diagnostic evaluation is to more accurately define the locus of impairment and/or etiology
(cause or origin of a disease) within the auditory pathways. Audiologists call these site-

of-lesion tests. These tests can be grouped into those that independently examine the (1) middle ear mechanism, (2) cochlea, (3) auditory nerve, (4) brainstem, and (5) cortex.
Unlike the procedures used in the basic auditory evaluation (see §§ 6 and 7), those used to measure middle ear operation do not rely on a behavioral response from the individual under test. Activity of the tympanic membrane ossicles, middle ear muscles, eustachian tube, and middle ear cavity can be monitored by measuring the acoustic impedance of the ear under various static and dynamic conditions.
To perform tests of acoustic impedance, a probe is inserted in the external auditory canal with a rubber cuff to create an airtight seal. The probe contains a manometer to increase or decrease air pressure within the canal, a sound channel for transmitting an acoustic signal to the ear, and a microphone for receiving sound energy that is reflected off the tympanic membrane. By measuring the sound energy in the ear canal resulting from the transmission of a specified signal produced by the probe, an indirect measure can be made of the flow of energy through the ear.
A tympanogram is a graph of the impedance of the middle ear for a specified signal under various quantities of positive and negative-induced pressure in the external ear canal.
Middle ear disorders differentiate themselves by the shape of the tympanogram that they create (see Figure 3).
With respect to what are called the acoustic reflexes, it is known that the middle ear muscles (tensor tympani, stapedius), particularly the stapedius in man, contract in response to sound at certain levels above the sensory threshold. The reflex is bilateral, and therefore acoustic stimulation of the reflex unilaterally results in bilateral activation
(that is, if one ear is stimulated, the reflex will occur in both ears). Contraction of the middle ear muscles produces a stiffness of the middle ear transmission system and therefore alters the acoustic impedance. Disorders of the middle ear increase the decibel level necessary to produce an acoustic reflex. Often they increase the level to the extent that the reflex cannot be measured at all. The combination of tympanometry and acoustic reflex measures is a powerful tool in the diagnosis of middle ear disorders.
Figure 3. Tympanograms of representative middle ear conditions.
Image 5 in PDF format. Not available for Offline Print
§ 9. Site-of-lesion testing—Tests of cochlear function
The cochlea is the sensory receptor of the ear. Vibratory energy is transduced into electrochemical energy and transmitted to the auditory nerve. When the stereocilia (hair cells) of the cochlea have been damaged by disease, drugs, or noise, the hallmark of auditory symptoms is known as recruitment. In this case the term means an abnormally low tolerance for acoustic stimuli above the sensory threshold. Most diagnostic tests that are sensitive to lesions of the cochlea directly or indirectly evaluate the recruitment phenomenon.

The alternate binaural loudness balance (ABLB) is a direct test of recruitment. It is useful in cases of unilateral hearing loss or asymmetric loss where the threshold for a given pure-tone stimulus is normal in one ear and impaired in the other ear.[FN9]
The test requires the patient to make loudness judgments about a tone which alternates from one earphone to the other, pulsing between normal and abnormal ears. The tone is presented to the normal ear at 20 dB above threshold and is adjusted in the abnormal ear until it is judged (by the listener) to be equally loud. The two levels are noted, the stimulus in the good ear is increased again by 20 dB, and the process is repeated. When normal cochlear function is present, a 20 dB increase in one ear results in a 20 dB increase in the other ear. A graph of this evaluation would show a perfect linear correlation (see the dotted line in Figure 4). In cases of recruitment, the function would be curvilinear (represented by a curved line), and at the higher intensity levels the stimuli would be judged to be equally loud even though they might be as much as 80 dB above the threshold of hearing in the good ear and 35 dB above the threshold of hearing in the poorer ear (see the solid line in Figure 4).
Figure 4. Results of an alternate loudness balancing test demonstrating recruitment.
Image 6 in PDF format. Not available for Offline Print
The short increment sensitivity index (SISI) is an indirect measure of recruitment. Rather than evaluating the abnormal growth in loudness, this test measures the ability to detect small changes in intensity. An ear with cochlear pathology is capable of identifying very small changes in intensity because of "heightened" perception of loudness. In fact, depending on the frequency and intensity level of the tone, changes of less than 1 dB can be heard. The SISI measures this ability.[FN10]
A pure-tone signal of some frequency is presented at 20 dB above a person's threshold for that tone. The tone is on continuously, and at aperiodic intervals the intensity is increased
1 dB for a fraction of a second (often 500 milliseconds (ms)) and then returned to baseline. The SISI is a score expressed as the percentage of correct identifications of changes that occur in a series of 20 changes. A positive result, and therefore one indicative of cochlear pathology, is considered to be an SISI of 65 percent or greater.
Whereas the acoustic reflex is elevated or absent in cases of middle ear disorders, the reflex is present at reduced sensation levels in ears with cochlear lesions. The term sensation level (SL) describes the intensity level above sensory threshold at which the reflex occurs. A signal of 30 dB SL is 30 dB above whatever the sensory threshold may be. By adding the dB SL to the dB intensity level, the overall dB level is obtained.
In the normal ear, the acoustic reflex for pure-tones generally occurs at 70 to 90 dB SL
(that is, 70 to 90 dB above threshold). In the ear with cochlear damage, the sensation level at which the reflex is present is significantly reduced. For example, the sensory threshold for a pure-tone of 1,000 Hz in someone with cochlear pathology may be 50 dB.
The threshold for that same signal with normal ears may be 15 dB. However, in both ears the onset of the acoustic reflex may be 85 dB, representing 35 dB SL for the ear with cochlear loss, and 70 dB SL for the normal ear.

§ 10. Site-of-lesion testing—Tests of retrocochlear function
The term "retrocochlear" covers a broad area of anatomy, including the auditory nerve, brainstem, and cortex. The evaluation of retrocochlear function is, generally, based on three phenomena that occur in lesions of this type. The first common characteristic is abnormally rapid sensory fatigue. The second is "decruitment" (the opposite of recruitment; see § 9), a higher than normal tolerance to loud sound. The third is marked distortion of complex signals such as speech.
Tone decay tests are all based on the observation that damage to the auditory nerve causes rapid fatigue or perstimulatory adaptation (an alteration in the perception of an auditory stimulus during its presentation). Most tone decay tests require the individual to indicate how long a tone of constant intensity and frequency can be perceived. Some tone decay tests employ a signal that is close to threshold, while others use a signal that is well above threshold. The listener's task in either case is to inform the tester when the tone can no longer be heard. The test results are quantified by the length of time a sound can be perceived, or the amount of increase in intensity that is necessary for the tone to be perceived for a specified period of time.
Acoustic reflex tests. Decruitment may be observed in the results of acoustic reflex measures in lesions of the auditory nerve and brainstem. As with disorders of the middle ear, acoustic reflexes are at an elevated sensation level or may be altogether absent. What differentiates auditory nerve and middle ear disorders is the absence of air conduction/bone conduction threshold difference, and a normal tympanogram in those with auditory nerve impairment.
Another acoustic reflex test that is sensitive to auditory nerve and brainstem disorders is the acoustic reflex decay test. It is similar to other tone decay tests, but it does not require a behavioral response from the listener since it is a direct measure of a physiological process. When the auditory nerve (the sensory portion of the reflex arc) adapts, the facial nerve (the motor portion) responds accordingly, and a change in the amplitude of the reflex (monitored as a change in acoustic impedance) can be observed.
Evoked potentials. With the use of computer technology, it has become possible to monitor the minute electrical potentials of the brain that are produced in response to sensory stimuli. These potentials, which are in the nanovolt (one billionth of a volt) and microvolt (one millionth of a volt) ranges, occur at a predictable point in time following the onset of an acoustic stimulus. By recording these potentials, amplifying them, and averaging them over a large number of repetitions, a characteristic waveform pattern can be seen. The earliest of these potentials (within 1 to 10 ms after stimulation) relate to the electrical activity of the auditory nerve and nuclei of the auditory pathways within the brainstem.[FN11] Injury to these areas will prolong the latencies of these waveforms or obliterate them entirely.
Speech tests. As was mentioned above, a common characteristic of retrocochlear disorders is the symptom of distorted perception for complex sound stimuli such as speech. It is often observed in cases of auditory nerve dysfunction that the scores on tests of word discrimination, done in the basic evaluation,[FN12] are decreased far beyond what one might anticipate from the degree of loss in acuity. The simple tests of word

discrimination do not identify the more subtle lesions of the brainstem or cortex. More demanding tests can be employed that use degraded speech stimuli that are more sensitive than those that are undistorted. Various techniques are used to make the listening task more difficult. These include filtering the speech sounds, compressing the time domain in which they are presented, and adding noise in the background. All of these tests place great demands on the processing abilities of the auditory brainstem and cortex that can bring out lesions that otherwise might not be apparent.
§ 11. Tests of nonorganic hearing loss—Generally
For the forensic audiologist, it is essential that tests to measure hearing function, particularly hearing sensitivity, accurately reflect organic ability. There are legal circumstances such as personal injury suits and workers' compensation claims where the degree of hearing impairment is directly translated into dollars or other financial gains, and possibly reduced tax liability as well. This relationship can result in a person feigning loss or exaggerating a mild loss. Nonorganic hearing loss that is the result of a conscious act is generally known as malingering. There are rare instances where the nonorganic loss is not intentional and not at the conscious level of the individual. This type of functional loss is called psychogenic or hysterical deafness. True psychogenic deafness is thought by some to be nonexistent.[FN13]
It is not always an easy task to both identify and quantify nonorganic hearing loss. As an example, in 1978 the General Accounting Office (GAO) reviewed approximately 100 cases of workers' compensation claims that were adjudicated by the federal Office of
Workers' Compensation Programs.[FN14] The GAO report indicated lack of adequate evidence, faulty claims analysis, and questionable testing results. There were several cases in which initial audiograms, used in the claims, differed significantly from ones generated subsequently in tests conducted by audiologists at a medical university.
Tests of nonorganic or functional hearing loss can be separated into two types: (1) tests that identify the existence of nonorganic loss (see § 12), and (2) tests that quantify the extent of this functional component (see § 13).
Note: It is imperative that none of the tests for identifying or quantifying nonorganic hearing loss be used in isolation. As with any diagnosis, it is a constellation of signs, symptoms, and test results that proves the matter. Only through careful, critical observation and controlled testing can the pattern that is unique to nonorganic hearing loss be determined and documented.
§ 12. Tests of nonorganic hearing loss—Identifying tests
Testing that is intended to identify the existence of nonorganic loss is of two general types: observation and direct evaluation.
Observation

A close scrutiny of the behavior of an individual purporting to have loss of hearing can yield much information regarding nonorganicity. This information can be gathered during an interview, while taking a case history, or during the audiological evaluation. In an attempt to convince the examiner of their genuineness, those with functional hearing loss commonly exaggerate listening behaviors. They strain to see the talker (eyes squinting), cock their head to one side, ask for repetitions of something spoken, or do not respond at all. While this behavior can certainly occur with loss of hearing, it is the inconsistency with which it occurs that the astute observer can identify as characteristic of nonorganic loss.
Another inconsistency seen in the constellation of behaviors with nonorganic loss relates to speech patterns. We monitor our speech (loudness, pitch, rate, articulation) by auditory feedback; therefore, a particular type of hearing loss should produce a predictable change in speech. A severe loss of hearing which is sensorineural (pertaining to nervous sensation) should result in increased loudness and in misarticulation of consonant sounds, particularly the "s" sound. Severe to profound losses cause a change in the pitch of vocal output. "Deaf speech" has a characteristic high-pitched quality, as does speech of the profoundly hearing-impaired. These features of hearing loss should start to appear within a few months after onset. When they do not, the index for suspicion of a functional loss or component should increase.
Measures of intertest reliability yield important information for identifying nonorganic hearing loss. In cases of organic loss, an obtained pure-tone threshold should be replicated within plus or minus 5 dB if careful rigorous test procedures have been employed. When test-retest reliability exceeds plus or minus 10 dB within a test session, a functional component is indicated. There is also a relationship between the pure-tone threshold in the range of hearing where speech sounds occur (the speech frequencies) and the spondee threshold (see § 7). The spondee threshold should be within plus or minus 10 dB of the average of the pure-tone thresholds for 500, 1,000, and 2,000 Hz. In cases of severe high frequency loss, the spondee threshold is closer to the average of 500 and
1,000 Hz. Typically, with nonorganic hearing loss, the volunteered threshold for speech sounds is more sensitive than those offered for pure-tone stimuli.
Direct Evaluation
There are several procedures that demonstrate the existence of, but do not quantify functional hearing loss. The Bekesy test was used for many years as a tool in differential diagnosis.[FN15] Other, more sensitive techniques have replaced it for evaluation of cochlear and retrocochlear impairment, yet it is still a good tool for evaluation of nonorganic loss.
The Bekesy test employs an automatic recording device that allows the listener to control the presentation of stimuli rather than having the audiologist do it. The pure-tone stimuli are presented through earphones, and instead of discrete frequencies, a motor-driver oscillator produces a constantly increasing frequency (125 to 8,000 Hz range). The listener has a switch that controls an attenuator and therefore the intensity of the sound.
The listener's switch also controls the direction of a pen on one axis of an x-y recorder. A

timing device synchronized with the change in frequency controls the movement of the pen across the other axis. The listener is instructed to depress the switch when a tone is heard and keep it depressed until the tone is no longer present, at which time the switch is released.
Two types of pure-tone stimuli are used for presentation. In one condition the stimulus is on continuously. In the other, the tone is pulsed on and off at a specified rate (usually 50 percent). The resulting audiogram trace of someone with normal hearing should look like
Figure 5. The audiogram trace of someone with a functional loss looks like Figure 6.
Note that in Figure 5 the continuous tone trace is either interweaving or falls below the pulsed-tone trace. In the functional loss, however, the opposite relationship occurs.
The swinging speech test is effective with those individuals claiming unilateral loss of hearing.[FN16] It employs a tape-recorded passage which is recorded on two channels of the tape. Most of the passage is recorded on one channel, while certain key phrases are on the other channel. The primary channel is routed to an earphone placed on the listener's better ear. It is played at a level which is known to be comfortably loud. The secondary channel is presented to the supposedly poorer ear at a level below that reported to be the threshold for speech. The listener is then questioned about information in the story. Some answers can only be obtained if heard in the supposedly poorer ear.
Acoustic reflex tests can also be employed as measures of nonorganic hearing loss.
Knowing that a reflex response should appear at a certain level, the appearance of an acoustic reflex above or below this range should arouse the attention of the forensic audiologist. For example, when a hearing loss of 70 dB is present it is highly unlikely that an acoustic reflex will be observed. When a reflex does occur, and there is no evidence of recruitment, it is probably due to a functional component.
Figure 5. Bekesy audiogram indicating normal hearing
Image 7 in PDF format. Not available for Offline Print
Figure 6. Bekesy audiogram indicating a functional hearing loss
Image 8 in PDF format. Not available for Offline Print
§ 13. Tests of nonorganic hearing loss—Quantifying tests
The Stenger test is highly effective in quantifying hearing levels in cases of a unilateral functional hearing loss. The test is based on the phenomenon that when a stimulus is presented simultaneously to both ears, it will be perceived in the ear receiving the stimulus at the highest sensation level. If one's threshold for a 1,000 Hz tone is 25 dB in the right ear and 35 dB in the left ear, and that 1,000 Hz tone is presented simultaneously to both ears at 50 dB, it will be heard in the right ear. That is because it is present in the

right ear at 25 dB SL and in the left ear at 15 dB SL. Now suppose we increase the intensity in the left ear to 70 dB and keep the right ear at 50 dB. This signal is now at 25 db SL in the right ear and 35 dB SL in the left ear; it will be heard on the left side.
Now let us take the case of an individual who in fact has the thresholds 25 dB-right and
35 dB-left, but who indicates on testing that the threshold for the left ear is 60 dB. We tell the person to indicate when the signal can be heard by raising his hand on the side on which the signal is perceived. If the signal is presented at 30 dB in both ears, the right hand will be raised (it is now at 5 dB SL-right and minus 5 dB SL-left). Now we leave the signal at 30 dB-right and increase to 45 dB-left. The signal is still at 5 dB SL-right, but is now at 10 dB SL-left. The sound is heard in the left ear but at a lower level than the admitted threshold of 60 dB. The person with a unilateral functional or nonorganic hearing loss is now in a dilemma. If he chooses not to respond at all, we know the loss is functional because it is being presented at 5 dB SL in the right ear, and should be heard there if the loss in the left ear is organic. If he responds by raising the left hand, we know there is a functional component because the response is not consistent with the previous response of 60 dB.
The Stenger test can be used with either pure-tone or speech stimuli and can estimate threshold sensitivity within 5 to 10 dB. Its limitation, of course, is that it is only effective in cases of unilateral functional loss.
The delayed auditory feedback (DAF) test capitalizes on the same system that was described earlier (see § 12) that causes a person with severe loss of hearing to have deteriorated speech production ability. This auditory feedback system works instantaneously. That is, when we speak we simultaneously hear what we are saying. A disruption to this system can cause errors in speech production as well as other motor activities.
The pure-tone DAF test[FN17] employs one of the other motor functions. The individual is required to finger-tap, on a telegraph key-tapping device, a predetermined pattern (for example: ".. .... .. ...."). This is done continuously, and the pattern of tapping is recorded on a strip chart recorder. The key tap also activates an audiometer that produces a puretone stimulus and is fed to a pair of earphones worn by the person. A switch controlled by the audiologist can change the time within which the key tap activates the tone from instantaneous to 200 ms later. This delay then desynchronizes the motor activity of the key-tapping and the perception of the tone in the earphone produced by the tap.
If the intensity (which is controlled by the audiologist) is below the threshold level, it should have no effect on the key-tapping pattern. When it gets approximately 10–15 dB above threshold it causes a disruption of the pattern. When this pattern alteration is present below the level that was previously offered by the person as threshold, then the existence of a nonorganic hearing loss is verified. This procedure can estimate threshold sensitivity within 10–15 dB and can be quantified with the changes in the pattern produced by the strip chart recorder.
Another application of the DAF phenomenon is with the use of speech. The person is given a passage to read, and the length of time it takes him to read it is measured with a stop watch. The reader is speaking into a microphone which is routed to a tape recorder with a tape loop that records the speech and reproduces it with a 200 ms delay. The output of the recorder is fed through an audiometer to a pair of earphones worn by the reader. When the output is below the level of awareness it has no effect. When it is

increased to 10–15 dB above the speech awareness level it results in slowed speech, dysfluent speech, and changes in vocal intensity.
The acoustic reflex test has previously been described (see § 10) as being a diagnostic tool to differentiate middle ear, cochlear, and retrocochlear lesions, and to identify nonorganic loss. It can also be useful in estimating threshold sensitivity. This estimate is based on the difference between reflex thresholds for pure-tones and the reflex threshold for a broad-band noise.[FN18]
There is a predictable difference between reflexes for pure-tones and reflexes for noise
(the reflex for noise occurs at a lower intensity level), and changes in this difference can be used to estimate threshold sensitivity. This technique is not as accurate in estimating hearing as the Stenger or DAF tests. At best, it can categorize losses as mild, moderate, or severe. It is also limited by the existence of middle ear dysfunction, in which case even a mild loss can cause an absence of the reflex entirely.
As with the acoustic reflex tests, auditory evoked potentials such as the auditory brainstem response can be used to measure threshold sensitivity.[FN19] The characteristic waveform pattern is preserved, at least in part, to within 10 dB of threshold.
This technique can therefore be used as an objective verifier of a previously obtained behavioral threshold response. One limitation is that the same pure-tone stimulus used to obtain a behavioral response cannot be used to evoke the auditory brainstem response.
Acoustically, the temporal parameters of the pure-tone stimulus are too slow to activate a clear brainstem pattern. This potential is characteristically evoked with an acoustic click, and its spectrum is much broader than the pure-tone. This difference limits direct, one-toone comparison between the threshold of the auditory brainstem response and the threshold of a pure-tone.
Other evoked potentials, such as the cortically evoked potential, do not suffer from this disadvantage. The cortically evoked potential reflects higher-level cerebral activity in response to acoustic stimuli and can be stimulated by the same sounds used in routine audiometry. This evoked potential has been reported to be able to estimate threshold to within 5 or 10 dB.[FN20] The primary disadvantage of this technique is that it requires the active participation of the patient. Movement and attention can have significant effects on this test. The person who is suspected of nonorganic hearing loss may not be that cooperative.
§ 14. Analysis of the sound environment
[Cumulative Supplement]
The only environment on Earth that approximates the absence of sound is known as an anechoic chamber, and is man-made. Sound is everywhere in our surroundings, and certain sound—such as warning sounds of sirens, smoke detectors, train whistles, and the like—may be critical to our survival. Sounds can also be injurious to our health. Since the beginnings of the industrial revolution it has been an accepted fact that loud noises, in the work place, cause loss of hearing.

When the analysis of environmental sound is a key issue in a legal proceeding, the forensic audiologist must be able to present accurate findings regarding the physical parameters of the sound or sounds in question and their effect on the circumstances in question. These issues commonly arise in cases of workers' compensation claims for noise-induced hearing loss, and in personal injury suits involving collisions between automobiles and trains or emergency vehicles.
In order to accurately measure the sound in a particular environment it is necessary to have the appropriate instrumentation. The sound measuring devices must also be of high quality and must meet certain standards. The basic instrumentation used to measure the intensity and general frequency characteristics of sound is called the sound level meter
(SLM).[FN21] This tool measures the sound pressure level emanating from a source. The
SLM has at least three basic components. In order to make a measurement, the sound pressure must be converted from vibratory to electrical energy, and therefore one primary component of the SLM is a microphone. The type of microphone used in sound measurement varies with the type of analysis being made. Ceramic microphones, dynamic microphones, and condenser microphones are all used to make sound measurements. The condenser microphone is the most commonly used because it produces the least amount of distortion of the sound being measured.
Once the energy has been transduced from sound to electricity, it must be amplified and filtered. The amplifier/filter section of the SLM increases the intensity of the electrical potentials so that they can be analyzed. The filtering or weighting network acts on the signal to provide information relative to the frequency composition of the sound. By filtering part of the signal and allowing only certain bands of sound to pass, the spectrum of the sound source can be ascertained. The acoustic spectrum can be depicted as a graph plotting the frequency and intensity parameters of a sound.
The final component of the SLM is the output section of the meter. This then gives a visual display of the intensity of the sound in decibels.
So that measurements can be made in the field, sound level meters are battery operated.
When making measurements, one must consider many variables to arrive at an accurate assessment. In the measurement of sound it is important to know the relationship of the individual to the sound source, the sound reflective characteristics of the environment, and the nature and position of any sound absorbing surfaces. If the site where the sound is located is outdoors, atmospheric conditions (temperature, humidity, and wind speed) are also critical variables.
In cases involving workers' compensation claims, the issue is most often the effect of noise exposure over lengthy periods of time. The aspect of time then becomes important.
This must be analyzed in terms of both the temporal characteristics of the sound and the time of exposure to the sound. The sound of an engine or a saw that is constant or steadystate is different from that of a jack hammer or punch press, which is called impulsive. As discussed earlier (see § 4), impulsive and steady-state noises have differing effects on the auditory system.
The other time variable is length of exposure. The measurement of a sound at one point in time does not give much information about a worker's daily exposure. Measurement of sound over time requires other pieces of instrumentation. The output of a sound level meter can be recorded on a frequency modulated tape recorder. This permits the recording of lengthy exposures that can then be played back in a laboratory and converted

back to a visual display with a graphic level recorder or spectrum analyzer. The graphic level recorder is a strip chart recorder that gives a paper trace of the changes in sound intensity which occur over time. The spectrum analyzer analyzes both frequency and intensity parameters of a sound.
Because a worker's noise exposure may vary depending on his location relative to the sound source, a noise dosimeter can be worn to get a more accurate log of the cumulative daily total. Noise dosimeters are similar to personal sound level meters except that they integrate the sound energy being measured. The noise dosimeter can either indicate when a certain amount of accumulated sound energy has been exceeded, or can provide a daily average of the intensity level of sound to which the user has been exposed.
The sound reducing or attenuating characteristics of various materials and barriers must also be considered in measurement and analysis. In hearing-loss claims this most often refers to the sound-deadening quality of equipment enclosures, barriers, and personally worn ear protectors such as ear plugs or ear muffs.
In personal injury cases such as motor vehicle-train collisions there are different factors to consider. The hearing issue generally presents itself in connection with an accident that occurred at an unguarded railroad crossing. The question to be answered by the forensic audiologist is whether the driver of the automobile could hear the warning signal of the train in sufficient time to stop the car.
To formulate an opinion, the forensic audiologist must make several sound measurements. The actual warning sound (usually a train whistle) should be measured from the point where the car was located at the time the signal was presented. Any barriers between the train and car (buildings, trees, and so on) must be considered for their attenuating characteristics. Further, the attenuating characteristics of the car must also be determined. This means the sound reduction factor of the car windows (if they were rolled up). Next, it is critical to determine if there were other sounds in the environment which would have influenced the detection or audibility of the train whistle to the driver. This would include the car's ventilating/heating/air conditioning system, the car's sound system, and conversation with passengers. Finally, the hearing sensitivity of the driver must be measured.
Accurate measurement of each of these variables results in a determination of the approximate amount of sound energy from the train signal that was available to the driver. With this knowledge and an understanding of psychoacoustics (how humans respond to sound), the forensic audiologist can offer an opinion regarding the ability of the driver to perceive and respond to the warning.
CUMULATIVE SUPPLEMENT
Cases:
FELA claim required more than "very, very loud" opinion: Railroad employee failed to establish prima facie case of negligence under FELA, with respect to locomotive horns, which allegedly caused him hearing loss, in that he presented no objective measurements of sound levels, and instead relied on employees' opinions that horns were "very, very loud" and opinion of expert who presented no analysis of noise levels actually

experienced by employee. Federal Employers' Liability Act, §§ 1 et seq., 45 U.S.C.A. §§
51 et seq. Tufariello v. Long Island R.R. Co., 364 F. Supp. 2d 252 (E.D. N.Y. 2005);
West's Key Number Digest, Labor and Employment 2874.
Evidence was sufficient to sustain jury's finding, in FELA case, that railroad employee sustained hearing loss from years of exposure to train horns and machinery and that railroad negligently failed to provide ear protection or warnings to its workers to avoid noise exposure; employee and two co-workers described nature and intensity of noise experienced by employee, one doctor testified about noise produced by machines employee worked on, and another doctor testified that employee had configuration typical of damage from noise. Federal Employers' Liability Act, §§ 1 et seq., 45 U.S.C.A.
§§ 51 et seq. CSX Transp., Inc. v. Long, 703 So. 2d 892 (Ala. 1996).
Airport runways: Airline and airport did not have duty to determine that those who worked near jets were adequately protected from noise before jet began its journey; airline catering service employee, who sustained injury, had obligation to conform his activity to ordinary operation of jet and jet was being operated in ordinary, customary, and appropriate manner. Gravois v. Delta Airlines, Inc., 797 So. 2d 686 (La. Ct. App. 1st
Cir. 2000), writ denied, 769 So. 2d 545 (La. 2000); West's Key Number Digest, Aviation
144.
Testing by individual dosimeter: Employer proved that workers' compensation claimant, while working in chemical plant, was not exposed to long-term hazardous occupational noise in the three years prior to his filing claim petition, as affirmative defense to claim for work-related hearing loss; exposure over 90 decibels for an eight-hour day was deemed hazardous, and while there was evidence that machine produced noise in excess of 90 decibels, it only produced such noise for a few hours every 26 to 48 hours, and dosimeter worn by claimant registered an exposure of 81.4 decibels for an eight-hour period. 77 P.S. § 513. Flatley v. W.C.A.B. (Mallinckrodt Chemical, Calsicat Div.), 803
A.2d 862 (Pa. Commw. Ct. 2002); West's Key Number Digest, Workers' Compensation
1280.
Noise survey as business record: Noise surveys were admissible under business records exception to hearsay rule, and workers' compensation judge (WCJ) could rely on them to support finding that claimant was not exposed to hazardous occupational noise; employer's industrial hygienist explained that he directed monitoring and was the person responsible for the records kept of the monitoring, and this testimony provided sufficient indicia of reliability of records of the monitoring of noise levels in employer's plant. 42
Pa.C.S.A. § 6108(b). Toth v. W.C.A.B. (USX Corp.), 737 A.2d 838 (Pa. Commw. Ct.
1999); West's Key Number Digest, Workers' Compensation 1385.
[Top of Section]
[END OF SUPPLEMENT]
§ 15. Compensability of work-related hearing impairment

[Cumulative Supplement]
To be compensable under a state workers' compensation act or under one of the federal compensation programs, an injury or disability must have arisen during and in the normal scope of a person's employment.[FN22] The distinguishing factor of worker compensation law is that the element of fault, which plays so important a part in tort law, is eliminated. Essentially, the claimant must establish only the nature and extent of his injury or disability and its relationship to his employment.[FN23] Having done so, he will ordinarily be awarded compensation, assuming that the injury or disability in question is compensable at all under the applicable legislation.
Compensation for partial (as opposed to total) hearing loss has been upheld by most courts that have addressed the issue.[FN24] However, the express wording of the statute governs, and the language of some statutes has been held to preclude compensation.[FN25]
Some workers' compensation legislation requires that an injury or disability have resulted from an "accident" to be compensable. If strictly construed, such wording would bar claims for hearing loss resulting not from a single exposure to a very loud sound but, rather, from continuing exposure to a lower level of sound. It appears that most courts have construed "accident" broadly enough to include exposure of the latter type.[FN26]
Note too that the "accident" language has been deleted by subsequent amendment of the workers' compensation legislation in some states. Thus, for example, the court in the
Hinkle case[FN27] observed that the issue was before it only because the hearing loss in question was suffered before the statute had been amended to delete the accident requirement.
There is authority that compensation should not be barred simply because the claimant may have had a predisposition to a particular type of hearing impairment or because the impairment is unusual and might not be be suffered by the average worker under the same working conditions.[FN28]
CUMULATIVE SUPPLEMENT
Trial Strategy
Proof of "Disability" Under the Americans With Disabilities Act, 33 Am. Jur. Proof of
Facts 3d 1
Cases:
On railroad's motion for summary judgment on worker's FELA claim for hearing loss from exposure to locomotive horn blasts, worker established prima facie claim that railroad breached its duty of care to worker by exposing him to hazardous noise without

hearing protection and that such exposure caused him permanent hearing loss; railroad worker testified that while working at the railroad yard he endured repeated exposure to train horns that caused him physical pain, he also offered evidence that he and others complained of the loud volume of the horns, and, he testified that he specifically asked his superiors for hearing protection but was denied it. Federal Employers' Liability Act, §
1, 45 U.S.C.A. § 51. Tufariello v. Long Island R. Co., 458 F.3d 80 (2d Cir. 2006); West's
Key Number Digest, Federal Civil Procedure 2497.1.
Monaural loss: Longshore employee who sustains occupational, noise-induced, monaural hearing loss may be compensated for monaural loss and should not have his loss converted into binaural loss for purposes of calculating his benefits since Board's interpretation of statute that monaural loss can only be used in cases where hearing loss was caused by traumatic injury has no basis in statute or its legislative history, and there is no logical reason for compensating monaural hearing losses differently depending on their cause. Baker v Bethlehem Steel Corp. (1994, CA4) 24 F3d 632.
Railroad workers' claims that locomotive equipment, including cabs, engines, and brakes, not adequately designed or soundproofed and had caused their hearing loss were preempted by Federal Boiler Inspection Act, giving Secretary of Transportation power to regulate all locomotive parts and appurtenances, and regulations promulgated under statute. Workers' motion to amend their pleadings to add federal causes of action or state causes of action identical to federal causes of action denied, as no private cause of action existed under federal statute, and all state causes of action, regardless of whether they were identical to federal claims, were pre-empted. Workers' remedy was held to lie against railroad under Federal Employers Liability Act. Law v General Motors Corp.
(1995, ND Cal) CCH Prod Liab Rep ¶14252.
FELA preempted railroad employee's cause of action against railroad for intentional tort of fraudulent concealment of dangers of excessive noise; employee's cause of action was essentially one for failure to provide safe place to work or failure to warn of known risks, both of which were authorized by FELA. Federal Employers' Liability Act, §§ 1 et seq.,
45 U.S.C.A. §§ 51 et seq. Monarch v. Southern Pacific Transp. Co., 70 Cal. App. 4th
1197, 83 Cal. Rptr. 2d 247 (2d Dist. 1999), review denied, (July 21, 1999); West's Key
Number Digest, Fraud 16.
Workers' compensation claimant's tinnitis was proximately caused by his work-related automobile accident and compensable under the Workers' Compensation Act, which tinnitis caused claimant to be so devoid of his normal judgment that his subsequent act of suicide was not intentional, and therefore, claimant's employer was required to pay all of the claimant's outstanding temporary total disability (TDD) benefits as well as death benefits. West's Ga.Code Ann. § 34-9-17(a). Bayer Corp. v. Lassiter, 282 Ga. App. 346,
638 S.E.2d 812 (2006); West's Key Number Digest, Workers' Compensation 589.
The evidence was sufficient to support a finding by the Workers' Compensation
Commission that noise at an employee's work site was a contributing, precipitating, or aggravating factor in the production of Meniere's Syndrome, even though the etiology of
Meniere's Syndrome is largely unknown, where there was substantial evidence that exposure to high-intensity noise for a period of years at the work site contributed to, aggravated, or accelerated the employee's condition, and this evidence was not controverted by any direct medical evidence. Georgia-Pacific Corp. v Gregory (1991,
Miss) 589 So 2d 1250.

Fact that workers' compensation claimant did not plead date when he first visited physician to whom employer referred him for a hearing loss evaluation as injury date for his noise-induced hearing loss did not preclude finding that it was date of injury, where employer had referred claimant to hearing examination after claimant had completed a questionnaire in which he responded that he had hearing loss and a noisy job, claimant's attorney had stated before beginning trial that he intended to present evidence to show that that date was a possible date of injury, employer did not request a continuance or object that the evidence was outside pleadings, and employer questioned claimant about appointment and presented evidence regarding issue. Risor v. Nebraska Boiler, 277 Neb.
679, 765 N.W.2d 170 (2009).
911 operator: In workers' compensation proceeding, claimant failed to establish a causal link between her hearing loss and her employment as a 911 dispatcher; while claimant stated she was exposed to 911 callers yelling over her headset, as well as police and fire sirens when she was speaking with emergency personnel, claimant had suffered from recurrent ear infections as a child and such infections continued into adulthood, headset used by claimant was connected to amplifier that had a volume control, and physician opined that it was unlikely that claimant's hearing loss was caused by noise exposure.
West's N.C.G.S.A. § 97-53(28). Strezinski v. City of Greensboro, 654 S.E.2d 263 (N.C.
Ct. App. 2007); West's Key Number Digest, Workers' Compensation 1553.
Occupational hearing loss that does not require medical treatment before retirement is compensable, under provision of Industrial Insurance Act relating to rate of compensation for occupational diseases, according to schedule of benefits in effect on the date occupational noise last contributed to disability for which worker seeks compensation; disapproving Boeing Co. v. Heidy, 147 Wash.2d 78, 51 P.3d 793. West's RCWA
51.32.180(b). Harry v. Buse Timber & Sales, Inc., 201 P.3d 1011 (Wash. 2009), as corrected, (Mar. 10, 2009).
[Top of Section]
[END OF SUPPLEMENT]
§ 15.1. Compensability of work-related hearing impairment—Multiple employers
[Cumulative Supplement]
CUMULATIVE SUPPLEMENT
Cases:

Presumption that claimant's hearing loss for period when he worked at shipyard was compensable under LHWCA was not rebutted, where administrative law judge (ALJ) ruled that employer's shipyard and plant were both covered situses and that hearing loss was compensable, Benefits Review Board (BRB) then determined that plant was not covered situs, second ALJ on remand then ruled that claimant did not sustain hearing loss prior to being transferred from shipyard to plant, and BRB then re-instated claim; first
ALJ determined that period of work at shipyard was compensable, BRB understood issue of compensability to have been resolved, and second ALJ did not have issue of compensability before him and did not even refer to presumption of liability. Longshore and Harbor Workers' Compensation Act, § 20(a), 33 U.S.C.A. § 920(a). Bath Iron Works v. Brown, 194 F.3d 1 (1st Cir. 1999); West's Key Number Digest, Workers'
Compensation 1551.
Evidence, including claimant's uncontradicted testimony that he worked next to hydraulic electric motors that emitted high-pitched noise for eight hours per day while working for two employers, was sufficient to support award of LHWCA hearing loss benefits against those employers pursuant to last employer rule. Longshore and Harbor Workers'
Compensation Act, § 20(a), 33 U.S.C.A. § 920(a). Ramey v. Stevedoring Services of
America, 134 F.3d 954 (9th Cir. 1998).
Finding that employer exposed LHWCA claimant to injurious levels of noise on certain night when claimant operated crane, and that liability thus fell on such employer rather than on prior employer for whom claimant had operated crane four nights earlier, was supported by substantial evidence, including claimant's testimony regarding noises he generally heard when operating crane, and his testimony that prior employer's cranes were less noisy than crane he operated for the other employer. Longshore and Harbor
Workers' Compensation Act, §§ 1 et seq., 33 U.S.C.A. §§ 901 et seq. Jones Stevedoring
Co. v. Director, Office of Workers' Compensation Programs, 133 F.3d 683 (9th Cir.
1997).
State Insurance Fund was not required to produce report regarding apportionment between workers' compensation claimant's occupational disease and traumatic hearing loss, even though Fund had previously been found liable for claimant's occupational disease resulting in bilateral hearing loss, where claimant did not assert claim for traumatic hearing loss in his original claim, claimant did not remove himself from noise exposure until two years after establishing claim for medical treatment, and Fund did not cover employer on worker's date of disablement. McKinney's Workers' Compensation
Law § 49-bb. Estrada v. Peepels Mechanical Corp., 30 A.D.3d 659, 817 N.Y.S.2d 401
(3d Dep't 2006); West's Key Number Digest, Workers' Compensation 1686.
Trial court properly apportioned worker's hearing loss between current and past employers where hearing loss was caused by worker's exposure to loud noises as result of his employment as pipefitter over period of 43 years, including his current employment for period of 3 months. "Last injurious exposure" rule, under which last employment that bears causal relationship to claimant's occupational disease is deemed to have caused disease, did not apply, since hearing loss resulting from prolonged exposure to loud or concussive noise is "accidental injury," not "occupational disease," and legislature had clearly limited application of last injurious exposure rule to occupational disease alone.
Pauley v Lummus Constr. (1992, Okla App) 836 P2d 692.

Substantial evidence supported Workers' Compensation Board's findings that claimant's hearing loss due to many years of employment with multiple forest product employers was work related and that presumptive responsibility for claimant's loss should rest with employer who employed claimant at time he first sought treatment for condition under last injurious exposure rule. Norstadt v. Murphy Plywood/Liberty Northwest Ins. Corp.,
148 Or. App. 484, 941 P.2d 1030 (1997), opinion modified on reconsideration, 150 Or.
App. 245, 1997 WL 595279 (1997).
Earlier employer, rather than later employer, was responsible for workers' compensation claimant's occupational disease—that is, hearing loss. Earlier employer was initially responsible for claimant's condition where earlier employer was claimant's employer at time he first sought medical treatment for his hearing loss and where claimant did not lose time from work as result of his hearing loss, and responsibility did not shift to later employer since evidence failed to show that work exposure at later employer actually contributed to worsening of claimant's condition. Oregon Boiler Works v Lott (1992) 115
Or App 70, 836 P2d 756.
Employer, as the last employer under which workers' compensation claimant was exposed to loud noise, was responsible for claimant's specific hearing loss, notwithstanding alleged facts that employer only came into existence approximately two years before claimant retired, that employer was separate entity from its predecessors under which claimant was exposed to loud noise, and that many noise generating operations ceased with employer's start-up. Sellari v. W.C.A.B. (NGK Metals Corp.), 698
A.2d 1372 (Pa. Commw. Ct. 1997).
[Top of Section]
[END OF SUPPLEMENT]
§ 15.3. Noise level regulations
[Cumulative Supplement]
CUMULATIVE SUPPLEMENT
Cases:
City ordinance that prohibited certain levels of sound produced by electronic amplifying equipment at certain times of the day was not prior restraint of amphitheater's right to free speech; ordinance was content neutral in that it left entirely untouched the substance of what performers chose to say and being narrowly drawn to regulate decibels at certain hours did not authorize city to suppress speech in advance of its expression. U.S.C.A.

Const. Amend. 1. Polaris Amphitheater Concerts, Inc. v. City of Westerville, 267 F.3d
503 (6th Cir. 2001); West's Key Number Digest, Theaters and Shows 3.40.
OSHA standards may be admitted in FELA case as some evidence of applicable standard of care, but violation of OSHA regulation is not negligence per se; OSHA noise-level regulation was properly admitted in worker's suit alleging hearing loss and tinnitus because of exposure to excessive noise in his employment where court instructed jury that its standards were not binding on railroad and issue of negligence was for it to determine. United States v Myers (1994, CA9 Or) 32 F3d 411, 94 CDOS 5947, 94 Daily
Journal DAR 10803.
Employer committed "willful" violation of OSHA within meaning of § 666 by intentionally choosing to proceed at variance with OSHA regulations protecting employees from noise, even if employer acted in good-faith belief that its alternative safety program was superior to OSHA program. Martin v Trinity Indus. (1994, CA11) 16
F3d 1149, 16 BNA OSHC 1670, 1994 CCH OSHD ¶30374, 28 FR Serv 3d 503, 8 FLW
Fed C 29.
[Top of Section]
[END OF SUPPLEMENT]
§ 15.5. Defense considerations
[Cumulative Supplement]
CUMULATIVE SUPPLEMENT
Cases:
Continuing tort doctrine could not be applied to toll statute of limitations in railroad employee's action under FELA for hearing loss he allegedly sustained during the course of employment. Federal Employers' Liability Act, §§ 1 et seq., 45 U.S.C.A. §§ 51 et seq.
Mix v. Delaware and Hudson Ry. Co., 345 F.3d 82 (2d Cir. 2003); West's Key Number
Digest, Limitation of Actions 55(6).
Railroad employee knew, or should have known, of his hearing loss and its cause prior to the earliest date upon which his cause of action could have accrued to fall within the three-year statute of limitations period for FELA cases; by that point, employee had consulted a doctor, whose notes indicated that employee complained of reduced hearing for some time, less than a year later, employee completed an application on which he indicated that he had been told and noticed that he was hard of hearing, and employee stated that at time he consulted doctor, he had some belief that his hearing problems were

work-related. Federal Employers' Liability Act, §§ 1 et seq., 45 U.S.C.A. §§ 51 et seq.
Mix v. Delaware and Hudson Ry. Co., 345 F.3d 82 (2d Cir. 2003); West's Key Number
Digest, Limitation of Actions 95(4.1).
Sheet metal worker who was allegedly injured in railyard by high-pitched, shrill noise when railroad cars were pushed through "retarder," which is designed to slow rail car's motion, failed to prove employer's negligence; he failed to prove retarder was defective, retarder was properly in yard and properly served its purpose, employer was not obligated to provide its workers with hearing protection and worker acknowledged that ear guards were not feasible because railyard workers need to hear oncoming trains to avoid accidents, employer had no notice of defect in retarder and was unaware that it was capable of suddenly producing extraordinary, one-time noise, and there was no evidence that inspection of retarder would have disclosed defect capable of producing loud noise or that incident was reasonably foreseeable by employer. Brown v CSX Transp. (1994,
CA4 W Va) 18 F3d 245.
Termination release: General resignation and release agreement that former employees signed when separated from defendant railroad could not be construed as release of employees' claims for hearing loss injuries without specific finding by district court that it was intended to resolve claim of liability for those injuries; to be valid, release must reflect bargained-for settlement of known claim for specific injury, as contrasted with attempt to extinguish potential future claims employee might have arising from injuries known or unknown by him. Babbitt v Norfolk & W. Ry. (1997, CA6 Ohio) 104 F3d 89.
Concert promoter and owner of theater in which band's drummer allegedly incurred damage to his hearing as result of faulty sound system was not subject to strict liability for any defect in system, as it was not seller of system, nor was it liable for any negligence of sound system operator, independent contractor. Drummer claimed that, after he signaled to sound crew that he needed more volume from speaker near his head, volume from speaker shot upward, knocking drummer from his stool and causing hearing loss and permanent ear damage. Summary judgment for promoter was affirmed because drummer at first failed to produce any evidence showing that sound blast had occurred and produced affidavits from other band members to that effect only on motion to reconsider. Promoter was not subject to negligence liability because, even assuming that it had duty to provide properly-functioning sound system, drummer had failed to offer any evidence that system had malfunctioned. Nor was it subject to strict liability, as it did not manufacture or sell sound systems and was lessee, rather than lessor, of such systems.
Green v Whiteco Indus. (1994, CA7 Ind) 17 F3d 199, CCH Prod Liab Rep ¶13783.
Railroad employee's off-duty activities, namely recreational use of firearms without hearing protection, was sufficient to warrant contributory negligence instruction in FELA case alleging that employer exposed him to dangerously excessive levels of noise during his 34 years of service. Paul v Missouri P. R. Co. (1992, CA8 Ark) 963 F2d 1058.
Railroad employees' FELA (45 USCA §§ 51 et seq.) claims are time-barred, where they signed questionnaires in 1990 acknowledging hearing loss as early as 1986-87 but did not file claims for such alleged injuries until May 1994, because 3-year limitations period applies and causes of action accrued before May 1991. Whitman v CSX Transp. (1995,
ED Mich) 887 F Supp 983.
Former railroad engineer's FELA claim for hearing loss is time-barred, where engineer first noticed hearing loss in 1970s, shopped for hearing aids in 1985, and attended

retirees' meeting in 1986 at which group hearing loss claim was discussed, but did not file claim until 1991, because FELA claim accrued no later than 1986 and was commenced after running of 45 USCA § 56 3-year limitation period. Williams v Southern Pacific
Transp. Co. (1992, SD Miss) 813 F Supp 1227.
Former railroad car inspector's FELA (45 USCA §§ 51 et seq.) claim for hearing loss is not barred by resignation and release he entered into as part of voluntary separation program, where evidence of circumstances in which release was procured indicates that no controversy yet existed regarding liability so that no compromising thereof took place, because 45 USCA § 55 contains clear prohibition against devices operating to exempt employer from FELA liability. Damron v Norfolk & W. Ry. (1996, ND Ohio) 925 F
Supp 520.
Plaintiff's personal injury claim, alleging that he suffered hearing loss due to repeated exposure to loud noises while working as merchant mariner, is denied summarily, because plaintiff failed to submit anything but 2-paragraph, conclusory affidavit to support contention that he did not have reasonable opportunity to discover cause of hearing loss more than 3 years prior to filing lawsuit, and this is insufficient to create genuine issue of material fact in light of defendants' demonstration of absence of material fact as to plaintiff's failure to meet 3-year statute of limitation. Tanner v Academy
Tankers (1995, ED Tex) 898 F Supp 421.
Illinois Industrial Commission's (Commission) decision awarding benefits to claimant based on claimant's hearing loss was proper where employer admitted that claimant was exposed to sound levels in excess of the statutory limits of § 7(f) of the Workers'
Occupational Disease Act (Ill Rev Stat ch 48 par 172.42(f)), and where there was sufficient evidence presented of the causal connection between claimant's hearing loss and his exposure to excessive noise at work, because claimant's physician testified that claimant's hearing loss continued until he left his employment, following which claimant experienced no significant hearing loss; claimant's action was not barred by the statute of limitations on grounds that the last day of exposure to noise levels was in 1982 after which date claimant was to wear ear protection, and since claimant's action was not filed until 1986, more than 3 years after the last exposure, his claim was barred (Ill Rev Stat ch
48 par 172.36(f)), because evidence showed that ear protection was not always worn, and claimant's hearing loss continued from 1982 to 1985 when he left the employment, and therefore the date of last exposure was his last day of work in 1985, and therefore his claim was timely filed. Wagner Castings Co. v Industrial Com. (1993, 4th Dist) 241 Ill
App 3d 584, 182 Ill Dec 90, 609 NE2d 397.
Claimant's cause of action for occupational deafness against employer accrued, and two year statute of limitations began to run, when he first consulted with doctor due to ringing in his ears that he believed was related to his work with employer, was told by doctor that tests revealed he had a hearing loss, and loss was significant enough to be compensable under workers' compensation statute, even though claimant continued working, given that statute applicable to occupational hearing loss applied different definition of
"disablement" from statute governing other occupation disease. West's Ann.Md.Code,
Labor and Employment, §§ 9-502, 9-505, 9-711. Yox v. Tru-Rol Co., Inc., 380 Md. 326,
844 A.2d 1151 (2004); West's Key Number Digest, Evidence 551.
In action by railroad engineer against railroad under Federal Employers' Liability Act to recover for hearing loss caused by noise in workplace, railroad was entitled to invoke

adverse inference from plaintiff's failure to produce treating physician who initially gave hearing examination that revealed plaintiff's hearing loss, where physician's diagnosis of plaintiff's hearing problems, and any opinion he might have had of their cause, as well as possible history taken from plaintiff, was important in determining defendant's liability.
Further, whether plaintiff was advised by physician of possible cause of his hearing problems was relevant to pleaded defense of statute of limitations. Although physician's records were before jury, that did not preclude utilization of adverse inference, and records did not contain information about which doctor could have been expected to testify, i.e., diagnosis, history, and/or causation. Piper v Missouri P. R. Co. (1993, Mo
App) 847 SW2d 907.
Inherent risk of job: Hearing loss sustained by fire captain, when crew member activated air horn and siren on fire engine inside firehouse during routine inspection, occurred as result of risk inherent in captain's job and thus was not accidental, as required to support award of accidental disability retirement allowance under policemen's and firemen's retirement system; inspection of fire engine apparatus was both required and expected on that day, and although captain indicated that it was customary to run engine when testing horn and that neither horn nor siren were to be sounded while inside firehouse, there was no proof that these provisions were part of established, required procedure. McKinney's
Retirement and Social Security Law § 363. LaBella v. Hevesi, 27 A.D.3d 939, 810
N.Y.S.2d 603 (3d Dep't 2006); West's Key Number Digest, Municipal Corporations
200(5).
Time for filing WC claim: A workers' compensation claimant's belief, without more, that hearing loss is work-related does not rise to the level necessary to begin the running of the 120-day statute of limitations for giving notice of injury to employer; indeed, mere knowledge or suspicion of a significant hearing loss and a possible causal relationship with employment is not sufficient evidence of a compensable hearing loss. 77 P.S. § 631.
Crompton Corp. v. W.C.A.B. (King), 954 A.2d 751 (Pa. Commw. Ct. 2008); West's Key
Number Digest, Workers' Compensation 1230.
It was reasonable for legislature to require that hearing loss claims be filed within 3 years of last exposure to hazardous noise and to not apply discovery rule to hearing loss cases, and thus, under rational basis test, workers' compensation claimant's right to equal protection was not violated because his claim for hearing loss injury was not allowed to benefit from discovery rule, in light of statute providing that occupational hearing loss claim would be barred unless petition was filed within 3 years after date of last exposure to hazardous occupational noise; with last day of exposure to hazardous noise, which was normally last day of work, continuing injury to ears stopped. U.S.C.A. Const.Amend. 14;
77 P.S. § 513(8)(viii). McIlnay v. W.C.A.B. (Standard Steel), 870 A.2d 395 (Pa.
Commw. Ct. 2005), appeal denied, 885 A.2d 44 (Pa. 2005); West's Key Number Digest,
Workers' Compensation 39.
Discovery rule: In cases involving latent occupational diseases, discovery of the injury should not be equated with a plaintiff's discovery of the precise name of the disease that is causing his symptoms or that the disease is permanent; the seriousness of a personal injury need not be fully apparent or even fully developed in order to commence the statute of limitations. Childs v. Haussecker, 974 S.W.2d 31 (Tex. 1998), reh'g of cause overruled, (Sept. 24, 1998).

Where a railroad worker who sued the manufacturers of railroad equipment for damage to his hearing had received a letter from his employer informing him that hearing tests showed he may have some hearing problems, but he claimed that he did not realize he had a serious problem until he saw a doctor almost 2 years later, and he did not file suit until almost 3 years after receipt of the letter, the trial court properly granted the manufacturers' motion for summary judgment, because negligence or strict product liability claims must be brought within 2 years after such cause of action accrues or, if the claimant had no knowledge of his injury at the time of its accrual, within 2 years of his discovery of the injury, and the employee was on notice of an injury stemming from his employment once he received the letter from his employer. Hassell v Missouri Pac. R.R.
(1994, Tex App Tyler) 880 SW2d 39, writ den (Nov 3, 1994).
[Top of Section]
[END OF SUPPLEMENT]
II. Elements of Proof
§ 16. Elements of proof checklist
The following facts and circumstances, among others, tend to show the nature and extent of a person's hearing loss and that such loss resulted from exposure to noise in the person's work environment:
□ Absence of prior hearing dysfunction or knowledge of hearing sensitivity at time employment started [§ 20]
□ Noisiness of work environment
Steady-state sound level [§§ 25, 26]
Nature and extent of impulse noise [§ 3]
□ Period of claimant's exposure to excessive noise [§§ 20, 26]
□ Claimant's not having used adequate ear protection
Employer's nondistribution of protective devices [§§ 20, 26]
Absence or insufficiency of employer's instructions as to proper use of devices supplied
[§§ 20, 26]
□ Subjective symptoms of hearing impairment
Inability to understand normal conversation [§§ 20, 25]
Ringing in ears (tinnitus) [§ 20]

Reduced audiometric threshold [§§ 21, 22]
□ Type of impairment
Absence of gross abnormalities noted on physical inspection of ear canals [§ 19]
Audiometric findings consistent with noise-induced hearing loss [§ 26]
□ Audiologic findings
Existence and extent of unilateral loss
Existence and extent of bilateral loss [§§ 21– 23, 25, 26]
Configuration of loss [§§ 21– 23, 25, 26]
Depression of speech reception threshold
Impairment of discrimination of speech [§ 23]
Reduced tolerance for loud sound (recruitment) [§ 9]
Site-of-lesion test results consistent with cochlear dysfunction [§ 26]
□ Absence of evidence of functional (nonorganic) hearing loss [§§ 19, 23]
□ Absence of evidence of non-work-related cause of hearing loss
Absence of family history of hearing problems (hereditary deafness) [§ 26]
Absence of presbycusis [§ 26]
Correction of degree of loss based on existence of presbycusis
Absence or limited amount of non-work-related exposure to excessive noise [§§ 19, 20,
26]
§ 16.5. Burden of proving elements of claim
[Cumulative Supplement]
CUMULATIVE SUPPLEMENT
Cases:
Exposure: Whether the workers' compensation claimant has, in fact, been exposed to hazardous occupational noise is not part of the claimant's burden of proof on a claim for work-related hearing loss; instead, the employer may assert as an affirmative defense that the claimant's exposure to such noise was not hazardous or long-term. 77 P.S. § 513.
Flatley v. W.C.A.B. (Mallinckrodt Chemical, Calsicat Div.), 803 A.2d 862 (Pa. Commw.
Ct. 2002); West's Key Number Digest, Workers' Compensation 902.

Extent of injury: On a workers' compensation claim for work-related hearing loss, burden of proof is on the claimant to establish that he suffers from a permanent hearing loss of
10 percent or greater that is medically established to be work-related and caused by the long-term exposure to hazardous occupational noise. 77 P.S. § 513. Flatley v. W.C.A.B.
(Mallinckrodt Chemical, Calsicat Div.), 803 A.2d 862 (Pa. Commw. Ct. 2002); West's
Key Number Digest, Workers' Compensation 902.
Causation: Workers' compensation statute providing that whether the employee has been exposed to hazardous occupational noise or has long-term exposure to such noise shall be affirmative defenses to a claim for occupational hearing loss and not a part of the claimant's burden of proof in a claim, in combination with the definition of "hazardous occupation noise," delineates the permissible noise exposure levels. 77 P.S. §§ 25.4,
513(8)(x). General Elec. Co. v. W.C.A.B. (Rizzo), 737 A.2d 852 (Pa. Commw. Ct. 1999), reconsideration granted, (July 9, 1999); West's Key Number Digest, Workers'
Compensation 902.
[Top of Section]
[END OF SUPPLEMENT]
III. Proof of Nature, Extent, and Work-related Cause of Hearing Loss
A. Testimony of Forensic Audiologist
§ 17. Qualification of witness as expert
[Cumulative Supplement]
[After introduction and identification of witness]
Q. What is your profession?
A. I am a forensic audiologist.
Q. What is a forensic audiologist?
A. An audiologist is a person whose profession is concerned with measurement and interpretation of the hearing function and the rehabilitation of persons with defective hearing. Audiologists specialize in all aspects of auditory evaluation and nonmedical rehabilitation of impaired hearing, including speech, lip-reading, auditory training, and

speech conservation. When any of these factors relates to issues that are of legal concern, the individual who focuses his attention on these matters may appropriately be termed a forensic audiologist.
Q. What special training have you had to become a forensic audiologist?
A. My postgraduate studies include a Master of Science degree from [university] in and a
Doctor of Philosophy degree in audiology from [university] in . In addition, I have national certification by the American Speech-Language-Hearing Association, which certifies clinical competence in audiology.
Practice Note: Certification of audiologists. Audiologists are certified by the American
Speech-Language-Hearing Association. Not all states have licensing or certification requirements for audiologists.
Q. Are you a member of the American Speech-Language-Hearing Association?
A. Yes.
Q. Where are you now employed?
A. By the University of as a professor in audiology; I teach there and conduct audiologic research. I am also an audiologic consultant.
Q. Do you examine people for hearing defects?
A. Yes, I do.
Q. Approximately how many people have you so examined during the last years?
A. Several thousand.
Q. From your examination are you able to determine if a person has a hearing loss?
A. Yes.
Q. Can you determine the extent of the hearing loss?
A. Yes.
Q. Are you able to determine the site of the damage, disease, or specific condition within the ear that causes the hearing loss?
A. Yes, at least in many cases.

Q. And are you able to determine with reasonable certainty whether the the hearing loss was caused by some external factor or factors and, if so, what the factor or factors are?
A. Usually, yes.
[Counsel elicits additional qualifying testimony, as deemed appropriate.]
CUMULATIVE SUPPLEMENT
Cases:
Testimony of plaintiff's physician expert relating to causation of plaintiff's hearing loss and tinnitus is not excluded, where opinion was based on physician's extensive training and career in otolaryngology and on well-accepted method of differential diagnosis whereby physician elicited symptoms by examination and history and ruled out causes until most probable cause was determined, because physician's expert opinion as to causation is reliable and relevant. Wilson v Petroleum Wholesale (1995, DC Colo) 904 F
Supp 1188.
In action by railroad employees presenting hearing loss claims under Federal Employee's
Liability Act (FELA), trial court did not err in ruling that proffered audiologist was not competent to give expert testimony on cause of employee's hearing loss, where expert was not medical doctor, he had not performed tests at railroad yard or on railroad equipment to determine approximate levels of noise that employee had encountered, his evaluation rested mainly on authenticated documents that were ruled inadmissible by court, and although he had examined employee, he stated in his deposition that he was not qualified to give medical examination or to render opinion as to medical cause of individual's hearing loss. Hall v CSX Transp. (1994, Ala) 631 So 2d 1013.
Treating physician's opinion: Although there is no presumption entitling a treating physician's opinion to "great weight," a long term physician-patient relationship may afford the treating doctor a more comprehensive view of a workers' compensation claimant's medical history and condition. Boger v. North Dakota Workers Compensation
Bureau, 1999 ND 192, 600 N.W.2d 877 (N.D. 1999); West's Key Number Digest,
Workers' Compensation 1418.
[Top of Section]
[END OF SUPPLEMENT]
§ 18. Evaluation of claimant's hearing
Q. Have you had an opportunity to evaluate the hearing of [name], the claimant in this case?

A. Yes, I have.
Practice Note: Governing regulations. Workers' compensation regulations vary between states, and between different federal programs, such as the Office of Workers'
Compensation Programs (OWCP) and the Longshore and Harbor Workers' compensation program. However, in most instances licensed audiologists are qualified to evaluate an individual for the purpose of determining the nature and extent of hearing loss in cases of workers' compensation claims.
Q. When was the examination done?
A. [Claimant] was examined by me on [date].
Q. What type of hearing tests did you perform?
A. At that time I obtained a detailed case history including pertinent medical history, occupational history, and social history. I also performed the following audiological tests: a pure-tone air conduction threshold test, a pure-tone bone conduction threshold test, a spondee threshold test, a word discrimination test, a short increment sensitivity index, and a tone decay test.
§ 19. Results of evaluation—Validity
Q. What precautions did you take to ensure that the results of your evaluation of
[claimant] are a valid representation of his current hearing ability?
A. [Claimant] was evaluated by me in a sound attenuated room meeting American
National Standards Institute, or ANSI, criteria for sound reduction. All hearing tests were performed with an audiometer meeting ANSI standards. The audiometer had been calibrated within the past six months. [Claimant] stated that he had not been exposed to noise away from work, such as a chain saw, power mower, weapon fire, or anything similar that might cause temporary reduction of his hearing sensitivity. A physical examination of his ear canals showed them to be free of wax. There were no gross abnormalities of the ear canals or obvious evidence of middle ear infections. There was good agreement between test results and good test reliability. The results of my audiological evaluation were also consistent with other behavioral observations I made of
[claimant] during my interview of him. In summary, I have no reason to believe that there is any nonorganic component to my findings.
Q. You stated that there was no obvious evidence of middle ear disease. Could there have been a more subtle middle ear infection, and if so, how would this influence the results?

A. As I am not an otolaryngologist or licensed physician of any kind, I am not qualified to render a medical opinion regarding the presence or absence of middle ear disease.
However, as an audiologist I am trained and qualified to evaluate the effects on hearing that such infections may have. I will subsequently describe the results of these hearing tests which indicate that, even if [claimant] did have a middle ear infection, it did not significantly affect his hearing ability.
§ 20. Results of evaluation—Claimant's history
Q. Please describe the results of your evaluation.
A. [Claimant] provided the following detailed medical, occupational and social history prior to any audiometric testing. [Claimant] is 54 years old and has worked at [place of employment] as a sheet metal worker for 32 years. [Claimant] stated that he had a few ear infections as a child, but no chronic drainage or pain associated with his ears. He has two older siblings, neither of whom has impaired hearing. His parents are both living, and neither they, their siblings, or their parents are reported to have suffered from hearing loss. [Claimant] reports a blow to the head while playing baseball in high school; however, there are no records of skull fracture, and no evidence of a sudden change in hearing at that time. [Claimant] states that he has never been treated for heart disease, high blood pressure, stroke, kidney disease, arthritis, or diabetes, conditions which may contribute to hearing loss. [Claimant] has had some employment other than at [place of employment]. During summer vacations, while he was in high school, [claimant] worked at a supermarket as a bagger and later as a cashier. Upon graduation from high school he enlisted in the U.S. Army for three years. Following basic training he was assigned to an infantry division in a motor pool and worked in auto maintenance. While in basic training, and periodically thereafter, [claimant] was required to qualify on a rifle range with an M-14 rifle. This usually meant firing approximately 100 rounds of ammunition.
[Claimant] states that he was given and wore ear protective devices which he called ear plugs. Upon discharge from service, [claimant] went to a vocational education program, where he learned the trade of sheet metal fabrication. Subsequently, he obtained employment at [place of employment], where he has been employed continuously since .
[Claimant] has worked in various capacities, and at various locations at [place of employment]. In each instance he has been involved in sheet metal fabrication of one sort or another. This requires the cutting and joining of different types of metals, but mostly aluminum. Although he is unsure of dates, [claimant] indicates that it was not until sometime in the middle 's that he was offered or required to wear ear protection.
[Claimant] stated that he hunted for deer with a rifle, seasonally, until approximately five years ago. He has not fired a rifle since. In all, he estimates that he may have shot a cumulative total of 200 rounds of ammunition while hunting, or while sighting his rifle.
[Claimant] reported that he does not own, nor does he use at home a table saw, chain saw, lathe, or other similar power tool. He has a gas powered lawn mower which he uses weekly for approximately one hour, six to seven months per year. He does not own, nor does he use a snowmobile, motorcycle, or outboard motor boat.

Practice Note: Hearsay. The witness' testimony as to what the claimant told him should not present any hearsay problems. First, it is not being offered as evidence of the truth of the matter stated. Rather, it is part of the basis of the witness' opinion (see § 26) and, as such, is admissible in most jurisdictions. See Jones on Evidence (6th ed.) §§ 10:7, 14:21.
Annotation: Admissibility of opinion of medical expert as affected by his having heard the person in question give the hstory of his case, 51 A.L.R. 2d 1051. Second and perhaps more important, the technical rules of evidence are not rigidly enforced in most administrative proceedings, and evidence that would otherwise be objectionable hearsay has been admitted in a number of cases. 82 Am. Jur. 2d, Workmen's Compensation §§
523, 524. See also Federal Procedure, L. Ed. § 29:70 (OWCP proceedings), 29:193
(Longshore and Harbor Workers Compensation Act proceedings). Annotations:
Comment Note: Hearsay evidence in proceedings before state administrative agencies, 36
A.L.R. 3d 12 §§ 25–29 (workers' compensation proceedings); Comment Note: Hearsay evidence in proceedings before federal administrative agencies, 6 A.L.R. Fed. 76 § 27
(workers' compensation proceedings). Specific states in which admissibility might be a problem are Georgia, Idaho, Illinois, Indiana, Iowa, Maine, Massachusetts, Michigan,
Minnesota, Missouri, North Carolina, Oklahoma, and Wisconsin; the courts in these states continue to take the traditional view that hearsay that would be inadmissible in a court case is also inadmissible in an administrative proceeding. See 36 A.L.R. 3d 12 § 28.
Q. What did [claimant] report to you about his hearing?
A. He stated that he has difficulty hearing conversational speech, particularly when there is a background noise, or when several people are talking at once. He also reports a high pitched ringing sound in both ears which is most noticeable when he is in quiet places, such as when he is going to sleep. [Claimant] first became aware of these symptoms about 10 years ago, and they have been gradually progressive. [Claimant] did not have a hearing test at the time he began employment at [place of employment]. He stated that there were no provisions for hearing tests until the early to middle 's, about the same time he was supplied with ear plugs. [Claimant] states that the hearing protectors were soft rubber preformed plugs. They were simply distributed by the employee health nurse, and he was given no instruction on their proper use. [Claimant] further indicated that his hearing was tested every two years or so by the same nurse who gave him the ear plugs.Following the detailed interview, I proceeded with my audiometric examination.
§ 21. Results of evaluation—Pure-tone air conduction threshold test
Q. What was the first test you administered?
A. The first test I administered was a pure-tone air conduction threshold test.
Q. Please describe that test.

A. This is a test of the sensitivity of the ear, measured as a whole. That is, the results provide information about hearing acuity, but little about the function of individual structures within the ear. Each ear is tested independently through earphones. The results are given in decibels, or dB, a unit of measure for intensity of sound. Hearing sensitivity is evaluated at several different frequencies, and the unit of measure for frequency is
Hertz (Hz).
Q. What were the results of this test?
A. [Claimant's] pure-tone air conduction threshold test indicates a hearing loss on both ears between 2,000 Hz and 8,000 Hz. The hearing loss is symmetrical, that is, one ear is not significantly better than the other. The greatest loss in both ears is at 4,000 Hz, where the threshold is 75 dB in the right ear and 80 dB in the left ear. At frequencies both above and below 4,000 Hz, the amount of hearing loss is less than at this frequency.
Q. Would you please explain what you mean by "threshold"?
A. Auditory threshold is the sensitivity of the ear to sound stimuli. A tone is altered in intensity, usually in increments of 5 dB, until the threshold, defined as the 50 percent response level, for that stimulus has been identified. Responses are considered normal when the intensity of the pure-tone threshold does not exceed 25 dB. A mild loss of hearing is between 30–50 dB; moderate loss is 55–70 dB; severe loss is 75–90 dB; and profound loss is above 90 dB.
§ 22. Results of evaluation—Pure-tone bone conduction threshold test
Q. What was the next test you administered?
A. The next test I performed was a pure-tone bone conduction threshold test. This is very similar to the previous test except for the method of sound presentation.
Q. How does the method of sound presentation differ?
A. In a pure-tone air conduction threshold test, the sound is presented through earphones.
In a pure-tone bone conduction threshold test, the sound is presented by a small vibrator which is usually placed on the mastoid of the ear being tested. The mastoid is the prominence of bone behind the auricle or outer ear.
Q. What were the results of the pure-tone bone conduction threshold test?
A. The results of this test were the same as those for the air conduction threshold test.
That is, the test indicated a symmetrical hearing loss in both ears.
Q. What is the significance, if any, of that finding?

A. The diagnostic significance of this finding is the indication of normal function of the outer and middle ear structures.
Q. Did that influence your further testing?
A. Yes. In view of the fact that the outer and middle ears were working normally, yet a bilateral hearing loss apparently existed, the remainder of my examination was to determine more specifically the location of auditory dysfunction and thereby reach an opinion as to the cause of [claimant's] hearing loss.
§ 23. Results of evaluation—Spondee threshold test; word discrimination test
Q. What did you do next?
A. A spondee threshold test was then performed. It is similar to a pure-tone air conduction threshold test in that it assesses hearing sensitivity and is obtained with the use of earphones. The difference between the tests is in the type of sounds used to make the measurement. In this case, a common two-syllable word such as "baseball" or
"hotdog" is presented to the patient, who is asked to identify the word. The lowest intensity level at which the words can be identified with 50 percent accuracy is called the spondee threshold. This test is designed as a measure of the reliability of responses. The dB level of the spondee threshold should compare favorably with the average of the puretone air conduction thresholds at 500, 1,000, and 2,000 Hz. In cases of malingering or nonorganic hearing loss there is characteristically a large discrepancy between these two tests.
Q. How did [claimant's] spondee thresholds and pure-tone averages compare?
A. They compared well.
Q. Did you do any further testing?
A. Yes. The next test in my examination was a word discrimination test. This is not a test of hearing acuity; rather, it is a measure of the ability to understand speech when it is presented at a comfortable listening level. The test consists of a list of 50 specifically selected, one-syllable words. The word discrimination test score is the percent of correctly identified words. In hearing loss that is the result of outer or middle ear impairment, word discrimination scores are generally within normal limits, that is, 90 to
100 percent. [Claimant's] word discrimination scores were 82 percent in the right ear and
80 percent in the left ear.

§ 24. Results of evaluation—Short increment sensitivity index; pure-tone threshold tone decay test
Q. What, if anything, did the testing you have described so far indicate to you?
A. The results of the tests indicated to me that [claimant's] hearing loss was not the result of damage to the outer or middle ear. The remainder of my examination, therefore, was intended to determine if his hearing loss was due to inner ear insult or to some neural problem such as a tumor of the auditory nerve. The next two tests were then administered to evaluate this question.
Q. What was the first of these two tests?
A. The short increment sensitivity index, or SISI, which is a test that evaluates the function of the inner ear. The task for the listener is to identify very small periodic increases in the intensity of a tone that is on continuously and is presented via an earphone. The score for this test is given as the percentage of increases identified out of
20 such presentations. A score of 65 percent or more is considered positive and therefore indicative of inner ear impairment.
Q. What were the results of [claimant's] SISI test?
A. His short increment sensitivity indices for a tone of 2,000 Hz were 85 percent in the right ear and 90 percent in the left ear.
Q. And what was the final test?
A. The final audiometric test I administered was a pure-tone threshold tone decay test.
This test is designed to identify dysfunction of the auditory nerve, which typically occurs in cases of acoustic tumor. The task for the patient is to be able to maintain perception of a pure-tone presented through earphones, and at a threshold level, for a preselected period of time, usually one minute. If the patient is not able to hear the tone that long because it seems to fade away, the intensity of the tone is increased by 5 dB and a new minute is begun. The amount of tone decay is the amount of dB increase above threshold required to maintain perception of that tone for one minute. In cases of acoustic tumor, threshold tone decay often exceeds 30 dB. For [claimant], threshold tone decay was measured for a
2,000 Hz pure-tone in each ear. Decay was 10 dB in the right ear, and 5 dB in the left ear.
§ 25. Summary of testing; exhibits
Q. Please summarize the results of all the testing you did.

A. The results of [claimant's] audiologic evaluation indicate that he has a bilateral loss of hearing in the 2,000 to 8,000 Hz range, with the greatest loss being at 4,000 Hz. Special diagnostic tests to determine the site of damage within the ear demonstrate that the cause of [claimant's] hearing loss is damage of the inner ear.
Q. Here are six audiograms, marked Exhibits through for identification, that were taken at
[claimant's place of employment]. The name of each audiogram is that of the claimant.
The dates on the audiograms are between and . Have you seen these audiograms before?
A. Yes, I have.
Q. Can you comment on these audiograms and compare them to the results of your examination?
A. Yes, I can. The earliest audiogram you have shown me was obtained approximately 10 years after the initiation of [claimant's] employment at [place of employment]. This audiogram indicates a symmetrical hearing loss in both ears which is greatest at 4,000
Hz. The loss at this frequency is 60 dB in the right ear and 65 dB in the left ear. At frequencies both above and below this point, hearing sensitivity is much better. At 2,000
Hz hearing is within normal limits in both ears. At 3,000 Hz and 6,000 Hz there is a mild loss of 35 to 50 dB. At 8,000 Hz hearing is normal in the left ear, and borderline, at 30 dB, in the right ear. Taking the audiograms in chronological order, there is a slow progression in the loss of hearing at 4,000 Hz and a somewhat more rapid loss at the frequencies of 2,000 and 3,000 Hz, and 6,000 and 8,000 Hz. This pattern occurs in both ears.
[It is assumed that the exhibits are offered and admitted in evidence. As to the admissibility of such exhibits in court cases, see Annotation: Admissibility in civil action of record made by instrument used in medical test such as audiogram, 66 A.L.R. 2d 536.]
Q. I show you now Exhibit for identification, the results of a noise analysis at [place of employment] that was obtained on , . The measurements were made by [name], a certified audiologist who is a hearing conservation consultant. Have you seen this document before?
A. Yes, I have.
Q. Can you comment on the findings and give us your opinion of the validity of the results.?
A. Certainly. First, the analysis was conducted with equipment that meets the criteria of the American National Standards Institute for sound level meters. The values are reported in dBA, which is a weighted measure of sound intensity. Briefly, it analyzes sound under a filtered condition that is meant to approximate the way in which the human ear responds to sound. This technique is appropriate for determining noise levels where the risk to human hearing may be a factor and thus is accurate for this purpose.
Measurements of environmental noises were obtained at a variety of work stations at

[place of employment]. Each measurement was made at the approximate level and location of the ear of a worker who might be working in that area. Measurements were obtained at each location at various times of the day, in an effort to determine whether noise levels fluctuated significantly in intensity.
Q. Please continue.
A. Measurements were made in 10 different locations at [place of employment]. In seven of the locations the noise level consistently exceeded 85 dBA. In three of those seven locations noise levels consistently exceeded 90 dBA, and in one location the noise level consistently exceeded 100 dBA. The 85 dBA value is recognized by the Occupational
Safety and Health Administration as the noise level at which exposed workers are at a high risk for developing noise-induced hearing loss, if they are exposed for an eight-hour work day. For each 5 dB increase in the noise level, the maximum exposure time is reduced by 50 percent. That is, exposure to 90 dBA of noise should not exceed four hours, and exposure to 100 dBA should not exceed one hour.
§ 26. Opinion as to cause of hearing loss
[Cumulative Supplement]
Q. Based on the information you have seen, that is, [claimant's] employment audiograms, the noise survey conducted at [place of employment], and your examination, do you have an opinion as to the cause of [claimant's] hearing loss?
A. Yes, I do.
Q. What, in your opinion, is the primary cause of [claimant's] hearing loss?
A. In my opinion, [claimant] is suffering from a noise-induced hearing loss, which is primarily the result of his employment at [place of employment].
Q. Can you explain how you reached the conclusion that [claimant] has a noise-induced hearing loss?
A. Yes. By report, [claimant] states that he has not experienced chronic middle ear disease, and there is no reason to suspect a hereditary deafness. He also indicates that he is not now being, nor has he ever been treated for any illness which might cause a hearing loss. [Claimant's] symptoms of difficulty hearing in backgrounds of noise, and his perception of a high-pitched ringing sound or tinnitus in his ears are characteristic of a high-frequency hearing loss secondary to inner ear or cochlear damage. My audiological evaluation of [claimant] demonstrates that he does, indeed, have a high frequency hearing

loss in the 2,000 to 8,000 Hz range in both ears. Further evaluation, including pure-tone bone conduction threshold tests, word discrimination tests, short increment sensitivity index, and threshold tone decay tests, substantiates that the site of damage within the auditory system is the inner ear.By history, [claimant] has worked in a noise-hazardous environment for more than 30 years. Serial audiograms obtained over a period of years reveal a gradually progressive loss of hearing. In the absence of any history or record of another causative agent, I have concluded that [claimant's] hearing loss is the result of prolonged exposure to high intensity noise without adequate ear protection.
Q. You stated earlier that [claimant's] hearing loss is primarily the result of his employment at [place of employment]. How were you able to make this determination?
A. There are several pieces of information which lead me to this conclusion. First, it is known that [claimant] has worked for 30 or more years in a place where the noise level exceeds 85 dBA, the Occupational Safety and Health Administration's benchmark for risk of hearing loss. For approximately the first 10 years of his employment, [claimant] indicates that he was not required to wear ear protection devices, nor was he furnished them. Even after this time, he was merely dispensed ear plugs without appropriate fitting or assessment of their effectiveness. The only other significant exposure to noise that
[claimant] experienced was while in the military, and recreationally, when hunting. In all,
[claimant] may have fired a rifle 500 to 600 times in his lifetime. While in the Army he used ear protectors, but again, we are unaware of their effectiveness. In any event, firing a rifle typically has an asymmetric effect on hearing. That is to say, it produces a greater hearing loss in one ear than the other. When holding a rifle to fire it, the ear on the side of the trigger finger is buried in the shoulder, while the opposite ear is toward the muzzle.
The ear on the side of the trigger finger has some natural protection as it is facing away from the muzzle blast, while the other ear is facing it directly. This causes one ear to be more affected that the other. [Claimant's] hearing loss is very similar in both ears. His use of a gas powered lawnmower is not of a sufficient integrated time period to be a factor in the extent of his hearing loss. Based on this information I have formulated my opinion that [claimant's] hearing loss is a direct consequence of his employment.
Q. Is it possible that some of [claimant's] hearing loss is a result of the aging process?
A. This is always a possibility. However, it is highly unlikely. Hearing loss as a result of aging, or presbycusis, does not affect the ear in exactly the same way that noise does.
Whereas the type of noise exposure that [claimant] experienced usually produces an initial hearing loss in the 3,000 to 6,000 Hz range, presbycusis typically affects higher frequencies first. [Claimant's] audiograms exhibit the typical configuration of noise exposure. Further, presbycusis often results in a marked decrease in word discrimination scores, which are not proportional to the amount of change in hearing sensitivity.
[Claimant's] word discrimination scores were only mildly affected, and they were proportional to his hearing loss configuration.
Q. Do you have anything else to add?

A. Yes. There are several studies which have evaluated large numbers of people in an effort to determine the average change in hearing with age. Depending on the regulatory agency governing disability claims for workers' compensation, these tables may or may not be applied as a correction factor to reduce the calculated percentage of hearing impairment by that amount which may be attributable to aging. In [claimant's] case, the amount of reduction, using the appropriate correction factor, does not make a substantial change in the amount of his hearing impairment.
CUMULATIVE SUPPLEMENT
Cases:
Facts assumed in hypothetical posed to expert witness in FELA action were supported by trial testimony; expert was asked about likelihood that someone with employee's work history would suffer job-related hearing loss, employee and co-worker testified as to how long employee worked at various jobs, and industrial hygienist testified that noise at job site exceeded Occupational Health and Safety Administration standards. Federal
Employers' Liability Act, §§ 1 et seq., 45 U.S.C.A. §§ 51 et seq. CSX Transp., Inc. v.
Long, 703 So. 2d 892 (Ala. 1996).
Expert's cross-examination responses during video-taped deposition were not expert medical testimony with degree of medical certainty needed to establish causal connection between claimant's work-related accident and subsequent disability; even if expert answered "sure" to question about whether accident may have aggravated preexisting back injury, he also testified with requisite medical certainty that there was no causal relationship between minor back strain and subsequent disability American Airlines
Corp. v. Stokes, 120 Md. App. 350, 707 A.2d 412 (1998), reconsideration denied, (Apr.
28, 1998).
In the workers' compensation context, medical experts need not utilize magic words so long as expert's testimony, taken as a whole, fairly supports the proposition at issue.
Hoffmaster v. W.C.A.B. (Senco Products, Inc.), 721 A.2d 1152 (Pa. Commw. Ct. 1998).
[Top of Section]
[END OF SUPPLEMENT]
Primary Authority
Occupational Safety and Health Act of 1970, 29 USCA §§ 651 et seq.

A.L.R. Library
Validity, Construction, and Application of Provisions of Workers' Compensation Act for
Additional Compensation Because of Failure To Comply with Specific Requirement of
Statute or Regulation by Public for Protection of Workers, 31 A.L.R.6th 199
Validity of State or Local Enactment Regulating Sound Amplification in Public Area,
122 A.L.R. 5th 593
Right to Workers' Compensation for Emotional Distress or Like Injury Suffered by
Claimant as Result of Nonsudden Stimuli—Compensability Under Particular
Circumstances, 108 A.L.R. 5th 1
When Time Period Commences as to Claim Under Workers' Compensation or
Occupational Diseases Act for Death of Worker Due to Contraction of Disease, 100
A.L.R. 5th 567
When Limitations Period Begins to Run as to Claim for Disability Benefits for
Contracting of Disease under Workers' Compensation or Occupational Diseases Act, 86
A.L.R. 5th 295
Workers' compensation: Lyme disease, 22 A.L.R. 5th 246
Excessiveness or adequacy of damages awarded for injuries to, or conditions induced in, sensory or speech organs and systems, 16 A.L.R. 4th 1127 § 3 (ear)
Sufficiency of proof that condition of skin or sensory organ resulted from accident or incident in suit rather than from pre-existing condition, 2 A.L.R. 3d 446 § 4 (ear condition)
Admissibility in civil action of record made by instrument used in medical test such as audiogram, 66 A.L.R. 2d 536
Validity, construction, and application of OSHA general industry standard regulating exposure to occupational noise (29 CFR § 1910.95), 43 A.L.R. Fed. 159

Legal Encyclopedias
Cause and nature of compensable injury or disability, 82 Am. Jur. 2d, Workmen's
Compensation §§ 224 et seq.
Relation of injury or disability to employment, 82 Am. Jur. 2d, Workmen's
Compensation §§ 240 et seq.
Particular injuries, disabilities, and causes of injury or disability, 82 Am. Jur. 2d,
Workmen's Compensation §§ 289 et seq.
Establishment, settlement, and enforcement of compensation claims, 82 Am. Jur. 2d,
Workmen's Compensation §§ 441 et seq.
Treatises and Practice Aids
Attorney's Medical Advisor, Auditory Nerve § 36:40
Attorneys Medical Atlas, Brain; cranial nerves; lateral view; normal Figure 6:5:9
Attorneys Medical Atlas, Ear; coronal view; normal Figure 14:1:1
Attorneys Medical Atlas, Ear; tympanic membrane; lateral view; normal Figure 14:1:2
Medical education and specialties, medical terminology, and general information,
Attorneys Medical Deskbook (2d ed.)
Diversity jurisdiction of federal district courts, Federal Procedure, L. Ed. §§ 1:34 et seq.

Hearing before Office of Workers' Compensation Programs, Federal Procedure, L. Ed. §§
29:66 et seq.
Hearing in proceeding under Longshore and Harbor Workers' Compensation Act, Federal
Procedure, L. Ed. §§ 29:184 et seq.
Trial Strategy
Proof of Injury or Damage Caused by Sonic Boom, 85 Am. Jur. Proof of Facts 3d 307
Citizen Suits Under the Noise Control Act, 58 Am. Jur. Proof of Facts 3d 315
Common Law Action for Noise Nuisance on Neighboring Land, 41 Am. Jur. Proof of
Facts 3d 391
Proof of "Disability" Under the Americans With Disabilities Act, 33 Am. Jur. Proof of
Facts 3d 1
Workers' Compensation—Employer's Intentional Misconduct, 48 Am. Jur. Proof of Facts
2d 1
Hearing Loss Due to Trauma, 40 Am. Jur. Proof of Facts 2d 263
Inadequacy of Warning Device At Railroad Crossing, 37 Am. Jur. Proof of Facts 2d 439
Qualification of Medical Expert Witness, 33 Am. Jur. Proof of Facts 2d 179
Audiologic Hearing Assessment, 19 Am. Jur. Proof of Facts 573
Defending the Workers' Compensation Claim in the Trucking Industry and Preparing for the Claim on the Front End, 99 Am. Jur. Trials 1

Obtaining Workers' Compensation for Back Injuries, 79 Am. Jur. Trials 231
Railroad Crossing Accident Litigation, 23 Am. Jur. Trials 1
Discovery and Evaluation of Medical Records, 15 Am. Jur. Trials 373
Handling Claims for Injuries to Longshoremen, 14 Am. Jur. Trials 563
Selecting and Preparing Expert Witnesses, 3 Am. Jur. Trials 585
Forms
Allegation in petition or complaint alleging hearing loss from cumulative effect of industrial noise, 25 Am. Jur. Pleading and Practice Forms, Workmen's Compensation,,
Form 55
Forms relating to claims under federal compensation acts, Federal Procedural Forms, L.
Ed. §§ 26:31 et seq. (OWCP proceeding under Federal Employees' Compensation Act)
Forms relating to claims under federal compensation acts, Federal Procedural Forms, L.
Ed. §§ 26:81 et seq. (proceeding under Longshore and Harbor Workers' Compensation
Act)
Law Reviews and Other Periodicals
Damages and rewards: assessment of malingered disorder in compensation cases, 24(5)
Behavioral Sci. & L. 645 (2006 WL 3913866)
Jensen et al, New Efforts Toward a Quieter Environment: The Noise Control Act of
1972, 13 American Business LJ 45 (Spring 1975)
Lake, Noise Overexposure, 12 Trial 41 (May 1976)

Lowering the limits on noise, Health & Safety Bull., May 1, 2006, at 25 (2006 WL
1591673)
Miller, Occupational Noise Injury, 8 Trial 59 (May/Jun 1972)
Say it loud: noise pollution hurts, kills, 22 Envtl. F. 12 (2005 WL 2114383)
Strict three-year limit on hearing loss claims is ok, 28 Pa. L. Wkly. NA (2005 WL
1107135)
Tinnitus, even without hearing loss, qualifies for workers' comp benefits, N.J.L.J., July
30, 2007 (2007 WL 2319192)
24-Hour Noise Dose and Risk Assessment, 18 Appl. Occupat. & Environ. Hygiene 4:232
(2003)
A descriptive cross-sectional study of annoyance from low frequency noise installations in an urban environment, 5(20) Noise Health 35 (2003)
Agreement between hearing thresholds measured in non-soundproof work environments and a soundproof booth, 60(9) Occup Environ Med 667 (2003)
Are cochlear implant patients suffering from perceptual dissonance? 26(5) Ear Hear 435
(2005)
Assessment of Noise Exposure for Indoor and Outdoor Firing Ranges, 4(9) J. Occup. &
Environ. Hyg. 688 (2007)
Automobile air-bag deployment and hearing loss, 32(4) J Otolaryngol 274 (2003)
Characteristics of tinnitus in a population of 555 patients: specificities of tinnitus induced by noise trauma, 12(1) Int Tinnitus J 64 (2006)

Could Driving Safety be Compromised by Noise Exposure at Work and Noise-Induced
Hearing Loss?, 9(5) Traff. Inj. Prev. 489 (2008)
Davis, Principles of Electric Response Audiometry, 85 Annals of Otology, Rhinology and Laryngology 1 (1976)
Effect of electronic ANR and conventional hearing protectors on vehicle backup alarm detection in noise, 46(1) Hum Factors 1 (2004)
Effect of infrasound on cochlear damage from exposure to a 4 kHz octave band of noise,
225(1-2) Hear Res 128 (2007)
Environmental noise-exposed workers: event-related potentials, neuropsychological and mood assessment, 65(3) Int J Psychophysiol 228 (2007)
Evaluation of Noise Attenuation and Verbal Communication Capabilities Using Three
Ear Insert Hearing Protection Systems Among Airport Maintenance Personnel, 4(2) J.
Occup. & Environ. Hyg. 114 (2007)
Exposure to occupational noise: otoacoustic emissions test alterations, 72(3) Rev Bras
Otorrinolaringol (Engl Ed) 362 (2006)
Goldstein, Pseudohypacusis, 31 J Speech & Hearing Disorders 342 (1976)
Guide for the Evaluation of Hearing Handicap, 241 JAMA 2055 (May 11, 1979)
Harford & Matkin, Interpretation of Audiograms and the Implications of Industrial
Hearing Loss on Communication, 105 Nat Safety News 77 (April 1972)
Hearing loss in motorcyclists: occupational and medicolegal aspects, 96(1) J R Soc Med
7 (2003)
Hearing protection use in industry: The role of risk perception, 43(4) Safety Science 253
(2005)

Jerger, Burney, Mauldin & Crump, Predicting Hearing Loss from the Acoustic Reflex, 39
J Speech & Hearing Disorders 11 (1974)
Jerger, Shedd & Harford, On the Detection of Extremely Small Changes in Sound
Intensity, 69 Archives of Otolaryngology 200 (1959)
Jerger & Mauldin, Prediction of Sensorineural Hearing Level from the Brainstem Evoked
Response, 104 Archives of Otolaryngology 456 (1978)
Medicolegal decision making in noise-induced hearing loss-related tinnitus, 11(1) Int
Tinnitus J 92 (2005)
Meyerhoff & Liston, Evaluation of the Patient with Sensorineural Hearing Loss, 8
Lawyers Med J 2d 445 (Feb 1980)
New Advances in Objective Audiometry, 234 JAMA 823 (Nov 24, 1975)
Noise: a distraction, interruption, and safety hazard, 86(2) AORN J 281 (2007)
Noise exposure and hearing loss in agriculture: a survey of farmers and farm workers in the Southland region of New Zealand, 45(12) J Occup Environ Med 1281 (2003)
Noise Exposure of Music Teachers, 1(4) J. Occupat. & Environ. Hygiene 243 (2004)
Occupational Noise Levels During Emergency Relief Operations in the Aftermath of
Hurricane Katrina, 4(4) J. Occup. & Environ. Hyg. 33 (2007)
Ototoxic occupational exposures for a stock car racing team: I. Noise surveys, 2(8) J
Occup Environ Hyg 383 (2005)
Promotion of Noise-Induced Hearing Loss by Chemical Contaminants, 67(8) J. Toxic. &
Environ. Health 727 (2004)

Relationship between exposure to multiple noise sources and noise annoyance, 116(2) J
Acoust Soc Am 949 (2004)
Surveillance of occupational noise exposures using OSHA's Integrated Management
Information System, 46(5) Am J Ind Med 492 (2004)
Susceptibility to tinnitus revealed at 2 kHz range by bilateral lower DPOAEs in normal hearing subjects with noise exposure, 12(3) Audiol Neurootol 137 (2007)
The bells are ringing: tinnitus in their own words, 48(3) Perspect Biol Med 396 (2005)
Therapeutics of hearing loss: expectations vs reality, 10(19) Drug Discov Today 1323
(2005)
Towards more effective methods for changing perceptions of noise in the workplace,
45(4) Safety Science 431 (2007)
Toxic solvents in car paints increase the risk of hearing loss associated with occupational exposure to moderate noise intensity, 2(1) B-ENT 1 (2006)
Using the EPPM to Create and Evaluate the Effectiveness of Brochures to Increase the
Use of Hearing Protection in Farmers and Landscape Workers, 36(2) J. Appl. Commun.
Resear. 200 (2008)
Ward & Duvall, Behavioral and Ultrastructural Correlates of Acoustic Trauma, 80
Annals of Otology, Rhinology, and Laryngology 881 (1971)
Workers' compensation fraud and the physician, 4(2) Clin Occup Environ Med viii
(2004)
Additional References

R. Baloh, "Hearing Loss" in Cecil Textbook of Medicine 1958 (16th ed Wyngaarden &
Smith 1982)
F. Martin, Introduction to Audiology (Prentice Hall 1975)
Forensic Audiology (M.B. Kramer & J.M. Armbruster, eds., 1982)
Newby, The Role of the Audiologist, National Safety News (February 1973)
Conditions of the ears, The Merck Manual of Diagnosis and Therapy 1937-1962 (14th ed
Berkow 1982)
Industrial noise control, technical information, United States Department of Labor,
Occupational Safety and Health Administration, Noise Control: A Guide for Workers and
Employers (1980)
--------------------------------------------------------------------------------
[FN*] This article supplements Occupational Deafness, 14 Am. Jur. Proof of Facts 329.
[FN**] Dr. Rappaport, a forensic audiologist, is a partner in Communication Disorders
Consultants, Portland, Oregon. He is also on the faculty of the Department of Medicine,
Oregon Health Science University, and the Program in Audiology, University of Oregon.
The author acknowledges the assistance of Douglas A. Swanson in the preparation of a portion of this article.
The medical drawings and graphs in this article were prepared by Biomed Arts
Associates, Inc., San Francisco.
Section 2 Footnotes:
[FN1] J. Shampan & R. Ginnold, "The Status of Workers' Compensation Programs for
Occupational Hearing Impairment" in Forensic Audiology (M.B. Kramer & J.M.
Armbruster, eds., 1982).
[FN2] 41 CFR § 50-204.10; see also 29 CFR §§ 1910.95 (general OSHA noise standard) and 1926.52 (noise standard applicable to the construction industry).

[FN3]
Trial Strategy
Hearing Loss Due to Trauma, 40 Am. Jur. Proof of Facts 2d 263.
A.L.R. Library
Excessiveness or adequacy of damages awarded for injuries to, or conditions induced in, sensory or speech organs and systems, 16 A.L.R. 4th 1127 § 3 (ear).
[FN4]
Trial Strategy
Inadequacy of Warning Device At Railroad Crossing, 37 Am. Jur. Proof of Facts 2d 439.
Section 3 Footnotes:
[FN5] The decibel is the standard unit for measuring sound intensity. It is actually a logarithmic ratio of one sound level to a reference sound level, but for present purposes it can be thought of as the unit used in a sound scale that, for an average person, ranges from zero for the least perceptible sound to about 130 for a sound causing pain.
Section 4 Footnotes:
[FN6] For a more detailed description of the anatomy and physiology of the ear, see
Hearing Loss Due to Trauma, 40 Am. Jur. Proof of Facts 2d 263 § 2.
[FN7] The hertz, named for Heinrich R. Hertz, is a unit of frequency equal to one cycle per second. "kHz," the abbreviation for "kilohertz," is a shorthand way of saying 1,000
Hz.
Section 5 Footnotes:
[FN8] Ward & Duvall, Behavioral and Ultrastructural Correlates of Acoustic Trauma, 80
Annals of Otology, Rhinology, and Laryngology 881 (1971); Hunter-Duvar & Bredberg,
Effects of Intense Auditory Stimulation, Hearing Losses and Inner Ear Changes in the
Chinchilla, 55 J Acoustical Society of America 795 (1974).
Section 9 Footnotes:

[FN9] See Fowler, A Method for the Early Detection of Otosclerosis, 24 Archives of
Otolaryngology 731 (1936).
[FN10] See Jerger, Shedd & Harford, On the Detection of Extremely Small Changes in
Sound Intensity, 69 Archives of Otolaryngology 200 (1959).
Section 10 Footnotes:
[FN11] Evoked potentials from 50 to 300 ms are associated with high-level brainstem and cortical activity.
[FN12] See §§ 6, 7.
Section 11 Footnotes:
[FN13] See, for example, Goldstein, Pseudohypacusis, 31 J Speech & Hearing Disorders
342 (1976).
[FN14] General Accounting Office, To Provide Proper Compensation for Hearing
Impairment, the Labor Department Should Change Its Criteria: A Report to the Congress
(1978).
Section 12 Footnotes:
[FN15] Jerger, Bekesy Audiometry in Analysis of Auditory Disorders, 3 J Speech &
Hearing Research 275 (1960). See also Kacker, Bekesy Audiometry in Simulated
Hearing Loss, 36 J Speech & Hearing Disorders 506 (Nov 1971).
[FN16] F. Martin, Introduction to Audiology (Prentice Hall 1975).
Section 13 Footnotes:
[FN17] Ruhm & Cooper, Delayed Feedback Audiometry, 29 J Speech & Hearing
Disorders 448 (1964).
[FN18] Jerger, Burney, Mauldin & Crump, Predicting Hearing Loss from the Acoustic
Reflex, 39 J Speech & Hearing Disorders 11 (1974).
[FN19] Jerger & Mauldin, Prediction of Sensorineural Hearing Level from the Brainstem
Evoked Response, 104 Archives of Otolaryngology 456 (1978).

[FN20] Davis, Principles of Electric Response Audiometry, 85 Annals of Otology,
Rhinology and Laryngology 1 (1976).
Section 14 Footnotes:
[FN21] The American National Standards Institute specification for sound level meters is
ANSI S1.4-1971.
Section 15 Footnotes:
[FN22] See, generally, 81 Am. Jur. 2d, Workmen's Compensation §§ 96 et seq.
[FN23]
Legal Encyclopedias
81 Am. Jur. 2d, Workmen's Compensation §§ 2, 231 et seq.
[FN24] See, for example, Hinkle v H. J. Heinz Co. (1975) 462 Pa 111, 337 A2d 907
(62% loss of hearing in left ear, 32% loss of hearing in right one); Murgalo v New York
Daily News (1977, 3d Dept) 57 App Div 2d 978, 394 NY S2d 106 (45% binaural hearing loss).
[FN25] For example, in State ex rel. Hammond v Industrial Com. of Ohio (1980) 64 Ohio
St 2d 237, 18 Ohio Ops 3d 438, 416 NE2d 601, the relevant Ohio statute expressly provided that "in no case shall an award of compensation [for permanent partial disability] be made for less than permanent and total loss of hearing of one ear"; accordingly, a partial hearing loss in one ear was not compensable as a "permanent partial disability."
[FN26] See, for example, Hinkle v H. J. Heinz Co. (1975) 462 Pa 111, 337 A2d 907, in which the court reasoned that if hearing loss precipitated by one particular outburst of noise would be compensable, the remedial purposes behind the workers' compensation legislation would be frustrated if it were to deny relief to one injured by a series of similar noises, all occurring in the course of employment, but no one of which caused the injury. Viewing each outburst of noise as a miniature accident operating to break down the claimant's physical structure, the court ruled that loss of hearing resulting from protracted exposure to noise during the course of employment may constitute a compensable accident within the meaning of the applicable statute.

[FN27] Id.
[FN28] Moore v Ford Motor Co. (1959, 3d Dept) 9 App Div 2d 165, 192 NY S2d 568
(partial disability due to tinnitus in both ears upheld; claimant worked 10 to 12 feet from exhaust valve of machine that discharged compressed air with high-frequency hissing sound about 42 times per minute, and noise from that and other machines in area required him to shout to be heard by coworker five feet away).
Westlaw. © 2009 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
46 AMJUR POF 2d 221
END OF DOCUMENT
(c) 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
===++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
40 Am. Jur. Proof of Facts 2d 263
American Jurisprudence Proof of Facts 2d
Database updated July 2009
Categorical List of Articles
Hearing Loss Due to Trauma[FN*]
Robert E. Hair A.B.[FN**] and DAVID POLIN J.D.[FN***]
ARTICLE OUTLINE

I Background
§ 1 Introduction
§ 1.5 Disability law
§ 2 Anatomy and physiology
§ 3 Examining and testing for hearing loss
§ 4 Types of hearing loss—Conductive and sensorineural
§ 5 Types of hearing loss—Differentiation of sensory and neural losses
§ 6 Associated conditions and diseases
§ 7 Traumatic causes of hearing loss—Head blows or other direct trauma
§ 8 Hearing loss due to air pressure injuries
§ 9 Hearing loss due to noise
§ 10 Miscellaneous traumatic causes of hearing loss
§ 11 Treatment for hearing loss due to trauma
§ 12 Hearing aids
II Elements of Proof; Damages
§ 13 Elements of proof checklist
§ 14 Elements of damages checklist
III Proof of Perforated Eardrum with Middle Ear Involvement
A Testimony of Otolaryngologist
§ 15 History of trauma followed by hearing loss
§ 16 Physical examination
§ 17 Hearing tests
§ 18 Hearing tests—Audiometry
§ 19 Diagnosis
§ 20 Surgery
IV Proof of Mixed Hearing Loss (Longitudinal Fracture of Petrous Bone)
A Testimony of Otolaryngologist
§ 21 History of trauma
§ 22 Indications of longitudinal fracture of petrous bone
§ 23 Physical examination
§ 24 Hearing tests—Air-conduction test
§ 25 Hearing tests—Weber test and bone-conduction threshold test
§ 26 Hearing tests—Speech tests
§ 27 Hearing tests—Alternate bineural loudness balance test (ABLB)
§ 28 Hearing tests—Short increment sensitivity index test (SISI)
§ 29 Hearing tests—Tone decay test
§ 30 Hearing tests—Békésy test
§ 31 Diagnosis
§ 32 Treatment
§ 33 Prognosis; measure of permanent loss
V Proof of Sensorineural (Cochlear) Hearing Loss (Transverse Fracture of Petrous Bone)
A Testimony of Otolaryngologist
§ 34 X-rays showing transverse fracture of petrous bone
§ 35 Common consequences of transverse fracture of petrous bone
§ 36 Hearing tests

§ 37 Quantification of hearing loss
§ 38 Expert opinion as to quality of plaintiff's hearing
§ 39 Treatment; prognosis
INDEX
Acoustic trauma, § 8
Aerotitis, § 8
Air conduction— loss of,, § 4 pure-tone test,, § 24
Air pressure injury, § 8
Alternate bineural loudness balance test, § 27
Amplitude of sound, measurement of, § 3
Anatomy of ear, § 2
Audiometry, §§ 3, 18
Auditory ossicles, § 2
Auricle, § 2
Automobile accident as cause of hearing loss, § 1
Barotitis media, § 8
Békésy audiometry, §§ 27, 30
Bleeding ear, diagnostic significance of, § 22
Body structures as affecting hearing, § 1
Bone conduction— as affecting hearing,, § 2 threshold test,, § 25
Buzzing of ears, § 6
Cerebello pontine angle tumor as cause of hearing loss, § 6
Cerumen, secretion of, § 2
Comfortable listening level test, § 26
Components of ear, § 2
Concussion as cause of hearing loss, § 7
Conductive hearing loss, §§ 4, 25
Congenital defect as cause of hearing loss, §§ 4, 6
Cyst as cause of hearing loss, § 4
Damages, elements of, § 14
Decibel sensitivity of ear, §§ 1, 3
Diagnosis— of hearing loss,, §§ 19, 31, 36

of perforated eardrum,, § 19
Differentiation of hearing loss, § 5
Diplacusis, §§ 5, 36
Discomfort threshold test, § 26
Discrimination score as measure of hearing loss, § 3
Disease as affecting hearing, § 1
Double hearing, § 36
Drugs as cause of hearing loss, §§ 1, 10
Earache, § 6
Ear canal, § 2
Eardrum— anatomy of,, § 2 deficiency as to,, § 4 rupture of,, §§ 4, 11
Electrocochleography as measure of hearing loss, § 3
Elements of proof, § 13
Environmental Protection Agency, nonoccupational noise regulation by, § 9
Eustachian tube, § 2
Evoked response audiometry, § 3
Expert witness, testimony as to quality of hearing by, § 38
Explosion as cause of acoustic trauma, § 8
External ear, anatomy of, § 2
Fluid as cause of hearing loss, § 4
Foreign object as cause of hearing loss, §§ 1, 4, 10
Frequency loss as measure of hearing impairment, § 1
Grafting as treatment for ear rupture, § 11
Grinding as cause of hearing loss, § 4
Hair in ear canal, function of, § 2
Head injury as cause of hearing loss, §§ 1, 7
Hearing aids, use of, § 12
Hearing tests, see Testing as to hearing loss, infra
High-speed travel as cause of hearing loss, § 1
Hissing of ears, § 6
Impacted cerumen as cause of hearing loss, § 4
Incus— anatomy of,, § 2 treatment for injuries involving,, § 11
Infection as cause of hearing loss, § 4
Inflammation, disorder caused by, § 6
Inner ear, anatomy of, § 2
Intensity loss as measure of hearing impairment, § 1

Labyrinthitis, § 6
Live voice test, § 26
Longitudinal fractures, § 6
Loss of hearing— incidence of,, § 1 permanency of,, § 1 quantification of,, § 37
Testing as to hearing loss, infra
Loudness sensitivity, § 36
Malleus, treatment for fracture of, § 11
Measles as cause of hearing loss, § 4
Measure of hearing loss, §§ 18, 24– 25, 37– 38
Medication as cause of hearing loss, §§ 1, 10
Meniere's disease, § 6
Middle ear— anatomy of,, § 2 infection of,, § 4 structures of,, § 35 surgery involving,, §§ 20, 32
Mixed hearing loss, § 21
Myringoplasty, as treatment for ear rupture, § 11
Neural hearing loss, § 5
Noise as cause of hearing loss, § 9
Nystagmus, § 6
Occupational noise, regulation of, § 9
Opinion testimony as to quality of hearing, § 38
Otitis media, § 4
Otolaryngologist— cochlear hearing loss, testimony as to,, §§ 34– 39 mixed hearing loss, testimony as to,, §§ 21– 33 perforated eardrum, testimony as to,, §§ 15– 20
Otosclerosis, § 4
Ototix drugs as cause of hearing loss, § 10
Pathological adaptation, §§ 5, 36
Perforation of eardrum, §§ 4, 15

Permanent hearing loss, measure of, § 33
Petrous bone fracture, §§ 21, 22, 35
Physical examination— generally,, § 3 as to mixed hearing loss,, § 23 by otolaryngologist,, § 16
Physiology of ear, § 2
Pinna, § 2
Presbycusis, § 6
Pressure waves as affecting hearing, § 2
Prognosis— as to cochlear hearing loss,, § 39 as to mixed hearing loss,, § 33
Proof, elements of, § 13
Pure-tone testing, § 24
Quantification of hearing loss, § 37
Radiation as cause of hearing loss, §§ 1, 4, 10
Range of tonality perception, § 1
Recognition rate as measure of hearing loss, § 3
Recruitment— nature of,, § 4 symptoms as to,, § 36
Retrocochlear lesion, § 4
Rinne tuning fork test, §§ 3, 17
Rupture of eardrum, §§ 4, 11
Scarlet fever as cause of hearing loss, § 4
Segments of ear, § 2
Sensitivity loss as measure of hearing impairment, § 1
Sensorineural hearing loss, §§ 4, 25
Short increment sensitivity index test, § 28
Social Adequacy Index, § 33
Sparks as cause of hearing loss, § 1
Speech— discrimination test,, § 26 reception threshold,, § 3
Stapedius muscle reflex contraction, measurement of, § 3
Stapes—

anatomy of,, § 2 treatment for injuries involving,, § 11
Surgery as treatment for hearing loss, § 20
Temporal bone fracture as cause of hearing loss, § 7
Testing as to hearing loss— administration of tests,, § 17
Testing of hearing loss— air-conduction pure-tone test,, § 24 alternate bineural loudness balance test,, § 27 as to cochlear hearing loss as to mixed hearing loss,, § 24 audiometry,, §§ 3, 18, 27, 30
Békésy audiometry,, §§ 27, 30 bone-conduction threshold test,, § 25 comfortable listening level test,, § 26 decibel sensitivity,, §§ 1, 3 discomfort threshhold test,, § 26 discrimination score,, § 3 electrocochleography,, §§ 3, 36 evoked response audiometry,, § 3 for perforated eardrum,, § 17 frequency loss,, § 1 intensity loss,, § 1 live voice test,, § 26 pure-tone testing,, § 24

Rinne tuning fork test,, §§ 3, 17 short increment sensitivity index test,, § 28 social adequacy index,, § 33 speech discrimination test,, § 26 tone decay test,, §§ 27, 29 tuning fork test,, §§ 3, 17, 25 tympanometry,, § 3
Weber tuning fork test,, §§ 3, 17, 25
Therapeutic radiation as cause of hearing loss, § 1
Tinnitus, § 6
Tonality perception, range of, § 1
Tone decay— generally,, § 5 symptom of,, § 36 test as to,, §§ 27, 29
Transverse fractures, §§ 6, 35
Trauma— as cause of hearing loss,, § 7 history of,, § 15
Treatment of hearing loss— generally,, § 11 hearing aid as,, § 39 of cochlear hearing loss,, § 39 of mixed hearing loss,, § 32 surgery as,, §§ 20, 32
Tumor as cause of hearing loss, § 4
Tuning fork test, §§ 3, 17
Tympanic membrane, § 2

Tympanometry, § 3
Types of hearing loss, §§ 3, 4
Vertigo, § 6
Vestibular canal, § 2
Virol infection as cause of hearing loss, § 6
Weber tuning fork test, §§ 3, 17, 25
Welding as cause of hearing loss, § 4
X-ray of petrous bone fracture, § 34
Topic of Article:
Whether an individual suffered a hearing loss as a result of a specified traumatic event, and, if so, the nature and extent of said loss.
This question of fact may arise in a personal injury or workers' compensation action.
I. Background
§ 1. Introduction
[Cumulative Supplement]
It has been pointed out that more persons suffer from significant hearing loss than from the combined effects of heart disease, cancer, venereal disease, tuberculosis, and blindness.[FN1] High-speed travel is contributing to loss of hearing by creating an epidemic of serious injuries due to trauma. For instance, automobile accidents are now the leading cause of injury and death from the ages of one to 34 years. About 75 percent of those accidents involve the head, and when the head is injured severely the sense organ most frequently involved is the ear.[FN2]
Until comparatively recently, it was believed that loss of hearing caused by trauma to the head was permanent and irreparable because of the small size of the middle and inner ears and their location deep in the temporal bone of the skull. But it was shown in 1956 that the chain of three small bones in the middle ear could be repaired surgically with the restoration of lost hearing.[FN3] Since then, surgical techniques have been improved so that today it is usually possible to completely or partially correct hearing loss due to blockages or interruptions in the middle ear and in the external ear canal. Unfortunately, neither surgery nor medicines are available for the remedy of hearing loss caused by trauma to the inner ear, the unit of the ear that lies deepest in the skull and from which the auditory nerve leads to hearing centers in the brain. Hearing can be lost because of various forms of trauma, including blows to the head,[FN4] changes in air pressure,[FN5] prolonged exposure to noise,[FN6] and the entry of sparks or foreign bodies into the

ear.[FN7] Hearing loss may also be caused by, among external causes, therapeutic radiation of the head, and the administration of certain medicines.[FN8]
Hearing may be lost temporarily or permanently, and the extent of loss depends on the extent and type of injury to the ear mechanism.
The effects of the loss customarily are described in terms of the loss of sensitivity to the intensity (loudness) of sounds and to their frequency (tone). The sensitivity of the normal ear to loudness ranges from about zero to 140 decibels, at which level pain is felt and the ear is damaged. This means that the loudest sound that can be heard and tolerated is about 1014 (100 trillion) times as intense as the softest sound that can be heard; in terms of perceived loudness, the ratio between these two sounds is approximately 16,000 to
1.[FN9] The range of tonality perception also is extensive: from about 20 hertz (cycles per second) to 20,000 hertz.
The health status of the ear often is affected by the body structures adjacent to it—the upper jaw bone, the parotid gland, the mastoid cells of the temporal bone, the cranial cavity, and the nasopharynx (the throat above the soft palate). When one of these structures is injured or diseased, the ear also may be involved.
CUMULATIVE SUPPLEMENT
Cases:
FELA claim for failure to provide hearing protection: On railroad's motion for summary judgment on worker's FELA claim for hearing loss from exposure to locomotive horn blasts, worker established prima facie claim that railroad breached its duty of care to worker by exposing him to hazardous noise without hearing protection and that such exposure caused him permanent hearing loss; railroad worker testified that while working at the railroad yard he endured repeated exposure to train horns that caused him physical pain, he also offered evidence that he and others complained of the loud volume of the horns, and, he testified that he specifically asked his superiors for hearing protection but was denied it. Federal Employers' Liability Act, § 1, 45 U.S.C.A. § 51. Tufariello v.
Long Island R. Co., 458 F.3d 80 (2d Cir. 2006); West's Key Number Digest, Federal Civil Procedure 2497.1.
It was reasonable for legislature to require that hearing loss claims be filed within 3 years of last exposure to hazardous noise and to not apply discovery rule to hearing loss cases, and thus, under rational basis test, workers' compensation claimant's right to equal protection was not violated because his claim for hearing loss injury was not allowed to benefit from discovery rule, in light of statute providing that occupational hearing loss claim would be barred unless petition was filed within 3 years after date of last exposure to hazardous occupational noise; with last day of exposure to hazardous noise, which was normally last day of work, continuing injury to ears stopped. U.S.C.A. Const.Amend. 14; 77 P.S. § 513(8)(viii). McIlnay v. W.C.A.B. (Standard Steel), 870 A.2d 395 (Pa. Commw.
Ct. 2005), appeal denied, 885 A.2d 44 (Pa. 2005); West's Key Number Digest, Workers' Compensation 39.
[Top of Section]
[END OF SUPPLEMENT]
§ 1.5. Disability law
[Cumulative Supplement]
CUMULATIVE SUPPLEMENT

Cases:
Reasonable accommodation: School district reasonably accommodated employee suffering from tinnitus, as required by ADA, even though transfer constituted demotion and there were other, lateral transfers available which would have accommodated his needs; there was no evidence district discriminated against employee on basis of his disability when it made transfer decision. Americans with Disabilities Act of 1990, § 102(a), 42 U.S.C.A. § 12112(a). Allen v. Rapides Parish School Bd., 204 F.3d 619, 142 Ed. Law Rep.
44 (5th Cir. 2000); West's Key Number Digest, Civil Rights 173.1.
Where nurse requested transfer to another department after he determined during his probationary period that he was not able to properly perform his duties, in part because of his hearing disability, but hospital policy prohibited provisional employees from being transferred, hospital satisfied its duty under ADA (42 USCA §§ 12101 et seq.) to accommodate employee's disability when it offered him options of receiving further training or resigning and reapplying for another position in hospital, and hospital was not required to change its existing policies to accommodate nurse, since reasonable accommodation did not require hospital to provide nurse with exact accommodation he requested. Schmidt v Methodist Hosp. (1996, CA7 Ind) 89 F3d 342, 17 ADD 988, 5 AD Cas 1340.
Employer that linked hearing with safe driving bore burden of proving such nexus as part of its business necessity defense to ADA claim challenging its qualification standard that all of its package-car drivers pass Department of Transportation (DOT) hearing standard, while plaintiffs bore ultimate burden of showing that, despite their hearing disabilities, they were qualified to perform essential function of safely driving package car; in doing so, plaintiffs did not have to disprove validity of hearing standard, but had to demonstrate their safe driving ability vis-a-vis package cars. Americans with Disabilities Act of 1990, §§ 101(8), 102(a), 42 U.S.C.A.
§§ 12111(8), 12112(a); 29 C.F.R. § 1630.2(n)(1). Bates v. United Parcel Service, Inc., 511 F.3d 974, 20 A.D. Cas. (BNA) 1 (9th Cir.
2007); West's Key Number Digest, Civil Rights 1540.
Localizing sound was not major life activity with respect to which United States Marshals Service (USMS) could regard court security officer, who had hearing loss in one ear, as disabled, as required to support her Rehabilitation Act claim arising out of her termination; ability to localize sound was not comparable to "caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working" nor was ability to localize sound itself central to an individual's life. Rehabilitation Act of 1973, §§
2 et seq., 29 U.S.C.A. §§ 701 et seq. Walton v. U.S. Marshals Service, 492 F.3d 998 (9th Cir. 2007), petition for cert. filed (U.S. Sept.
24, 2007); West's Key Number Digest, Civil Rights 1218(2).
Meniere's disease: Applicant with Meniere's disease, associated hearing loss, ringing in the ears, and vertigo failed to establish that he was disabled or perceived as disabled by prospective employer, a federal agency, as required to establish prima facie claim under the
Rehabilitation Act, in connection with employer's failure to hire him; although employer perceived applicant as a safety hazard in performing certain tasks required for the position he applied for, such as working in stairwells, on ladders, and out on ledges, and applicant's physicians opined that his symptoms would prevent him from performing job he applied for, the employer's perception and physicians' restrictions were confined to the specific job for which he applied, and employer invited applicant to apply for other jobs.
Rehabilitation Act of 1973, § 7(9)(B), amended, 29 U.S.C.A. § 705(9)(B); 29 C.F.R. § 1614.203(b). McGeshick v. Principi, 357 F.3d
1146, 15 A.D. Cas. (BNA) 225 (10th Cir. 2004); West's Key Number Digest, Evidence 1218(3).
Claimant's tinnitus was a compensable partial disability under the general terms of the workers' compensation laws, even though she did not have a sensorineural loss of hearing below the decibel levels specified as disabling by the Occupational Hearing Loss Act; board-certified otolaryngologist opined that, within a reasonable degree of medical probability, claimant's tinnitus was caused by her exposure to noise at her workplace, claimant's tinnitus interfered with her ability to work, specifically causing her to have difficulty speaking with employer's customers over the phone, and caused her to keep a ticking clock nearby to mask the ringing sounds, and
"tone-matching test" revealed that ringing in claimant's ears was most closely replicated at a frequency of 4,000 Hz, the range at which her hearing loss was most pronounced, and the range that was usually affected by noise exposure. N.J.S.A. 34:15-35.10 to 34:15-
35.22, 34:15-36. Schorpp-Replogle v. New Jersey Mfrs. Ins. Co., 395 N.J. Super. 277, 928 A.2d 885 (App. Div. 2007); West's Key
Number Digest, Workers' Compensation 902.

[Top of Section]
[END OF SUPPLEMENT]
§ 2. Anatomy and physiology
The human ear is comprised of three main segments: the external ear, the air-filled middle ear, and the fluid-filled inner ear. In essence, the ear functions as the organ of hearing by converting sound waves in the air into pressure changes in the fluids of the inner ear, which in turn are changed to nerve pulses that are transmitted to hearing centers in the brain, where sound perception occurs. The inner ear also contains structures that help maintain balance.
External ear. The external ear consists of the auricle and the external ear canal.
The auricle, or pinna—the visible outer ear—is an irregular plate of elastic cartilage that is tightly covered by a thin layer of skin; an exception is the ear lobe, which has no cartilage. The auricle contributes in minor fashion to the collection of sound waves; it is too small to be a major factor in collecting the large waves heard by man. The external ear contains several undifferentiated and totally vestigial muscles that in more primitive animals are able to move the ears to point in the direction of sound sources.
The external ear canal (external auditory meatus) is a slightly S-shaped tube about one inch long. Throughout its length it is lined by thin skin. The outer one-third of the canal is underlaid by cartilage similar to that in the auricle; in the inner two-thirds, the skin of the canal rests on temporal bone, one of the main bones on both the left and right sides of the skull. At its inner end, the ear canal is closed at an angle of 55 degrees by the ear drum, or tympanic membrane, of the middle ear. Modified sweat glands in the outer one-third of the ear canal secrete a waxy, brown substance called cerumen, which keeps the skin of the canal moist, cleanses the canal as it flows outward, and probably prevents the entry of debris and other foreign objects.[FN10] Hairs in the cartilaginous (outer) portion of the canal also prevent entry of foreign objects.
Middle ear. Elements of the middle ear include the tympanic membrane (ear drum), the tympanic cavity with its chain of three small bones (auditory ossicles), and the auditory, or eustachian, tube.
The ear drum is an oval, semitransparent membrane formed by two or three layers of fibrous collagen arranged somewhat like a flat tendon. In shape, the ear drum resembles a flattened cone with its apex (umbo) pointing inward. The center of the membrane is pulled inward by the manubrium (handle) of the malleus (hammer), the largest of the three auditory ossicles, which is attached to the inner surface of the ear drum. This membrane is covered externally by a thin layer of hairless skin and internally by the mucous membrane of the tympanic cavity. Collagenous fibers are thickest in the center and around the edges of the ear drum; they are thinnest, or absent, in the area toward the top and front, which is called the flaccid region, or pars flaccida. Blood vessels and nerves reach the central portion of the membrane via a layer of connective tissue overlying the manubrium of the malleus.
The typanic cavity (tympanum) is an irregular space in the temporal bone that is filled with air. Its outer (lateral) wall consists mainly of the ear drum, and its inner wall (toward the midline of the body) is formed by the outer bony wall of the inner ear. Toward the front, the tympanic cavity is connected via the auditory tube with the mouth and nose (nasopharynx); toward the rear, the cavity is connected with the many air-filled and interconnected cavities of the mastoid process (projection) of the temporal bone. The mastoid process projects forward and downward just behind the external ear canal. The connections between the tympanic cavity and the nasopharynx and mastoid process can serve as avenues for the spread of infection to or from the middle ear. In the tympanic cavity, three interconnected small bones transmit energy from the tympanic membrane to the inner ear. As mentioned, the malleus is embedded in the inner surface of the tympanic membrane. The malleus is linked to the incus (anvil) and the latter to the stapes (stirrup), whose footplate is attached to and covers the oval window, an opening in the bony part of the inner ear. Thus the ossicles bridge the tympanic cavity from its outer wall to its inner wall. The ossicles are connected to one another by typical movable (diarthrodial) joints and are supported and held in position by small ligaments and by the mucous membrane lining the tympanic cavity. The ossicles can be moved by two small muscles whose action decreases, or dampens, the movement of the chain in response to intense sound. The tensor

muscle of the tympanum attaches to the manubrium of the malleus and draws the manubrium inwardly, thereby tightening the tympanic membrane. The stapedius muscle, which is about six millimeters (one-quarter of an inch) long and thus is the smallest skeletal muscle in the human body, attaches to the neck of the stapes and draws the base of the stapes laterally (toward the side).[FN11] Contraction of either of these two muscles increases the stiffness of the ossicular chain and of the eardrum.
Because of the efficiency with which the ossicular chain transmits energy received at the relatively large tympanic membrane and applies it to the smaller oval window, magnification of pressure results. When the chain and tympanic membrane are absent, only about one-three hundredth as much energy is transmitted.
Below and behind the oval window with its stapes attachment is the round window, which is covered by a membrane. The tympanic cavity measures about a half inch from front to rear and a half inch in height.
The auditory tube extends about four centimeters from the front wall of the tympanic cavity to the nasopharynx; the tube is directed downward toward the rear and midline; the initial one-third of the tube is formed from bone, and the remaining two-thirds toward the nasopharynx is formed of cartilage. The channel (lumen) of the tube is flattened vertically, being reduced to a slit at the junction of the bony and cartilaginous portions but then enlarging at each end. The tube is lined by mucous membrane. During swallowing, yawning, and similar acts, the cartilaginous portion of the tube opens for a short time as a reflex action to admit air to the middle ear and thus allow pressure in the tympanic cavity and external ear to equalize. It is not known if the tube is open or closed at other times.[FN12]
Inner ear. The inner ear is composed of a system of intercommunicating canals and fluid-filled membranous ducts so complex that they are sometimes called the bony and membranous labyrinths. The canals are located within the temporal bone, and the ducts are suspended in the canals; the ducts have approximately the same shape as the canals in which they are enclosed, but their diameters may be either slightly or considerably smaller than that of the canals. The inner ear is about 20 millimeters (eight-tenths of an inch) long and has three main divisions—the cochlea, vestibule, and semicircular canals. Only the cochlea is concerned with hearing; the other two divisions relate mainly to the maintenance of balance and will not be discussed here except as they relate to hearing.
The cochlea (derived from the Greek kochlos, or snail), as its name indicates, has the shape of a spiral snail shell; it makes about two and three-quarter turns around a central bony axis called the modiolus, which contains blood vessels and nerves. If it were straight, the cochlea would be about 38 millimeters (one and a half inches) long. A thin bony wall covered by a membrane (the basilar membrane) extends from the base of the cochlea to its tip and divides the cochlea into the vestibular canal (scala vestibuli) and the tympanic canal
(scala tympani), both of which are filled with a liquid called perilymph; at the tip of the cochlea the two canals join at a passageway called the helicotrema. At the base, both the vestibular and tympanic canals communicate with the middle ear through openings in the temporal bone, the vestibular opening being the oval window covered by the footplate of the stirrup while the tympanic opening is the round window, which is covered only by a thin membrane.[FN13]
Sound pressure waves are communicated between the middle ear and the inner ear through the oval window and the round window.
Pressure is communicated to the scala vestibuli by the action of the stapes on the oval window. Pressure is transmitted to the scala tympani, causing the round window to vibrate in opposite phase to the oval window. Situated between the scala vestibuli and the scala tympani is the wedge-shaped cochlear duct, which contains the organ of Corti, which converts the pressure waves into electrical energy that are transmitted to the brain by the cochlear nerve, a division of the eighth cranial nerve.[FN14] Hearing also can be produced by vibrations of the temporal bone in response to external stimuli. However, bone conduction is much less efficient than air conduction because much more energy must be expended to cause the bones of the head and hence the organ of Corti to vibrate.
The cochlear duct contains a fluid called endolymph, which differs chemically from perilymph.[FN15] The cochlear duct is closed at its tip but communicates at its base with the small bulbous saccule, one of the organs of balance in the vestibule of the inner ear. The saccule in turn communicates with the utricle, another balance organ in the vestibule; the utricle is connected with the three semicircular canals. The cochlear duct, saccule, utricle, and semicircular canals thus constitute a closed system filled with endolymph.
By contrast, the perilymph system of bony canals communicates through a small opening (cochlear aqueduct) in the base of the tympanic canal with the subarachnoid fluid in the space surrounding the brain and spinal cord.
Figure 1. FIGURE 1—OUTER AND INNER EAR
Image 1 in PDF format. Not available for Offline Print

Figure 2. FIGURE 2—SOUND TRANSMISSION TO COCHLEA
Image 2 in PDF format. Not available for Offline Print
Figure 3. FIGURE 3—COCHLEA AND ORGAN OF CORTI (Cross-section)
Image 3 in PDF format. Not available for Offline Print
§ 3. Examining and testing for hearing loss
[Cumulative Supplement]
Most cases of hearing loss may be broadly classified into three types: conductive, sensory, and neural. Conductive hearing losses are caused by lesions of the external auditory canal or the middle ear. Sensory and neural hearing losses, which are generally referred to together as sensorineural, are caused by conditions within the cochlea or the eighth cranial nerve. In diagnosing hearing loss, conductive and sensorineural losses are first distinguished, and then, if the loss is not of the conductive variety, sensory and neural causes are distinguished.[FN16]
The relative intensity (amplitude) of sounds is measured on the decibel (dB) scale. In the decibel system, an increase of 10 decibels represents a tenfold increase in amplitude. Thus, for instance, a sound level of 100 decibels is 10 to the tenth power, or 10 billion times as intense as a sound with a loudness of 0 decibels, the threshold of hearing.[FN17] Humans do not perceive the absolute mathematical differences between the intensities of different sounds; a difference of 10 decibels is normally perceived as a doubling or halving of loudness.[FN18]
The audiometer is an electronic instrument for measuring a patient's ability to hear sounds of selected frequencies delivered at selected intensities; the results are recorded on a graph called an audiogram. Hearing in each ear can be measured at frequencies from about
125 to 8,000 hertz (Hz) by both air conduction and bone conduction. In air tests, earphones are placed over the patient's ears; in bone tests, a vibrator is held against the head. A person's hearing loss is described as the difference in decibels between the faintest pure tone he can hear and the normal hearing level as established by an international standard. Young, healthy persons can hear from about
20 to 20,000 hertz, with hearing being most acute between 500 and 4,000 hertz, the range most important for understanding speech. In this latter range, a hearing loss of 30 to 40 decibels would interfere with normal conversation, and a loss of 80 decibels would prevent normal speech communication.[FN19]
Special tuning fork tests are frequently used to evaluate hearing. In the Rinne tuning fork test, the tines of a vibrating fork are held alongside the auricle of the external ear to test air conduction and then the base of the vibrating fork is placed on the mastoid process of the temporal bone behind the auricle to test bone conduction. The patient indicates the position in which the tone is louder. With normal hearing, the tone is louder and lasts about twice as long with air conduction. With a conductive hearing loss, the tone is louder and lasts about twice as long with bone conduction. When the hearing loss is sensorineural, detection of both air and bone signals is reduced, although the ratio of relative sensitivity remains as normal (that is, air conduction remains more efficient).[FN20]

The Weber tuning fork test is used to examine patients who have a loss in only one ear. In this test, a vibrating tuning fork is applied to the middle of the head, with the patient being asked to indicate the ear in which the tone is louder. If the unilateral loss is conductive, the tone is louder in the affected ear for unknown reasons. If the unilateral loss is sensorineural, the tone is louder in the unaffected ear because the tuning fork stimulates both inner ears equally.[FN21]
Another useful technique in distinguishing forms of hearing loss involves the measurements of the patient's relative recognition of words at different levels of intensity. The speech reception threshold (SRT) is the level at which the patient can successfully repeat 50 percent of the words spoken (taken from a list of phonetically balanced "spondee" words). After the SRT is determined, the patient is given another list of phonetically balanced words, spoken about 40 decibels louder than the patient's SRT. If the patient's hearing loss is conductive, his recognition rate (the "discrimination score") should be nearly 100 percent. In the case of a sensorineural loss, however, the discrimination score will remain low.[FN22]
Tympanometry is used to measure the resistance of the middle ear to the passage of sound energy. With the patient remaining quiet, a probe that both delivers and detects sound is inserted into the external ear canal to determine how much sound energy is reflected by the middle ear and how much is transmitted. With conductive hearing loss, the middle ear reflects more and absorbs less sound than normal. During tympanometry, air pressure within the external auditory canal can be increased or decreased; valuable diagnostic information may be learned from the patient's response to the changes in air pressure. For example, with normal hearing, transmission by the middle ear is greatest when air pressure in the external canal is equal to atmospheric pressure. However, when negative pressure exists in the middle ear, as may occur in a case of eustachian tube obstruction, maximum transmission occurs with negative pressure in the external canal also. In case of a discontinuity in the ossicular chain of bones within the middle ear, changes in pressure will not reveal a point of maximum transmission (compliance).[FN23]
Transmission of sound by the middle ear also can be evaluated by measuring the reflex contraction of the stapedius muscle, the small muscle attached to the stapes that dampens its movement, in response to loud sound. The contraction of the stapedius muscle is measured indirectly by measuring the difference in impedance (resistance) at the ear drum when the muscle is contracted and when it is relaxed. The reflex (nerve) arc of the muscle consists of the auditory nerve, the brainstem, and the facial (seventh cranial) nerve.
Loss of the stapedius reflex when the middle ear is intact suggests a lesion somewhere in the reflex arc.[FN24] Another technique that may be useful, particularly in evaluating individuals who cannot or will not respond voluntarily, is evoked response audiometry, in which electrodes are placed on the scalp to measure the responses of the cochlea, auditory nerve, brainstem, and hearing centers in the cortex to acoustic signals. Under normal circumstances, each structure responds in these tests at a characteristic time interval following the stimulus. An advantge of electrocochleography and evoked response audiometry is that they can be used to evaluate persons believed to be misrepresenting the presence or degree of hearing loss.[FN25]
Figure 4. FIGURE 4—WEBER AND RINNE TESTS
Image 4 in PDF format. Not available for Offline Print
CUMULATIVE SUPPLEMENT
Cases:
Testimony accepted by the workers' compensation judge (WCJ) as credible constituted substantial competent evidence supporting
WCJ's finding that claimant had a 34.7 percent work-related binaural hearing loss; otolaryngologist determined that claimant suffered from a 20.3 percent binaural hearing loss, and he opined that the most significant cause of claimant's hearing loss was his industrial noise exposure, and another otolaryngologist opined that claimant had 39.375 percent hearing impairment on right, 33.75 percent hearing impairment on left and a 34.7 percent binaural impairment, and discrepancy in results of audiograms performed by

otolaryngologists did not affect determination of permanency of claimant's hearing loss. 77 P.S. § 513. Helvetia Coal Co. v. W.C.A.B.
(Learn), 913 A.2d 326 (Pa. Commw. Ct. 2006); West's Key Number Digest, Workers' Compensation 1667.
[Top of Section]
[END OF SUPPLEMENT]
§ 4. Types of hearing loss—Conductive and sensorineural
[Cumulative Supplement]
When attempting to determine the specific cause of a hearing loss in an individual, it usually helps to first establish whether the loss is conductive (in the external ear canal or middle ear) or sensorineural (in the inner ear or auditory nerve). Even when the exact cause cannot be established, the selection of effective treatment is aided by placing the probable cause in one or the other of these two broad categories.[FN26] Usually, prognosis is much poorer for sensorineural losses because of the paucity of effective therapies available for those losses.[FN27]
There are two forms of conduction involved in normal hearing, air conduction and bone conduction. The major mode of normal hearing, however, is air conduction, and it is loss of air conduction that is usually meant by the term conductive deficit. In fact, retention of relatively normal bone conduction despite the loss of a significant degree of air conduction is a cardinal diagnostic sign of a conductive loss. The key to this method of differentiation is the fact that bone conduction is unaffected by conditions in the external and middle ear. Therefore, if testing reveals a loss of hearing by air conduction but no loss by bone conduction, a lesion of the external auditory canal or the middle ear is indicated. If the threshold is elevated in both air conduction and bone conduction tests, the loss is sensorineural—that is, in the inner ear or auditory nerve. Sometimes the loss is both conductive and senorineural, in which case the hearing threshold is elevated in both tests with the elevation being greater in air conduction than bone conduction.[FN28]
Conductive hearing losses may be as great as 60 decibels but rarely are they greater because sounds greater than 60 decibels above the hearing threshold are transmitted to the cochlea by the bones of the skull. Complete disruption of the ossicular chain in the middle ear
(for example, due to incomplete development at birth) causes a loss of only about 60 decibels. When the loss is greater than this, a secondary loss is almost always superimposed on the conductive loss. Most conductive hearing losses, including those due to trauma, can now be treated satisfactorily either with medicines or surgery.
To be categorized as an uncomplicated conductive hearing loss, a case should meet the following five conditions:[FN29]
(1) Bone conduction is normal or nearly normal.
(2) Bone conduction is at least 15 decibels better than air conduction.
(3) The hearing loss is no greater than about 60 decibels.
(4) Speech discrimination is good.
(5) Recruitment and abnormal tone decay are absent.[FN30]
Among the causes of hearing loss due to conductive deficits are obstructions of the external ear canal, eardrum deficiencies, infection of and the presence of blood and other fluids in the middle ear, and disruptions of the bony chain in the middle ear.

The external ear canal can be blocked by impacted cerumen, foreign objects, infection and fluid, cysts, and tumors. In addition, the canal may have been narrowed or otherwise formed abnormally at birth. All of these conditions can be seen by the examining physician; impacted cerumen and foreign objects can be raked out with a blunt hook.
Blows or the force of other trauma to the lower jaw (mandible) may be transmitted backward to the external ear canal, causing the forward wall of the canal to fracture and fragment, with resultant narrowing (stenosis) of the canal and reduction in hearing.[FN31]
Eardrum deficiencies include inflammation from infection, and perforation of the tympanic membrane. Any hole in the eardrum is a perforation. A rupture occurs when the membrane is perforated suddenly by a foreign object or is torn by a sudden increase in air pressure, for instance, following an explosion or slap across the ear. Small ruptures usually heal spontaneously provided infection does not develop; systemic antibiotics is the recommended treatment, with nose-blowing and unnecessary probing into the external ear canal being avoided until healing is complete. The hearing loss generally is less than 30 decibels but may reach 60 decibels if the trauma is large enough to damage the ossicular chain in the middle ear.[FN32]
A special type of eardrum rupture occurs when a direct blow to the head causes the temporal bone to fracture into the roof of the middle ear, thus causing a tear in the top of the eardrum. At the same time, the ossicular chain in the middle ear may be damaged and blood may enter the middle and external ears. Because of this presence of blood, bone conduction (as well as air conduction) is reduced until the blood is resorbed; if the temporal bone fracture involves the sensorineural mechanism (for example, the inner ear and auditory nerve), bone conduction may be reduced permanently.[FN33]
During such industrial operations as welding and grinding, a spark occasionally traverses the external ear canal and completely destroys the eardrum, leaving only the handle of the hammer (malleus) hanging down. Pain is severe although short-lived. This trauma is rarely accompanied by infection. Hearing loss is about 50 or 60 decibels.[FN34]
With some eardrum perforations, a large hole may result in only a small hearing loss. In other cases, a pinpoint perforation may cause a severe loss. Thus, it is impossible to predict the extent of hearing loss on the basis of the appearance of the eardrum. To determine if a hearing loss is due solely to perforation, the otologist can temporarily patch the perforation with Gelfoam (absorbable gelative sponge) or some other suitable man-made material. If hearing is not restored immediately, this indicates that the middle ear should be explored and that surgery to repair the eardrum by grafting (myringoplasty) would produce unsatisfactory results.[FN35]
Conductive hearing may be lost under the following conditions even though the eardrum and middle ear appear normal: otosclerosis
(fixation of the footplate of the stapes to the oval window by abnormal new bone formation), congenital and acquired defects of the bony chain in the middle ear, and malfunction of the eustachian tube that connects the middle ear and nasopharynx. Radiation of the skull, thyroid, or nasopharynx may cause congestion of the eustachian tube, which in turn causes middle ear infection (otitis media) and hearing loss of about 30 decibels. Otitis media also can be caused by measles and scarlet fever; if the disease is of sufficient severity and lasts long enough, erosion of the eardrum and ossicular chain may occur.[FN36]
CUMULATIVE SUPPLEMENT
Cases:
High and low frequency hearing losses: High frequency hearing loss and low frequency hearing loss were not separate diseases for purposes of workers' compensation law, and thus work-related noise exposure was not major contributing cause of claimant's overall hearing loss, despite physician's opinion that, even if claimant did not have non-work related low frequency hearing loss, he would still require hearing aid for high frequency hearing loss caused by noise, where claimant suffered 21.28 percent hearing loss caused by non-work related middle ear pathology, and 7.23 percent high frequency hearing loss caused by work exposure. ORS 656.802(1)(a),
(2)(a). Lecangdam v. SAIF Corp., 185 Or. App. 276, 59 P.3d 528 (2002); West's Key Number Digest, Workers' Compensation 589.
Substantial evidence supported the determination that the claimant suffered a complete loss of hearing in his right ear for all intents and purposes where the claimant testified that he had difficulty carrying on conversations without eye contact, that he could not watch television at a volume that was comfortable for other persons and that he had trouble hearing when background noise was present.
Aristech Chem. Corp. v Workmen's Compensation Appeal Bd. (Keefer) (1995, Pa Cmwlth Ct) 664 A2d 686.

[Top of Section]
[END OF SUPPLEMENT]
§ 5. Types of hearing loss—Differentiation of sensory and neural losses
Assuming that a hearing loss does not prove to be purely conductive, not being caused by one of the conditions mentioned in the preceding section, it is classified under the broad heading sensorineural. This classification includes both disorders of the cochlear structures (sensory, or cochlear losses) and of the auditory nerve (cochlear division of the eighth cranial nerve), which are called neural or retrocochlear losses.
Differentiation of sensory (cochlear) and neural (retrocochlear) types of sensorineural hearing loss is important because neural hearing losses often are caused by potentially fatal tumors at the junction of the cerebellum and pons at the base of the brain. Conversely, sensory hearing losses seldom are fatal. Sensory and neural hearing losses can be differentiated by testing for effects known as recruitment, diplacusis, and tone decay. These effects are discussed below.
Recruitment. Recruitment is an abnormally strong response to increased loudness. In testing for recruitment, the patient is asked to compare the loudness of sounds in the affected ear and the normal ear. Paradoxically, if the loss is sensory, increases in intensity beyond the threshold of hearing produce greater increases in perceived loudness in the affected ear than in the normal ear. Sounds within the normal range may be perceived as painfully loud. In cases of neural hearing loss, however, the increase in perceived loudness with each increase in actual loudness is less in the affected ear than in the normal ear; that is, the affected ear remains less sensitive than the normal ear at all loudness levels.[FN37]
An allied effect of recruitment involves the ability to detect small increases in intensity, which is evaluated by sounding a continuous tone 20 decibels above the patient's hearing threshold and then increasing the intensity by one decibel at irregular intervals over a brief period. Patients with neural hearing loss (as well as those with normal hearing) are unable to detect these small increases in intensity; however, persons with sensory hearing loss can detect 80 to 100 percent of the increases.[FN38]
Diplacusis. As is true of recruitment, diplacusis, a term derived from the Greek for "double hearing," is commonly seen when the cochlea is defective. When only one ear is affected, a single pure tone is heard as two tones or as one tone and noise. When both ears are affected, a one-tone signal is heard as a different sound in each ear.[FN39]
Tone decay. Tone decay, or pathologic adaptation, is the inability to continue hearing a continuous tone above the hearing threshold.
In contrast to recruitment and diplacusis, this inability is mild in sensory loss but is severe in neural loss. Tone decay is tested by asking the patient to respond as long as he hears a suprathreshold tone.[FN40]
As the term is commonly used, a "neural" hearing loss is one caused by a lesion of the auditory division of the eighth cranial nerve, the cochlear nerve. Lesions located within the central nervous system are referred to as central hearing disorders. Some fibers of the cochlear nerve cross over (decussate) to the opposite side of the brain as they pass through the body known as the ventral cochlear nucleus. Therefore, lesions located more centrally than this nucleus cannot cause unilateral hearing loss. If the hearing loss is due to a lesion in the auditory network of the central nervous system, the patient retains his ability to hear pure tones and speech spoken clearly in a quiet environment. But in the presence of background noise and competing speech, this ability decreases more drastically in persons with central nervous system lesions than in normal persons.[FN41]
§ 6. Associated conditions and diseases
[Cumulative Supplement]

Several conditions often are associated with, if not always directly related to, hearing loss. They include tinnitus, earache, and vertigo.
Tinnitus is a ringing, buzzing, hissing, or other sound perceived in the absence of such sound. Tinnitus may occur at intervals or it may be continuous. The cause of tinnitus is unknown. It accompanies almost all ear disorders, including those due to head trauma, acoustic trauma (such as an explosion), noise-induced hearing loss, and most other hearing losses. There is no specific treatment for tinnitus.[FN42]
Earache is caused by infections or by external or middle ear tumors that may or may not be serious enough to affect hearing. Aching also may be referred to the ear from other disease sites, such as in the nose, teeth, and tongue. If a large difference develops between air pressures in the environment and in the middle ear, the tympanic membrane may be pushed in or out and ruptured.[FN43]
Vertigo is the condition in which the patient falsely perceives that he is moving or that his environment is moving around him. As a result, he loses his equilibrium, as shown by his inability to walk a straight line. Vertigo is caused by disturbances in the equilibrium apparatus of the inner ear, including the vestibule of the inner ear, the semicircular canals (which open into the inner ear), the vestibular division of the auditory nerve, the brainstem, cranium, and the eyes. This apparatus can be affected by a large number of disorders including inflammation of the tympanic membrane (myringitis), inflammation of the middle ear (otitis media), inflammation of the inner ear (labyrinthitis), tumors of the middle or inner ears, otosclerosis, and obstructions of the external ear canal or eustachian tube. Vertigo also is present in Méniére's disease, skull fractures, and tumors of the auditory nerve and its entry pathway into the brain.
The presence of vertigo along with unilateral deafness indicates the equilibrium disturbance is in the nerve cells of the cochlea.
Headache, double vision, and weakness on one side of the body indicate the disturbance is in the central nervous system (central to the point where the auditory nerve enters the brainstem).[FN44]
Vertigo may be accompanied by nystagmus, another indicator of a possible disturbance in the labyrinth. Nystagmus is an involuntary movement of the eyeballs in a rotary, horizontal, or vertical direction either spontaneously or in response to a rapid change in the patient's position. The eyes move slowly in one direction and then quickly return to the direction of gaze. Rotary nystagmus indicates possible vestibular disease, and vertical nystagmus indicates possible brainstem disease. The eye movements in nystagmus can be observed and counted visually by the examiner, or they can be measured electrically with the patient's eyes open or closed by employing electronystagmography, in which votage differences in the eye are measured through electrodes placed on both sides of the eye.[FN45]
A number of diseases, and congenital defects, are relatively common causes of hearing loss. Among these are Méniére's disease, bacterial and viral infections, and cerebellopontine angle tumors. These conditions are individually discussed briefly below.
Méniére's disease can cause recurrent hearing loss in one or both ears, as well as vertigo and tinnitus. The cause of this disease is unknown, and there is no specific treatment. Vertigo comes on suddenly, lasts for a few to 24 hours, and then gradually disappears. As attacks continue over the years, the hearing loss becomes more severe.[FN46]
Microorganisms may invade and infect the inner ear (thus causing labyrinthitis) by entering through the oval and round windows during acute otitis media (middle ear infection) or through the cochlear aqueduct during meningitis (inflammation of the membranes, or meninges, that cover the spinal cord and brain). Complete loss of hearing in one ear results, along with severe vertigo. In chronic cases, the face may be paralyzed. Treatment consists of antibiotics, drainage of the inner ear, and removal of any infected portions of the mastoid bone.[FN47]
Viral infections of the inner ear are believed to cause sudden loss of hearing in about one in every 5,000 persons each year. The viruses involved are those of mumps, measles, influenza, chickenpox, mononucleosis, and certain of those viruses (adenoviruses) that infect the upper respiratory tract. Most of the patients are children and young or middle-aged adults.[FN48]
A small benign tumor ("cerebellopontine angle tumor") of the auditory nerve can arise near the point where the nerve enters the base of the brain at the junction of the cerebellum and pons. As the tumor grows in size, it compresses the cerebellum and brainstem. Early symptoms are a slowly progressing unilateral hearing loss and tinnitus, followed by dizziness. The hearing loss is characterized by marked tone decay, a larger loss of speech discrimination than is caused by a lesion of the cochlea, greatly decreased ability to recognize small increments in sound intensity, and absence of recruitment. As the tumor continues to increase in size, the fifth

(trigeminal) and seventh (facial) cranial nerves become involved, producing a number of symptoms. Diagnosis is made on the basis of symptoms plus computerized tomography and myelography (X-rays made of the spine or skull after a radiopaque material is injected into the subarachnoid space in the spine by lumbar puncture). Treatment is surgical removal of the tumor.[FN49] The success rate of surgical treatment of these tumors is related to the size of the tumor. With small tumors, there is a low rate of mortality and a high rate of cures; with larger tumors, however, the mortality rate may approach 20 percent, and many patients have residual neurologic deficits.[FN50]
Congenital defects in the inner ear may be due to rubella (German measles) virus invasion during the first trimester of pregnancy, lack of oxygen (anoxia) during birth, bleeding into the middle ear due to trauma to the base of the skull during birth, administration of ototoxic drugs to the mother during pregnancy, hemolytic anemia (erythroblastosis fetalis) of the fetus, and various inherited conditions, such as albinism (lack of pigment in the hair, eyes, and skin).[FN51] With increasing age, the hearing of many people becomes less acute bilaterally due to changes in the inner ear; this condition is called presbycusis. These changes are believed to include stiffening of the basilar membrane and degeneration of sensory cells and nerve fibers at the base of the cochlea. In a typical case of presbycusis, losses are most severe in the higher frequencies, ranging from perhaps 10 decibels at 250 Hz to 60 decibels or more at 2000–4000 Hz. Since 4000 Hz represents approximately the upper limit of the normal speaking range, presbycusis will not seriously affect the ability to understand speech until the condition reaches a fairly advanced stage.[FN52]
CUMULATIVE SUPPLEMENT
Cases:
In Dotolo v FMC Corp. (1985, Minn) 375 NW2d 25, it was held that tinnitus caused by on-the-job exposure to noise is a compensable trauma under the Minnesota workers' compensation act, and that depression caused or aggravated by that tinnitus is likewise compensable. It was also held, however, that the injured employee's refusal to undertake certain treatments intended to ameliorate the effects of tinnitus (although not to cure it) was just cause for the suspension of workers' compensation benefits.
See Tee-Pak, Inc. v Industrial Com. of Illinois (1986, 4th Dist) 141 Ill App 3d 520, 95 Ill Dec 697, 490 NE2d 170, in which an employee was ruled totally and permanently disabled by a head injury at work, as a result of which he suffered hearing loss and tinnitus, which in turn caused headaches, nausea, and vomiting, the totality of these symptoms rendering the victim suicidal and requiring treatment with an antidepressant, which resulted in further disabling side effects.
Tinnitus, often described as "ringing in the ears," qualifies as a compensable partial disability under the general terms of the workers' compensation laws, irrespective of whether the employee also suffers from an accompanying hearing loss compensable under the
Occupational Hearing Loss Act, so long as tinnitus is (1) due in a material degree to exposure to harmful workplace noise, (2) materially impairs employee's working ability or is otherwise serious in extent, and (3) is corroborated by objective medical indicia despite the predominantly-subjective character of the affliction. N.J.S.A. 34:15-35.10 to 34:15-35.22, 34:15-36. Schorpp-Replogle v.
New Jersey Mfrs. Ins. Co., 395 N.J. Super. 277, 928 A.2d 885 (App. Div. 2007); West's Key Number Digest, Workers' Compensation
902.
Combined occupational disease and traumatic hearing loss: State Insurance Fund was not required to produce report regarding apportionment between workers' compensation claimant's occupational disease and traumatic hearing loss, even though Fund had previously been found liable for claimant's occupational disease resulting in bilateral hearing loss, where claimant did not assert claim for traumatic hearing loss in his original claim, claimant did not remove himself from noise exposure until two years after establishing claim for medical treatment, and Fund did not cover employer on worker's date of disablement. McKinney's Workers' Compensation
Law § 49-bb. Estrada v. Peepels Mechanical Corp., 30 A.D.3d 659, 817 N.Y.S.2d 401 (3d Dep't 2006); West's Key Number Digest,
Workers' Compensation 1686.
Tinnitus diagnosis: Otolaryngologist's diagnosis of driver's tinnitus, which derived solely from driver's subjective complaints, was insufficient to raise triable issue fact as to whether driver suffered serious injury for purposes of no-fault law's threshold for tort

recovery. McKinney's Insurance Law § 5102(d). Congdon v. Preisman, 693 N.Y.S.2d 757 (App. Div. 3d Dep't 1999); West's Key
Number Digest, Automobiles 251.15.
Tinnitus; causation: Testimony of defendant's expert was properly excluded on issue of causation of plaintiff's tinnitus in action arising out of automobile accident, where expert, who had doctorate in pharmacy, identified six medications taken by plaintiff as possibly causing tinnitus as side effect but conceded he could not state any of the medications most probably caused plaintiff's tinnitus, and thus he was not qualified to testify that tinnitus was caused by drugs. Payton v. Kearse, 329 S.C. 51, 495 S.E.2d 205
(1998).
[Top of Section]
[END OF SUPPLEMENT]
§ 7. Traumatic causes of hearing loss—Head blows or other direct trauma
[Cumulative Supplement]
When the head is severely injured, the sense organ most frequently damaged is the ear.[FN53] Head injuries that affect hearing often involve fractures of the temporal bone, in which the ear is located. Temporal bone fractures are generally divided into two types: longitudinal and transverse. Longitudinal fractures generally result from a blow to the region of the temple or above and behind the temple. The fracture line is confined to the so-called petrous pyramid, the very thick region of the temporal bone above the external ear. Transverse fractures tend to originate near the lower rear portion of the skull, with a fracture line running through the temporal bone to the vicinity of the sphenoid bone, in front of the temporal bone. Approximately 70 to 80 percent of temporal bone fractures are longitudinal fractures, which are likely to result in damage to the middle ear, the eardrum, and the external ear canal. Transverse fractures are most damaging to the inner ear and the nearby facial nerve; about half of these fractures result in facial paralysis.[FN54]
Injuries to the external and middle ear are frequently reparable by modern surgical techniques, if necessary. Injuries to the inner ear, however, are often irreversible; more progress has been made in the surgical correction of vestibular (relating to equilibrium) dysfunction than in the correction of hearing loss resulting from lesions of the inner ear.
In the paragraphs that follow, the effects of trauma to the head are considered in relation to the particular parts of the ear.
External ear canal. If blood or a liquid discharge is present in the external ear canal, the canal should be examined with an otoscopic microscope under aseptic (sterile) conditions to determine the site and extent of injury. The external ear canal seldom is injured alone.
Blood in the external ear may indicate a fracture of the temporal bone, but the source of the blood also can be a cut in the external ear, a tear in the skin lining the external ear canal, or a rupture of the tympanic membrane. A blow to the lower jaw bone (mandible) may drive that bone back through the forward wall of the external ear canal, collapsing the wall and occluding the canal. In other cases, one of the ossicles in the bony chain of the middle ear may protrude backward into the external ear canal and block it.[FN55]
Middle ear. A longitudinal temporal bone fracture may cause an obvious break that runs in the upper portion of the posterior wall of the external ear canal and extends into the middle ear. The meningeal (membraneous) barrier between the brain and the roof of the middle ear also may be broken, permitting cerebrospinal fluid to leak from the brain into the middle ear; these leaks usually heal spontaneously, but those lasting longer than two weeks have to be repaired surgically. Before the meningeal barrier is closed, severe infection may develop and spread into the brain (causing meningitis) and inner ear (causing labyrinthitis). Fractures in the middle ear therefore should always be evaluated to determine if they extend into these adjacent structures. Vessels in the mucous membrane lining the middle ear may bleed as a result of being cut by displaced parts of the ossicular chain, by buckling of the walls of the middle

ear during stress, or by air blasts. Blood in the middle ear without tympanic membrane rupture or fracture of the external ear canal wall also may be caused by a transverse fracture on the medial (toward the midline of the body) wall of the middle ear.[FN56]
The more serious pathological conditions of the middle ear resulting from trauma include separation of the joint between the anvil
(incus) and stirrup (stapes), displacement of the incus, fracture and displacement of the stapes, and fracture and displacement of the hammer (malleus).[FN57]
The joint between the anvil and stirrup is the part of the ossicular chain most vulnerable to damage from any cause, including temporal bone fracture, entry of foreign bodies, air blasts, and inflammation. When skull fractures are severe enough to produce conductive hearing loss, separation of the incudostapedial joint has been found in over 92 percent of the cases.[FN58] It is theorized that the joint can be separated by vibrations caused by blows to the head, by the effects of inertia during violent motion, by relatively powerful tetanic contractions of the muscles attached to the stapes and malleus, and by torsion caused when a wall of the middle ear fractures.
Torsion also can occur as a result of deformation in concussion or compression injuries without fracture.
Because the incus is the only ossicle not anchored by muscle, it is the weakest link in the ossicular chain; it is easily displaced from its normal position by the relatively large forces at work during head trauma. It has been found that in 58 percent of longitudinal temporal bone fractures sufficient to disrupt the ossicular chain the incus is displaced—that is, the incus is detached from its articulations with the malleus and stapes and from its attachment with the fossa incudus, a groove on the back wall of the middle ear. After head trauma, the incus may even be missing.[FN59]
The same forces that cause the incudostapedial joint to separate may severely damage the stapes. In patients with mixed longitudinal and transverse temporal bone fractures, breaks around the oval window in the wall between the middle and inner ears may displace the stapes from its attachment to the window or break the arch of the stapes where its two legs (crura) extend out from the footplate.
Detachment of the stapes from the oval window allows perilymph to flow from the inner ear into the middle ear; the presence of fluid in the middle ear then disturbs equilibrium and gait as well as hearing. When skull fractures disrupt the ossicular chain, about 30 percent of the patients have stapedial fracture or displacement.[FN60]
The malleus may be displaced and its neck fractured as an accompaniment to severe fractures or displacement of the incus and stapes.
About 10 percent of longitudinal temporal bone fractures involve malleus fracture and displacement. The head of the malleus may be displaced upward into the intracranial cavity, downward into the main chamber of the middle ear, or it may be missing.[FN61]
Inner ear. Concussion as well as temporal bone fracture can cause severe damage to the inner ear. A blow to the head can create violent shock waves in the cochlea of the inner ear, and fractures can cause mechanical separations in the organ of Corti and other parts of the cochlea. In all head trauma strong enough to fracture the temporal bone, some degree of sensorineural hearing loss probably will result.[FN62]
Auditory neural pathway. As a result of head trauma, the auditory nerve leading from the inner ear to the brain may be damaged, as may the auditory pathway and the hearing centers in the brain. These injuries are believed to result from severe stresses and strains due to inertia during rapid acceleration or rapid deceleration. Blood vessels may be stretched or torn, and nerve cells may be bruised by the inertial forces. The auditory nerve is particularly vulnerable because its position is fixed in the inner ear at the nerve's outer end and is fixed at the brainstem at its inner end. Hearing loss will be temporary if the auditory pathway can be spontaneously repaired before cells die—for example, if the auditory nerve is stretched rather than torn, and its blood supply remains intact or can be restored.
If the auditory pathway and its blood supply are damaged too severly to be repaired by natural processes in about a week, any hearing loss will be permanent.[FN63]
CUMULATIVE SUPPLEMENT
Cases:
Workers' compensation claimant's tinnitis was proximately caused by his work-related automobile accident and compensable under the Workers' Compensation Act, which tinnitis caused claimant to be so devoid of his normal judgment that his subsequent act of suicide was not intentional, and therefore, claimant's employer was required to pay all of the claimant's outstanding temporary total

disability (TDD) benefits as well as death benefits. West's Ga.Code Ann. § 34-9-17(a). Bayer Corp. v. Lassiter, 282 Ga. App. 346, 638
S.E.2d 812 (2006); West's Key Number Digest, Workers' Compensation 589.
[Top of Section]
[END OF SUPPLEMENT]
§ 8. Hearing loss due to air pressure injuries
[Cumulative Supplement]
The middle ear and its tympanic membrane can be damaged by sudden increases or decreases in air pressure (acoustic trauma), during which pressure on the two sides of the membrane is not equalized. For example, if pressure is not equalized during the rapid descent of an airplane, pressure outside the middle ear will be greater than within; consequently, the tympanic membrane will be forced inward by the pressure differential and fluid will form in the middle ear after seeping out of the blood vessels in the mucous membrane lining the middle ear. Large pressure differences can cause these vessels to rupture and bleed freely, and the tympanic membrane also may rupture, resulting in severe pain, infection, and conductive hearing loss.[FN64]
The probability for injuring the middle ear by pressure differentials (the symptom complex is called barotitis media, or aerotitis) is increased if the eustachian tube is not functioning properly—that is, not allowing air into the middle ear so the internal and environmental pressures can equalize. The eustachian tube may malfunction in an upper respiratory infection or allergy. Persons with such infections or allergies should not subject themselves to sudden changes in pressure, such as are encountered during flying or deep sea diving.[FN65] Chewing gum or eating hard candy during aircraft descents tends to open the eustachian tube, as will antihistamines and nasal decongestants taken before rapid changes in pressure.[FN66]
The amount of hearing lost during acoustic trauma depends on the intensity and duration of the trauma and the sensitivity of the ear. In most cases, hearing returns to normal within a few months. Any permanent loss usually is mild, restricted to the higher frequencies, and confined to one ear (usually the one closest to the source). In exposure to major acoustic trauma, such as large explosions, it is more likely that the permanent loss in the two ears will be equal. The audiometric pattern in loss due to acoustic trauma is similar to that of noise-induced hearing loss.[FN67]
CUMULATIVE SUPPLEMENT
Cases:
Evidence was sufficient to support jury's finding that mild hearing impairment in motorist's left ear was not caused by automobile accident; treating physician admitted that motorist's hearing loss could have been caused by something other than the air bag, and physician who conducted independent examination testified that in his experience, air bag injury results in very early onset of hearing loss, and motorist did not complain of hearing loss until four months after the accident. Bernard v. Guilbeau, 922 So. 2d 683 (La. Ct.
App. 3d Cir. 2006); West's Key Number Digest, Damages 185(1).
[Top of Section]

[END OF SUPPLEMENT]
§ 9. Hearing loss due to noise
[Cumulative Supplement]
The inner ear can be damaged temporarily or permanently by any noise with an intensity greater than 85 decibels. Sources of intense noise include heavy machinery, aircraft, and woodworking equipment. Loss occurs first at about 4,000 Hz and then gradually moves to the higher and lower frequencies if exposure continues. Hearing loss of this type can be prevented by reducing the intensity of the noise, reducing the length of exposure to the noise, and by the use of plastic or rubber plugs in the external ear canal or glycerin-filled cups or similar protectors over the ears.[FN68]
It has been estimated that about one out of every 10 persons in the United States is exposed to noise of sufficient intensity and duration to cause permanent hearing loss by destroying the sensory hair cells in the cochlea. An estimated 15,000,000 of these persons are workers exposed on the job—for instance, at factories, construction sites, and mines as well as in agricultural and transportation occupations. Most hearing lost to noise is lost gradually during the first five to seven years of exposure.[FN69]
In the U.S. federal government, the National Institute of Occupational Safety and Health in the Department of Health and Human
Services studies noise and hearing and advises the Occupational Safety and Health Administration (OSHA) in the Department of
Labor. Noise standards for industry are developed and enforced by OSHA.[FN70]
The Environmental Protection Agency regulates nonoccupational noise.[FN71]
CUMULATIVE SUPPLEMENT
Cases:
Expert testimony was not required to establish element of railroad worker's FELA claim that his hearing loss was caused by his exposure to sound of train horns; connection between very loud sounds and hearing loss was generally understood. Federal Employers'
Liability Act, § 1, 45 U.S.C.A. § 51; Fed.Rules Evid.Rule 701, 28 U.S.C.A. Tufariello v. Long Island R. Co., 458 F.3d 80 (2d Cir.
2006); West's Key Number Digest, Labor and Employment 2881.
Sheet metal worker who was allegedly injured in railyard by high-pitched, shrill noise when railroad cars were pushed through
"retarder," which is designed to slow rail car's motion, failed to prove employer's negligence; he failed to prove retarder was defective, retarder was properly in yard and properly served its purpose, employer was not obligated to provide its workers with hearing protection and worker acknowledged that ear guards were not feasible because railyard workers need to hear oncoming trains to avoid accidents, employer had no notice of defect in retarder and was unaware that it was capable of suddenly producing extraordinary, onetime noise, and there was no evidence that inspection of retarder would have disclosed defect capable of producing loud noise or that incident was reasonably foreseeable by employer. Brown v CSX Transp. (1994, CA4 W Va) 18 F3d 245.
Finding that claimant was not exposed to injurious stimuli when he worked for subsequent employer and that prior maritime employer was responsible for his hearing loss under LHWCA was supported by substantial evidence. Claimant was employed by prior employer as welder and crane operator and was continuously exposed five to seven days per week to injurious noise emitted from chipping hammers, chains, and ship fitters in workplace, whereas claimant worked as stevedore for subsequent employer for three to four

weeks, between two to six hours per day, unloading bananas from conveyor belt, occasionally near forklift. Prior employer, who did not contest claimant's exposure to injurious exposure at its workplace, did not show subsequent injurious exposure at second place of employment. Claimant testified that noise environment at subsequent employer was "just like around town," and only evidence offered by prior employer was expert medical witness's response to hypothetical question of dubious accuracy and completeness. Avondale
Industries, Inc. v Director, Office of Workers' Compensation Programs (CA5, 1992) 977 F2d 186, digest op at (CA5) 1993 AMC
2110.
Concert promoter and owner of theater in which band's drummer allegedly incurred damage to his hearing as result of faulty sound system was not subject to strict liability for any defect in system, as it was not seller of system, nor was it liable for any negligence of sound system operator, independent contractor. Drummer claimed that, after he signaled to sound crew that he needed more volume from speaker near his head, volume from speaker shot upward, knocking drummer from his stool and causing hearing loss and permanent ear damage. Summary judgment for promoter was affirmed because drummer at first failed to produce any evidence showing that sound blast had occurred and produced affidavits from other band members to that effect only on motion to reconsider.
Promoter was not subject to negligence liability because, even assuming that it had duty to provide properly functioning sound system, drummer had failed to offer any evidence that system had malfunctioned. Nor was it subject to strict liability, as it did not manufacture or sell sound systems and was lessee, rather than lessor, of such systems. Green v Whiteco Indus. (1994, CA7 Ind) 17 F3d 199, CCH
Prod Liab Rep ¶13783.
Finding that employer exposed LHWCA claimant to injurious levels of noise on certain night when claimant operated crane, and that liability thus fell on such employer rather than on prior employer for whom claimant had operated crane four nights earlier, was supported by substantial evidence, including claimant's testimony regarding noises he generally heard when operating crane, and his testimony that prior employer's cranes were less noisy than crane he operated for the other employer. Longshore and Harbor Workers'
Compensation Act, §§ 1 et seq., 33 U.S.C.A. §§ 901 et seq. Jones Stevedoring Co. v. Director, Office of Workers' Compensation
Programs, 133 F.3d 683 (9th Cir. 1997).
Employer committed "willful" violation of OSHA within meaning of § 666 by intentionally choosing to proceed at variance with
OSHA regulations protecting employees from noise, even if employer acted in good-faith belief that its alternative safety program was superior to OSHA program. Martin v Trinity Indus. (1994, CA11) 16 F3d 1149, 16 BNA OSHC 1670, 1994 CCH OSHD ¶30374, 28
FR Serv 3d 503, 8 FLW Fed C 29.
With respect to suit by seaman seeking damages for hearing loss resulting from continued exposure to high noise level while working in vessel's engine room, statute of limitations did not begin to run, pursuant to continuing tort theory, until plaintiff ceased working for employer in capacity involving exposure to loud noises. Santiago v Lykes Bros. S.S. Co. (CA11 Ala, 1993) 986 F2d 423, 1993 AMC
1935, 7 FLW Fed C 111.
Locomotive horns: Railroad employee failed to establish prima facie case of negligence under FELA, with respect to locomotive horns, which allegedly caused him hearing loss, in that he presented no objective measurements of sound levels, and instead relied on employees' opinions that horns were "very, very loud" and opinion of expert who presented no analysis of noise levels actually experienced by employee. Federal Employers' Liability Act, §§ 1 et seq., 45 U.S.C.A. §§ 51 et seq. Tufariello v. Long Island R.R. Co.,
364 F. Supp. 2d 252 (E.D. N.Y. 2005); West's Key Number Digest, Labor and Employment 2874.
Train whistle under bridge: Railroad was not liable for state employee's ear damage due to train's whistle blowing as it passed under bridge which employee was repairing; railroad had no duty to supervise the state employee, had no control of the work site, and fully complied with all the applicable rules and regulations regarding the operation of the train. Taylor v. Consolidated Rail Corp., 166 F.
Supp. 2d 652 (N.D. N.Y. 2001); West's Key Number Digest, Railroads 367.
Airport tarmac: Airline and airport did not have duty to determine that those who worked near jets were adequately protected from noise before jet began its journey; airline catering service employee, who sustained injury, had obligation to conform his activity to ordinary operation of jet and jet was being operated in ordinary, customary, and appropriate manner. Gravois v. Delta Airlines, Inc.,
797 So. 2d 686 (La. Ct. App. 1st Cir. 2000), writ denied, 769 So. 2d 545 (La. 2000); West's Key Number Digest, Aviation 144.
Fire siren tested inside firehouse: Hearing loss sustained by fire captain, when crew member activated air horn and siren on fire engine inside firehouse during routine inspection, occurred as result of risk inherent in captain's job and thus was not accidental, as required to support award of accidental disability retirement allowance under policemen's and firemen's retirement system; inspection of fire

engine apparatus was both required and expected on that day, and although captain indicated that it was customary to run engine when testing horn and that neither horn nor siren were to be sounded while inside firehouse, there was no proof that these provisions were part of established, required procedure. McKinney's Retirement and Social Security Law § 363. LaBella v. Hevesi, 27 A.D.3d 939,
810 N.Y.S.2d 603 (3d Dep't 2006); West's Key Number Digest, Municipal Corporations 200(5).
In workers' compensation proceeding, claimant failed to establish a causal link between her hearing loss and her employment as a 911 dispatcher; while claimant stated she was exposed to 911 callers yelling over her headset, as well as police and fire sirens when she was speaking with emergency personnel, claimant had suffered from recurrent ear infections as a child and such infections continued into adulthood, headset used by claimant was connected to amplifier that had a volume control, and physician opined that it was unlikely that claimant's hearing loss was caused by noise exposure. West's N.C.G.S.A. § 97-53(28). Strezinski v. City of Greensboro,
654 S.E.2d 263 (N.C. Ct. App. 2007); West's Key Number Digest, Workers' Compensation 1553.
Trial court properly apportioned worker's hearing loss between current and past employers where hearing loss was caused by worker's exposure to loud noises as result of his employment as pipefitter over period of 43 years, including his current employment for period of 3 months. "Last injurious exposure" rule, under which last employment that bears causal relationship to claimant's occupational disease is deemed to have caused disease, did not apply, since hearing loss resulting from prolonged exposure to loud or concussive noise is "accidental injury," not "occupational disease," and legislature had clearly limited application of last injurious exposure rule to occupational disease alone. Pauley v Lummus Constr. (1992, Okla App) 836 P2d 692.
Substantial evidence supported Workers' Compensation Board's findings that claimant's hearing loss due to many years of employment with multiple forest product employers was work related and that presumptive responsibility for claimant's loss should rest with employer who employed claimant at time he first sought treatment for condition under last injurious exposure rule. Norstadt v. Murphy Plywood/Liberty Northwest Ins. Corp., 148 Or. App. 484, 941 P.2d 1030 (1997), opinion modified on reconsideration, 150
Or. App. 245, 1997 WL 595279 (1997).
Earlier employer, rather than later employer, was responsible for workers' compensation claimant's occupational disease—that is, hearing loss. Earlier employer was initially responsible for claimant's condition where earlier employer was claimant's employer at time he first sought medical treatment for his hearing loss and where claimant did not lose time from work as result of his hearing loss, and responsibility did not shift to later employer since evidence failed to show that work exposure at later employer actually contributed to worsening of claimant's condition. Oregon Boiler Works v Lott (1992) 115 Or App 70, 836 P2d 756.
Firefighters were not entitled to bring a class action based on alleged hearing loss suffered as a result of allegedly defective sirens since, although the firefighters were all exposed to the fire siren, the remaining questions of fact and law were unique to each person's circumstances, i.e., the type of hearing loss, the cause of the hearing loss, other contributing factors such as age, heredity and disease, and individual circumstances such as exposure to explosions or weapon fire and diseases such as Lyme disease and syphilis. Hanson v
Federal Signal Corp. (1996, Pa Super) 679 A2d 785.
Hazardous occupation noise: Workers' compensation statute providing that whether the employee has been exposed to hazardous occupational noise or has long-term exposure to such noise shall be affirmative defenses to a claim for occupational hearing loss and not a part of the claimant's burden of proof in a claim, in combination with the definition of "hazardous occupation noise," delineates the permissible noise exposure levels. 77 P.S. §§ 25.4, 513(8)(x). General Elec. Co. v. W.C.A.B. (Rizzo), 737 A.2d 852 (Pa. Commw.
Ct. 1999), reconsideration granted, (July 9, 1999); West's Key Number Digest, Workers' Compensation 902.
[Top of Section]
[END OF SUPPLEMENT]
§ 10. Miscellaneous traumatic causes of hearing loss

[Cumulative Supplement]
There are several miscellaneous forms of trauma that can cause the loss of hearing indirectly, as distinguished from the more direct causes such as blows to the head and prolonged exposure to noise. These miscellaneous causes include ototoxic drugs, the entry of foreign bodies into the ear, and radiation to the head and neck.
Ototoxic drugs. Certain medications, as a side effect to their main action, tend to damage the structures of the inner ear, particularly the organ of Corti. Since they are eliminated through the kidneys, these drugs can attain damaging levels in the blood if kidney function is impaired, with permanent and complete hearing loss being a possible result. Ototoxic drugs include the salicylates (for example, aspirin), aminoglycoside antibiotics (for example, streptomycin, neomycin), natural and synthetic quinine, and the diuretics furosemide and ethacrynic acid. When such drugs are administered to elderly persons or anyone with a preexisting hearing loss, the patient should be monitored daily to see that the recommended blood level of the drug is not exceeded.[FN72]
Foreign bodies. The entry of foreign bodies into the external ear canal presents a common problem, especially in young children.
Beans, beads, and various other objects may be placed in the canal, and various small insects may enter of their own accord. If the foreign body moves inward far enough, the tympanic membrane and ossicles of the middle ear can be damaged. The foreign bodies, as pointed out previously, should be removed by being raked out with a blunt right-angle hook after positioning the hook behind the object. Attempts to removed round, hard objects with a forceps may force the objects farther into the canal. Living insects should first be killed by filling the ear canal with mineral oil and then removing them with a forceps. In difficult cases, removal may have to be done under general anesthesia.[FN73]
Radiation. Radiation of the ear and other parts of the head and neck has been reported to cause conductive, sensorineural, and mixed hearing loss. Onset has been delayed for as long as six years after administration of the X-rays. Damage has been shown to occur in the ossicles of the middle ear and in the basilar membrane and other parts of the inner ear. In the case of children, it has been suggested that the hearing be tested before and after the administration of cranial radiation and annually thereafter for at least five years.[FN74]
TABLE 1—TYPICAL SOUND LEVELS IN dB(A)[FN*]
Decibels
0 .. Weakest audible sound
10
20 .. Quiet bedroom
30
40
50 .. Insulated lounge
60
70
80 .. Manual machining
90 .. 50 KW air-cooled electric motor
95 .. Drop press
100
105 .. Spray painting
110 .. Power saw
115 .. Coarse grinding
120
125 .. Threshold of pain

130
140
145 .. Jet plane at takeoff
[FN*] The dB(A) scale is "weighted" according to the sensitivity of the human ear to varying frequencies.
TABLE 2—OSHA STANDARDS FOR NOISE EXPOSURE IN THE WORKPLACE
Hours of exposure
8 90
6 92
4 95
3 97
2 100
1.5 102
1 105
0.5 110
0.25 115
Impulse noise 140
[FN*] The dB(A) scale is "weighted" according to the sensitivity of the human ear to varying frequencies.
Source for tables: U.S. Department of Labor, Occupational Safety and Health Administration, Noise Control—A Guide for Workers and Employees (1980).
CUMULATIVE SUPPLEMENT
Cases:
The Illinois Court of Appeals affirmed jury verdicts in favor of the defendant physicians, and a directed verdict in favor of the defendant hospital, in the case of a plaintiff who alleged that she suffered loss of balance as a result of the administration of gentamicin and lasix (a diuretic), both of which are ototoxic. The appellate court ruled that the plaintiff's failure to present expert evidence on the issue of the hospital's standard of care was fatal to her case. The proper standard of care, and the breach thereof, were not established by the introduction of a package insert and PDR warnings on gentamicin, nor by a general reliance, without citation of any specific standard, on the standards of the Joint Commission on Accreditation of Hospitals. Mielke v Condell Memorial Hospital
(1984) 124 Ill App 3d 42, 79 Ill Dec 78, 463 NE2d 216.
Motivational air horn: Supervisor was acting within scope of his employment when he sounded boat horn, and thus, supervisor was entitled to workers' compensation immunity in negligence action brought by employee, who alleged that she suffered serious hearing loss and permanent nerve damage as result of supervisor's sounding horn within one foot of employee; use of boat horns in workplace was part of overall plan to motivate employees and to provide for a more fun and exciting environment in the office, and there was no evidence indicating that supervisor sounded the horn while knowing that employee was nearby and could be injured from the noise.

KRS 342.690. Haines v. BellSouth Telecommunications, Inc., 133 S.W.3d 497 (Ky. Ct. App. 2004); West's Key Number Digest,
Evidence 2168.
Welder: Industrial Code provision requiring that all persons engaged in welding and flame cutting operations be provided with approved eye protection suitable for work involved and appropriate protective apparel furnished basis for Labor Law liability for ear injuries sustained by welder on construction site, who alleged that he should have been given face shield in addition to burning goggles he was provided. McKinney's Labor Law § 241(6); 12 NYCRR 23-1.25(d). Brady v. City of New York, 52 A.D.3d 331, 859
N.Y.S.2d 193 (1st Dep't 2008); West's Key Number Digest, Negligence 1204(5).
Coemployee was entitled to summary judgment on basis of exclusivity provision of New York CLS Work Comp § 29 where (1) plaintiff (forensic chemist) suffered ear injury as result of firing of gun at public safety laboratory by coemployee, (2) firing occurred during employment, (3) handling weapons was part of duties of forensic chemist, (4) although firing of gun was not part of coemployee's job responsibilities, his act of firing gun was horseplay or prank, and (5) coemployee did not act with intent to injure plaintiff. Le Doux v Rochester (1990, 4th Dept) 162 AD2d 1049, 557 NYS2d 821.
Verdict against manufacturer of ammunition was affirmed in negligence action by consumer who purchased box of Remington .270 caliber rifle shells which allegedly contained .308 caliber shell that closely resembled .270 shell required in plaintiff's rifle. When plaintiff fired weapon with .308 shell, it exploded, causing some hearing loss and minor head injury. All parties assumed that this was result of tampering by some unknown person with package, which was unsealed and designed for easy opening to allow purchasers to inspect shells individually. .308 shell was approximately one-half inch shorter than .270, but this difference was concealed by packaging used by manufacturer. Plaintiff was adjudged negligent in failing to check markings on shell, which would have identified wrong caliber shell. However, close examination of markings would not have been necessary if packaging had made length disparity obvious. Thus, jury's finding that plaintiff and manufacturer were equally negligent was supported by evidence. Morrison v
Remington Arms Co. (1993, Wis App) CCH Prod Liab Rep ¶13679.
[Top of Section]
[END OF SUPPLEMENT]
§ 11. Treatment for hearing loss due to trauma
In severe injuries involving head trauma, the initial and primary concern often is the preservation of life by maintaining the air supply and the circulation of blood. Treatment of hearing loss usually can be delayed for weeks, if necessary, until the patient's general health stabilizes. Emergency surgery in temporal bone fractures, for instance, is seldom required unless the facial nerve canal must be cleared to correct facial paralysis. The patient, of course, should be examined thoroughly by an otologist soon after the traumatic episode so that proper treatment can be prescribed. Trauma involving the outer and middle ears usually can be treated successfully. Injuries to the inner ear and auditory nerve have no known effective therapy at this time; specific medications are unavailable and surgery is not feasible because of the inaccessibility of the injury site. If some hearing remains after either conductive or sensorineural injury, amplification with a hearing aid generally is beneficial.[FN75]
Blood may be present in the middle ear following head injury and bone fracture, causing the intact eardrum and middle ear to appear red when viewed through the otoscope. Because of the ability of the middle ear to cleanse itself of blood and other debris, it usually is unnecessary to employ surgery to remove blood from the middle ear. If surgery is employed for this purpose, infection and complications may follow.[FN76] After the blood is absorbed, hearing by both air conduction and bone conduction returns to normal.
Each surgical case is unique because of the tremendous number of variables presented by the individual anatomy, the type and degree of injury, and the possible presence of otosclerosis or other complicating conditions. Despite this lack of uniformity, certain basic

points can be applied. In the paragraphs below, surgical techniques are discussed in the order of the affected parts of the ear, from the eardrum inward.
Ruptured eardrum. In most cases, a rupture (sudden perforation) of the tympanic membrane (eardrum) is treated with systemic antibiotics to prevent infection while the eardrum heals spontaneously. During healing, unnecessary probing of the external ear canal and blowing of the nose should be avoided. If spontaneous healing does not occur, the membrane can be repaired surgically. Closing the rupture by grafting (myringoplasty) with a small piece of skin, Gelfoam, or other suitable material usually restores hearing. If myringoplasty does not provide restoration, the middle ear and its ossicular chain should be examined after the eardrum is surgically cut (myringotomy). Following myringotomy, the eardrum returns to normal in a few months, leaving only a small scar; hearing is not damaged in the long term by myringotomy or its scar.[FN77]
Fracture of the malleus. Even though the head and neck of the malleus may be fractured, the handle of the malleus usually remains attached to the tympanic membrane, where it can serve for reconstructing a bridge from the tympanic membrane to the oval window.
An incus graft usually is employed. In those extreme cases where the tympanic membrane and the bony chain are completely destroyed except for the stapes footplate, the restoration must be complete, starting with a graft of fascia (a band of fibrous tissue) as replacement for the tympanic membrane. A homograft malleus is then positioned on the fascial graft and next is attached to the stapedial footplate on the oval window.[FN78]
Dislocation of the incus and separation of the incus-stapes joint. A separated incudostapedial joint can be repaired by (1) repositioning, (2) reconstructing the joint by wedging in a piece of bone grafted from elsewhere in the patient, or (3) sculpturing a piece of bone from the patient so as to precisely fit and thus reconstruct the joint. Repositioning the incus to its original site usually can be achieved by repairing the supporting mucous membrane or by providing a gelatin sponge (Gelfoam) support in the upper portion (attic) of the middle ear. Reconstruction of the joint must be attempted when malalignment is too extensive to be corrected by repositioning the incus. If the distance between the joint surfaces is small, a small piece of bone can be removed from the external ear canal and wedged between the two surfaces. This is what was done in the first middle ear bone graft reconstruction in 1958; this procedure may produce good results, but the probability for success is improved by inserting a new incus sculptured by the surgeon from a remnant of the patient's incus or the neck of his malleus. If these bones are unavailable, a homograft (sculptured from a bone from the same species) can be used.[FN79]
Fracture of the arch of the stapes. During a temporal bone fracture, the twisting motion of the incus often severely damages the stapes by fracturing the arch at its weakest point where the arch meets the footplate. The most satisfactory remedy is to attach a sculptured bone graft to the stapedial footplate and the handle of the malleus. The reconstruction may be made with the patient's incus or a homograft.[FN80]
Fixation of stapes. Removal of the stapes, called stapedectomy, may be necessary when its position over the oval window becomes abnormally fixed, as in otosclerosis, to the extent that the oval window is no longer moved. In such cases, the footplate of the stapes can be removed and the oval window sealed with perichondrium (dense fibrous connective tissue covering most cartilage) grafted from the tragus, the cartilaginous projection immediately in front of the opening of the external ear canal. The graft can then be attached to the crura ("legs") of the stapes or to a replacement incus graft.[FN81]
In general, results achieved with surgical restoration of conductive hearing when the loss is due to ossicular derangement in the middle ear have been judged "excellent."[FN82]
§ 12. Hearing aids
The hearing aid, an electronic amplification device, must be selected according to the needs of the patient, such as the amount of amplification required and the frequency range in which the loss occurs. Air conduction aids can be chosen from various forms; for example, they may be worn on the body with the main portion connected to a receiver in the ear, or the main unit may be built into eyeglasses with a connection to an earpiece, or the entire aid may be in the eyepiece. In bone conduction hearing aids, sound is conducted to the cochlea by placing an oscillator over the mastoid process behind one of the ears.[FN83] Hearing aids are most effective in cases of conductive hearing loss, where the cochlea and auditory nerve retain normal function. In such cases, amplification

is all that is needed to restore at least some degree of hearing. Among hearing aids used for conductive losses, the major difference is in terms of fidelity, which is likely to relate to price. In cases of sensorineural deficits, however, the degree of loss is likely to be different at different frequencies. Moreover, if a patient suffers from recruitment, a hearing aid that amplifies only softer sounds is needed.[FN84] Sensorineural hearing losses, in addition to being selective, also tend to be progressive, which complicates the task of choosing the right hearing aid.
In the case of a hearing loss caused by a lesion of the auditory nerve or within the central nervous system, the underlying pathology is very serious, and may be fatal. In such cases, a hearing aid is unlikely to be effective, and improvement of the patient's hearing is a secondary consideration.
II. Elements of Proof; Damages
§ 13. Elements of proof checklist
[Cumulative Supplement]
The following facts and circumstances, among others, tend to show that a plaintiff has suffered hearing loss as a result of a specified traumatic event, the nature of the injury, the treatment given, and the prognosis:
□ Traumatic event (consistent with hearing loss) [§§ 15, 21, 34]
□ Physical indications of injury [§§ 16, 21– 23, 34]
□ Results of hearing tests [§§ 17– 18, 24– 30, 36– 37]
□ Measure of hearing loss [§§ 18, 24– 25, 37– 38]
□ Diagnosis [§§ 19, 31, 36]
□ Treatment
— Surgery [§§ 20, 32]
— Hearing aid [§ 39]
□ Prognosis [§§ 33, 39]
CUMULATIVE SUPPLEMENT
Cases:
Occupational injury presumption: Presumption that claimant's hearing loss for period when he worked at shipyard was compensable under LHWCA was not rebutted, where administrative law judge (ALJ) ruled that employer's shipyard and plant were both covered situses and that hearing loss was compensable, Benefits Review Board (BRB) then determined that plant was not covered situs, second ALJ on remand then ruled that claimant did not sustain hearing loss prior to being transferred from shipyard to plant, and BRB then re-instated claim; first ALJ determined that period of work at shipyard was compensable, BRB understood issue of compensability to have been resolved, and second ALJ did not have issue of compensability before him and did not even refer to

presumption of liability. Longshore and Harbor Workers' Compensation Act, § 20(a), 33 U.S.C.A. § 920(a). Bath Iron Works v.
Brown, 194 F.3d 1 (1st Cir. 1999); West's Key Number Digest, Workers' Compensation 1551.
Expert opinion as to causation: Testimony of plaintiff's physician expert relating to causation of plaintiff's hearing loss and tinnitus is not excluded, where opinion was based on physician's extensive training and career in otolaryngology and on well-accepted method of differential diagnosis whereby physician elicited symptoms by examination and history and ruled out causes until most probable cause was determined, because physician's expert opinion as to causation is reliable and relevant. Wilson v Petroleum Wholesale (1995, DC
Colo) 904 F Supp 1188.
Burden of proof on workers' compensation claim: On a workers' compensation claim for work-related hearing loss, burden of proof is on the claimant to establish that he suffers from a permanent hearing loss of 10 percent or greater that is medically established to be work-related and caused by the long-term exposure to hazardous occupational noise. 77 P.S. § 513. Flatley v. W.C.A.B. (Mallinckrodt
Chemical, Calsicat Div.), 803 A.2d 862 (Pa. Commw. Ct. 2002); West's Key Number Digest, Workers' Compensation 902.
[Top of Section]
[END OF SUPPLEMENT]
§ 14. Elements of damages checklist
[Cumulative Supplement]
Testimony as to the following elements of damages should be elicited, when applicable, from the plaintiff and his witnesses in an action seeking recovery of damages for personal injuries:
□ Necessary and reasonable medical expenses
— Actual past expenses for physician, hospital, nursing, laboratory fees, medicines, prosthetic devices, and the like
— Anticipated future expenses
□ Loss of past and future earnings
— Actual wages lost
— Loss of existing vocational skill
— Loss of capacity to earn increased wages
— Loss of profits or net income by person engaged in business[FN85]
□ Harm from prolonged inactivity (pressure sores; various other conditions caused by immobilization, such as thrombophlebitis and pneumonia)[FN86]
□ Pain and suffering from physical injuries[FN87]
□ Pain and suffering reasonably likely to occur in the future[FN88]
□ Mental anguish
— Fright and shock

— Humiliation and embarassment
— Anxiety, depression, and other mental suffering or illness
— Physical injuries caused by mental anguish[FN89]
□ Past and future impairment of ability to enjoy life[FN90]
□ Sexual dysfunction
□ Exemplary or punitive damages for malicious or reckless conduct[FN91]
CUMULATIVE SUPPLEMENT
Cases:
An award of $735,000 under the Federal Tort Claims Act in favor of a VA patient who suffered permanent sensorineural hearing loss and tinnitus as a result of excessive administration of amikacin (for abdominal infection due to dialysis) was affirmed. The court rejected the argument that, because the patient was already totally disabled, the award was excessive, noting that the hearing loss had deprived the plaintiff of the pleasures of watching television, listening to music, and socializing. Wakefield v United States (1985,
CA5 Tex) 765 F2d 55.
General damage award of $100,000 to bystander who suffered injury due to off-duty police officer's grabbing her head and pushing her into car was not excessive, in light of evidence that injuries, which either resulted from incident or were aggravated by altercation with officer, included concussion, post-concussion syndrome, cervical musculoigamentous strain, severe and chronic headaches resulting from injury to her ear, personality problems, visual problems, numbness in her arms, ringing in her ears, partial loss of hearing in her left ear, injury to spine muscles, injury to tendons and ligaments, nervous shock and chronic vomiting. Russell v.
Noullet, 706 So. 2d 540 (La. Ct. App. 4th Cir. 1998), reh'g denied, (Feb. 27, 1998).
Evidence supported general damage award of $135,000 to motorist for injuries sustained in automobile accident and award of $35,000 to motorist's wife for her loss of consortium, where motorist suffered from somatization resulting from accident, motorist aggravated preexisting cervical and lumbar conditions, he experienced headaches, tinnitus in both ears, nausea, decreased hearing, and memory and cognitive impairments. Wasiak v. Omaha Public Power Dist., 253 Neb. 46, 568 N.W.2d 229 (1997).
[Top of Section]
[END OF SUPPLEMENT]
III. Proof of Perforated Eardrum with Middle Ear Involvement
A. Testimony of Otolaryngologist
§ 15. History of trauma followed by hearing loss
[After introduction and identification of witness and his qualification as an expert]

Practice Note: Medical expert opinion testimony. As a general rule, a duly qualified physician may testify on the basis of proper hypothetical questions, or testimony given by other witnesses, or personal knowledge gained in his professional capacity, regarding the nature, cause, diagnosis, and prognosis of disease or injury. Proof of Facts: Qualification of Medical Expert Witness, 33 Am. Jur.
Proof of Facts 2d 179. The witness need not be a specialist. The competency of a physician or surgeon to testify as an expert usually is sufficiently shown by the fact that he has been licensed. The jury is entitled, however, to be informed of the witness' qualifications, and of the nature and extent of the witness' opportunity to observe the patient. The mere fact that a physician is employed by a party will not render his testimony incompetent, but it may be considered by the jury as affecting its weight. Expert medical opinion evidence need not be positive, but may be expressed in the form of a reasonable probability based upon hypotheses supported by the evidence, or known facts. See generally, 31 Am. Jur. 2d, Expert and Opinion Evidence §§ 103–113; Annotation: Admissibility of opinion evidence as to cause of death, disease, or injury, 66 A.L.R. 2d 1082. Proof of Facts: Regarding the use of hypothetical questions, see also Hypothetical Questions, 6 Am. Jur. Proof of Facts 159.
Q. Doctor , on [date] did you have occasion to see [plaintiff] in your professional capacity?
A. Yes. I did.
Q. Under what circumstances?
A. He came to my office for examination and treatment.
Q. What was his chief complaint?
A. He told me that on [date] he had been involved in an altercation in the course of which he was struck forcibly on the left side of his head over the left ear. He said that he felt severe pain in and about the left ear and that immediately following the blow he felt dizzy and had difficulty maintaining his balance when he tried to walk. The rest of that day and the following several days he had a dull headache and a heavy feeling on the left side of his head. He said that "it seemed like a heavy weight was hanging in there." The earache continued, as did a ringing in the left ear. He also complained of popping, roaring, and grinding noises in his left ear.
Practice Note: Hearsay. It is a well established rule that a doctor may testify regarding a patient's statements made to the doctor in the course of diagnosis and treatment. Historically, this particular exception to the hearsay rule has not applied where the patient consulted the doctor not for treatment, but merely to qualify the doctor as an expert witness. In recent years, however, there has been a trend toward liberalization of this rule, so that statements made in the course of diagnosis or treatment are admissible. See, for example,
Rule 803(4), Federal Rules of Evidence (32B Am. Jur. 2d, Fed R Evid § 232); see also 31 Am. Jur. 2d, Expert and Opinion Evidence §
108. It should be noted that there is a distinction between the use of a patient's statements as a basis for an expert's opinion and their use as substantive evidence of the facts stated. Logically, where the element of implied trustworthiness thought to be present in a patient's statements to his doctor is for some reason absent, the patient's statements may only be admissible as a basis for the expert's opinion. See 2 Jones on Evidence (6th ed.) § 10:7; Rule 703, Fed R Evid (32B Am. Jur. 2d, Federal Rules of Evidence § 436).
Annotation: Admissibility of physician's testimony as to patient's statements or declarations, other than res gestae, during medical examination, 37 A.L.R. 3d 778. In this case, where an intentional blow to the plaintiff's head is hypothesized, it is unlikely that the plaintiff's version of incident would be admissible by way of his physician. It is assumed that the circumstances of the injury are proven by independent evidence.
Q. Did you obtain a history as to the condition of the plaintiff's hearing in his left ear before the incident in question?
A. Yes.

Q. What was that history?
A. He stated that prior to the fight there was nothing wrong with his left ear. He said that he had never experienced such sounds in either ear before and that his hearing had always been good prior to the fight but that after the fight he noticed that he was not able to hear clearly the spoken voice of a person to his left, whereas he had no trouble hearing a person on his right.
§ 16. Physical examination
Q. Did you perform an examination?
A. I did.
Q. Did you record the result of your examination?
A. Yes. I made a written record as I proceeded with the examination.
Q. At this time, can you recall independently, without resort to your written record, the precise results of that examination?
A. No. Not exactly.
Q. Do you have your record of the examination with you?
A. Yes.
Q. Please examine that record. Does use of the record refresh your recollection as to the examination?
A. Yes.
Practice Note: Use of writing to refresh memory of witness. A writing or memorandum made at or about the time of the occurrence that is reported may be used to refresh the memory of a witness. However, it may not be read to the jury or introduced in evidence by the party using it, unless it qualifies as a past recollection recorded or a business record. See 29 Am. Jur. 2d, Evidence §§ 876, 877;
Rule 612, Fed R Evid (32B Am. Jur. 2d, Federal Rules of Evidence §§ 373–379). Medical records may qualify for admission under either the business records exception or the past recollection recorded exception to the hearsay rule. See 40 Am. Jur. 2d, Hospitals and
Asylums § 43; 2 Jones on Evidence (6th ed.) § 12:12; Rule 803(5), (6), Fed R Evid (32B Am. Jur. 2d, Federal Rules of Evidence §§
233, 234).
Q. Referring now to your record of the examination, what were your findings?
A. Pressure of my finger against the left ear of the patient, that is against the external ear just above the earlobe, produced a facial expression of pain. The patient also complained of tenderness behind and above the left ear. Visual examination in the external auditory meatus, or ear canal, revealed a moderate amount of cerumen, commonly called ear wax. After removal of the ear wax I examined the left eardrum and found its general appearance to be normal. That is, the drum was not scarred, red, swollen, or thickened; it had a shiny, pearl-colored appearance, which is normal. However, in the upper portion of the eardrum in the area known as Shrapnell's membrane, there was a very minute tear and some indication of bleeding. I found no indications of infectious otitis, which simply means inflammation of the ear.

Q. Does a tear of Schrapnell's membrane present a particular risk of complication?
A. Yes.
Q. In what way?
A. Tears in this portion of the eardrum are particularly associated with the formation of growths called cholesteatomas.
Cholesteatomas can actually erode the auditory ossicles and the bones surrounding the ear, leading to diverse symptoms such as mixed conductive and sensorineural hearing loss, facial paralysis, meningitis, and other conditions.
Q. In the course of your examination of the plaintiff, did it appear that he had developed a cholesteatoma?
A. No, at least not yet. However, the possibility of such a development renders a tear of Schrapnell's membrane particularly dangerous as compared with most other perforations of the eardrum.
Q. Did you conduct any further examination?
A. Yes. Using a device called a nasopharyngoscope, a small, round mirror on a long, thin handle, I was able to reflect light into the nasopharynx, the space in the back of the throat, into which the two nasal passages and the two eustachian tubes enter the throat.
Practice Note: Use of medical diagrams. Diagrams, if shown to be reasonably accurate, are admissible in evidence, or may be used as visual aids without actually being admitted. Diagrams of the normal forms of anatomical objects are often employed. See 29 Am. Jur.
2d, Evidence §§ 802–803. When using prepared diagrams or models to illustrate the testimony of an expert witness, it is customary to elicit testimony to the effect that the witness recognizes the accuracy of the particular diagram or model. Sometimes an expert witness may be asked to draw a diagram in court, in which case the act of the witness in drawing the diagram is generally considered sufficient verification. See Preparing and Using Diagrams, 3 Am. Jur. Trials 507.
Q. What was the purpose of this examination?
A. To determine whether there was any excessive adenoid tissue such as would interfere with the normal passage of air through the eustachian tube and into the middle ear.
Q. What were your findings in this regard?
A. There was no such abnormality.
§ 17. Hearing tests
Q. Did you test the plaintiff's hearing?
A. Yes. Initially, I noted that when I was standing to his left and spoke quietly just above a whisper he made either no response at all or he turned to me and asked what I said. When I spoke to him in the same tone of voice and with similar lack of intensity from his

right side, his responses indicated that he heard and understood my words. When I had finished with the general nose and throat examination, I tested his hearing by using a tuning fork.
Q. Please describe the procedure you employed.
A. Immediately after activating the tuning fork, I held it about an inch from his right, apparently normal, ear, at the level of the external ear canal and moved it away until the patient said he was no longer able to hear the tone. At this point the distance from the normal ear to the tuning fork was recorded at [distance]. I then repeated this test holding the tuning fork about an inch from the patient's left ear, with the result that he was unable to hear any tone at [distance].These two figures produced a fraction with the numerator being the distance at which the sound was no longer heard by the left ear, the denominator being the distance at which the sound was not heard by the right ear. After recording this fraction as / at the time of the first examination, I proceeded to make a similar test with the tuning fork, recording the length of time the tone was heard by the right ear as seconds; the duration of hearing in the left ear was seconds.
Q. Did you perform these tests again at a later time or times?
A. Yes. [Proceed with dates and results of additional tests]
Q. At the time of the initial examination, did you perform any other test or tests with the use of the tuning fork?
A. I performed several tests, the first of which is known as the Weber test.
Q. Please describe this test.
A. After activating a low pitched tuning fork, I placed the stem of the fork on the top of the patient's head, then against the base of his nose, then on his chin, and then on his teeth. In each position, I asked him where he perceived the sound.
Q. What was his reaction?
A. In each case, he stated that he heard the sound in his left ear.
Q. Generally speaking, what is the significance of that result?
A. It indicates a conductive hearing problem in the left middle ear. In a person with normal hearing in both ears, or an equal loss of hearing in both ears, the sound would have been heard in the middle of his head. In a person with sensorineural hearing loss, the sound would have been heard in the right, or better, ear.
Q. Did you perform another test?
A. Yes. I performed the Rinne test.
Q. Please describe that procedure.
A. In the Rinne test, the tuning fork is used in two positions, beside the ear, and with the stem placed against the mastoid process, the bony point that can be felt just behind the external ear. In a normal person, or a person with sensorineural loss, the sound will be heard

better and longer when the fork is held beside the ear, that is, when the sound is perceived by air conduction. If the sound is heard better or longer when the stem of the tuning fork is palced against the mastoid process, there is probably a conductive hearing loss.
Q. What were the results of the Rinne test?
A. The patient had better hearing in his left ear by bone conduction than by air conduction. This was, once again, indicative of a conductive loss in the left ear, probably caused by middle ear pathology.
§ 18. Hearing tests—Audiometry
Q. Did you use any other device in testing the hearing of the plaintiff?
A. Yes. I used an audiometer.
Q. How does this device work?
A. It is an electrically operated machine in which a vacuum oscillator produces specific tones with regulated degrees of intensity. The patient is tested by activating the machine to produce a given tone at low intensity. Then the intensity is increased until the tone can be heard by the patient. On the machine I used, the patient indicates this point by pushing a button which turns on a signal light. This threshold of hearing is then recorded or charted on a graph known as an audiogram.
Q. Is there any standard unit in distinguishing degrees of intensity?
A. Yes. Degrees of sound intensity are measured in decibels, called dB's.
Q. What does a decibel represent as far as hearing is concerned?
A. That question requires a relatively complicated answer, but I will try to make it as simple as possible. In one sense, a decibel represents the smallest change in sound intensity that can be detected by one with normal hearing. In a more scientific sense, the decibel scale is a logarithmic scale used to measure the relative intensity, or amplitude, of sounds. Thus, an increase of 10 decibels in intensity indicates a tenfold increase, an increase of 20 decibels indicates a hundredfold increase in intensity, and an increase of 30 decibels indicates a thousandfold increase in intensity, and so on. Sound intensity levels in this sense refer to absolute mathematical intensity, as measured by an instrument. In terms of perceived hearing, each increase of 10 decibels generally represents a doubling of perceived loudness. If increases in intensity were directly perceived as increases in loudness, very loud sounds would be literally billions of times as loud as relatively soft sounds.
Q. Referring again to the audiometer, am I correct in understanding that this instrument measures relative hearing loss in terms of decibels?
A. Yes.
Q. How many frequencies does the audiometer test?

A. It has seven test frequencies, each of which is twice the preceding frequency. It produces tones ranging from 128 to 8, 192 hertz, which we used to call cycles per second.
Q. May the record show that I am now handing you a document marked Plaintiff's Exhibit . Do you recognize this exhibit?
A. This is an audiogram made by me in the course of testing the plaintiff for hearing loss on [date recorded on exhibit].
Practice Note: Result of scientific test. Medical expert opinion evidence based on data that is normally relied on by experts in a particular field may be admitted in federal courts and in jurisdictions applying the Federal Rules of Evidence even if the underlying data is not admissible. Rule 703, Fed R Evid (32B Am. Jur. 2d, Federal Rules of Evidence § 437. Proof of Facts: Qualification of
Medical Expert Witness, 33 Am. Jur. Proof of Facts 2d 179 § 9. In this instance, however, the actual audiograms relied on by the witness should probably be presented, since the witness can essentially do no more than repeat the data recorded on the audiogram.
The results of medical tests by electronic instruments may be considered admissible (if authenticated) on the ground that they have been proven reliable (for example, X-rays), or as business records, although it may be observed that the fact that a test is done in the regular course of business does not necessary mean it is accurate. Annotation: Admissibility in civil action of medical test, or report based upon such test, 66 A.L.R. 2d 536; see also 29 Am. Jur. 2d, Evidence § 829.
[It is assumed that the authenticity and accuracy of the audiograms have been demonstrated to the court's satisfaction, and that the audiograms are admitted in evidence]
Q. What does this audiogram indicate?
A. The graph shows the plaintiff's minimum threshold of hearing at each frequency, as indicated by his response as to when he first heard each tone.
Q. I am now handing you another audiogram, marked Plaintiff's Exhibit . What does this represent?
A. That is another audiogram made on the same day as the previous one, testing the plaintiff's sensitivity to sound by bone conduction.
Q. What procedure do you employ in measuring bone conduction?
A. The procedure is essentially identical to that used in measuring air conduction, except that the sound-producing device is placed over the mastoid process.
Q. Taken together, what do these two audiograms indicate?
A. In the right ear, no significant loss of hearing was evident. In the left ear, the following decibel losses by air conduction were demonstrated: At 128 hertz, the decibel loss was ; at 256 hertz, the loss was ; at 512 hertz, the loss was ; at 1024 hertz, the loss was ; at
2048 hertz, the loss was ; and at 4096 hertz, the loss was .
Q. Can you represent these figures in terms of percentages of hearing lost?
A. Only roughly. For example, it is generally considered that a loss of 65 decibels represents a complete loss of useful hearing at 128 hertz, whereas a loss of 90 decibels represents a complete loss at 4096 hertz. However, at either frequency, a very loud sound may still be heard, although it will not be perceived at a normal level. Moreover, frequencies between approximately 500 and 2,000 hertz are most important for speech communication, whereas losses in the higher frequencies may certainly interfere with a person's ability to enjoy music, but would not be functionally disabling. Having made those disclaimers, I would say that these audiograms demonstrate

that this patient was suffering from nearly total practical hearing loss in the common speech frequencies, in the left ear, when these audiograms were made.
Q. Were these air and bone conduction tests with the audiometer repeated?
A. Yes. They were repeated times at intervals of days.
Q. What was the purpose of repeating these tests?
A. Primarily, to test our results.
Q. What were the results of these repetitions?
A. The patient's responses were practically the same.
§ 19. Diagnosis
Q. Based upon the tests that you have described, were you able to reach a diagnosis to a reasonable degree of medical certainty?
A. Yes.
Q. What was that diagnosis?
A. The blow to the head that the patient received on [date] caused a rupture or tearing of the tympanic membrane, the eardrum, of the patient's left ear. Hemorrhaging into the middle ear produced a congealing of blood in and about the three small bones in the middle ear, the auditory ossicles. In most instances, such blood is absorbed without serious residual effect, but in this case the blood caused the formation of connective or scar tissue in the middle ear. Sound pressure then was not conducted efficiently through the middle ear to the inner ear, in which sound is actually perceived.
§ 20. Surgery
Q. In your judgment, was this condition correctable by surgery?
A. I thought so.
Q. Did you perform surgery on the plaintiff's left ear?
A. Yes.
Q. When?
A. .

Q. Please describe that surgery.
A. .
Medical Note: Surgery on the middle ear. Numerous surgical techniques have been developed for repairing perforations of the eardrum and various derangements of the auditory ossicles. For discussion and illustrations of several surgical techniques, see D.
Myers, Otologic Diagnosis and the Treatment of Deafness, 22 (No. 2) Clinical Symposia (1970).
[Continue with testimony concerning course and extent of recovery, residual disability, damages]
IV. Proof of Mixed Hearing Loss (Longitudinal Fracture of Petrous Bone)
A. Testimony of Otolaryngologist
§ 21. History of trauma
[After introduction and identification of witness, and his qualification as an expert; as to medical opinion testimony generally, see the
Practice Note in § 15, supra]
Q. Doctor , have you treated [plaintiff]?
A. Yes.
Q. When did you first see him?
A. I was called in by Dr. to see the patient at Hospital, where he was recovering from a skull fracture. The doctors suspected that the patient had suffered a hearing loss as a result of his injury.
Q. Did you obtain a history from the patient?
A. Yes.
Q. What was that history?
A. He stated that he had been eating dinner at a restaurant, and that on his way out of the restaurant he slipped on something wet, and apparently banged the left side of his head on something—he wasn't sure what, as he fell. He was knocked unconscious and awoke in an ambulance on his way to the hospital.
Practice Note: Hearsay. It is a well established rule that a doctor may testify regarding a patient's statements made to the doctor in the course of diagnosis and treatment. Historically, this particular exception to the hearsay rule has not applied where the patient consulted the doctor not for treatment, but merely to qualify the doctor as an expert witness. In recent years, however, there has been a trend toward liberalization of this rule, so that statements made in the course of diagnosis or treatment are admissible. See, for example,

Rule 803(4), Fed R Evid (32B Am. Jur. 2d, Federal Rules of Evidence § 232); see also 31 Am. Jur. 2d, Expert and Opinion Evidence §
108. It should be noted that there is a distinction between the use of a patient's statements as a basis for an expert's opinion and their use as substantive evidence of the facts stated. Logically, where the element of implied trustworthiness thought to be present in a patient's statements to his doctor is for some reason absent, the patient's statements may only be admissible as a basis for the expert's opinion. See 2 Jones on Evidence (6th ed.) § 10:7; Rule 703, Fed R Evid (32B Am. Jur. 2d, Federal Rules of Evidence § 436).
Q. When did that accident occur?
A. I'm not precisely sure. My best recollection is that I first saw him on his third day in the hospital, which means the accident would have occurred on [date].
[For an example of the use of medical records to refresh a witness' memory, see § 16, supra]
Q. Am I correct, then, in understanding that you did not see the patient when he was first brought to the hospital?
A. Yes.
Q. Before you first examined him, did you speak with Dr. [referring physician] regarding his initial findings?
A. Yes.
Practice Note: Basis of expert opinion. As noted in the Practice Note at the outset of this section, an expert witness may testify on the basis of hypothetical questions, or testimony of other witnesses, or personal knowledge. Objections have been raised in countless cases, however, where the opinions of a medical witness were based in whole or in part on the opinions or observations of another physician, or on entries in medical records. The trend of modern authority appears to be toward the position that an expert witness may rely in testimony on the same sources of information that he would rely on in medical practice. Proof of Facts: Qualification of
Medical Expert Witness, 33 Am. Jur. Proof of Facts 2d 179 § 9.
Q. What did Dr. tell you?
A. He stated that when the patient first arrived in the emergency room he was conscious and suffering from great pain in the region of the squamous portion of the temporal bone, just above the external ear. The patient was bleeding from the left ear, and after the ear was thoroughly and aseptically cleaned, it was discovered that he was also suffering from otorrhea, leakage of cerebrospinal fluid from the ear.
§ 22. Indications of longitudinal fracture of petrous bone
Q. What is the diagnostic significance of bleeding from the ear in this type of injury?
A. Bleeding from the ear is strongly indicative of a type of fracture known as a longitudinal fracture of the petrous bone. This type of fracture frequently disrupts the middle ear, and the tympanic membrane, or eardrum, and the external ear canal.
Q. What is the diagnostic significance of the leakage of cerebrospinal fluid from the ear?
A. It is essentially the same as bleeding from the ear, that is, it is indicative of a longitudinal fracture of the petrous bone.

Q. [Indicating] I have here on this easel a diagram of the bones of the lower skull, viewed from above on the inside of the skull. Do you recognize this diagram as an accurate representation of the normal human skull?
A. [Witness examines diagram] Yes.
Practice Note: Use of medical diagrams. Diagrams, if shown to be reasonably accurate, are admissible in evidence, or may be used as visual aids without actually being admitted. Diagrams of the normal forms of anatomical objects are often employed. See 29 Am. Jur.
2d, Evidence §§ 802–803. When using prepared diagrams or models to illustrate the testimony of an expert witness, it is customary to elicit testimony to the effect that the witness recognizes the accuracy of the particular diagram or model. Sometimes an expert witness may be asked to draw a diagram in court, in which case the act of the witness in drawing the diagram is generally considered sufficient verification. See Preparing and Using Diagrams, 3 Am. Jur. Trials 507.
Q. Will you please indicate the position of the petrous bone in this diagram?
A. Yes. [Witness indicates] The petrous bone, which is sometimes referred to as the petrous pyramid, may be seen as a ridge-like formation that tapers gradually to a point near the center of the base of the skull. It separates the depressions in the base of the skull known as the posterior fossa and the middle fossa.
Q. What is a longitudinal fracture of the petrous bone?
A. [Witness indicates] It is a fracture line running in the direction of the long axis of the bone, rather than a transverse fracture, which runs across the bone.
Q. What is the significance of the petrous bone in terms of hearing?
A. The structures of the ear are located within the petrous bone. Fractures of the petrous bone are thus likely to cause at least temporary damage to some part of the auditory system.
§ 23. Physical examination
Q. When you first saw [plaintiff], did you examine him?
A. Yes.
Q. What were your relevant findings?
A. First, I noticed a distinct discoloration of the mastoid area, the prominent bone behind the ear. This is called Battle's sign, which is also a characteristic symptom of a longitudinal fracture of the petrous bone. I used a special device, called an otomicroscope to inspect the external ear canal and the eardrum. A thin line of dried blood, a scab, was visible in the external auditory meatus, the ear canal, running right up to the eardrum. A perforation, a tiny rip, was visible in the eardrum at the point where the scab contacted it.
§ 24. Hearing tests—Air-conduction test

Q. When you first examined him, did you test [plaintiff's] hearing?
A. No.
Q. Why not?
A. To have tested the patient's hearing so soon after his injury would have caused him considerable discomfort and the results would have been inconclusive, since he had an unhealed perforation of the eardrum. Such perforations frequently heal spontaneously. I felt that it would be wiser to wait another week before testing the patient's hearing.
Q. When did you first test his hearing?
A. .
Q. What tests did you perform?
A. I performed several groups of tests: (1) pure-tone and conductive loss tests to assess the amount of hearing loss, (2) a speech test to indicate communicative impairment, and (3) special tests to assess the nature of the loss.
Q. Would you describe the examinations that you made?
A. First, I administered a pure-tone air-conduction threshold test in the patient's right ear, then in his left ear. This was accomplished by seating the plaintiff in a sound-insulated room, placing a pair of earphones on his ears, and presenting pure tones through an audiometer to one ear at a time. Threshold was determined by means of a bracketing technique in which the tone was presented above and then below the threshold, gradually narrowing the range until the point where the patient heard 50 percent of the time was established. This was accomplished for each of six pure-tone frequencies on each ear.
Medical Note: Pure-tone testing. Pure-tone testing is the most common method of hearing assessment. It presents an estimate of the intensity necessary for sound to be audible to the individual. Many hearing losses show discrete areas of hearing deficits rather than general depressions.
Q. What were the results of the air-conduction pure-tone test?
A. The results for the right ear indicated hearing within normal limits throughout the audiometric spectrum with a slight but insignificant notch, or depression, in the high-frequency range. The softest sound to which the patient would respond was 35 dB, or decibels, at 1,000 hertz, or cycles per second.
§ 25. Hearing tests—Weber test and bone-conduction threshold test
Q. Did you perform any further basic tests on [plaintiff]?
A. Yes, the Weber test and bone-conduction threshold measurements.

Q. What is the purpose of the Weber test?
A. The Weber test is based on a paradoxical finding that, in certain unilateral losses, the bone-conducted sound may be heard loudest in the poorer hearing ear. This finding occurs in conductive losses. The Weber test is also used to determine whether or not masking is necessary when doing bone-conduction testing.
Q. What do you mean by the term "conductive loss"?
A. A loss caused by pathology of the eardrum or middle ear, as opposed to the inner ear or the nervous system.
Q. How is this test done?
A. I placed the bone-conduction oscillator in the middle of the patient's forehead, sounded a tone of 500 hertz and asked him where he heard the tone. He replied in the right ear. The same procedure was done at 1,000, 2,000, and 4,000 hertz and the tone always was heard in the right ear. Next, by placing the bone-conduction oscillator on the prominence of his mastoid bone and presenting pure tones in the same manner as for air-conduction testing, bone-conduction thresholds were established for the frequencies of 250, 500,
1,000, 2,000, and 4,000 hertz. Because the Weber test showed lateralization to the right ear, masking was applied to the right ear during the left ear testing.
Q. Am I correct in understanding that the Weber test did not indicate a conductive loss?
A. That's right. The classical response to the Weber test in a patient with unilateral conductive hearing loss would be to hear the boneconducted sound in the poorer ear, in this case the left ear.
Q. What were the results of the bone-conduction testing?
A. The patient showed bone-conduction responses similar to air conduction in the right ear, but a sloping loss by air conduction in the left ear. It is significant that while both air- and bone-conducted sounds indicated a hearing loss in the left ear, the air-conducted responses are much poorer than are the bone-conducted sounds. This finding is called an air-bone gap and indicates the amount of conductive pathology there is in addition to the sensorineural impairment.
Q. What do you mean by sensorineural impairment?
A. Hearing loss caused by pathology of the middle ear or the nervous system. Cases of hearing loss can be classified as conductive, which I defined a moment ago, sensorineural, or mixed—involving both types.
Q. Are you saying, then, that [plaintiff] had both conductive and sensorineural losses?
A. It appeared so, from the results of the Weber and bone-conduction tests.
§ 26. Hearing tests—Speech tests
Q. Will you describe the tests for hearing of speech conducted on [plaintiff]?

A. First, I administered a speech reception threshold test (live voice) to determine the lowest intensity level at which the patient could correctly repeat 50 percent of the words.
Q. What were the results of this test?
A. The right ear showed a normal speech reception threshold, as expected. The left ear showed a 50 dB loss in speech reception that agrees well with the overall hearing loss in that ear. This suggests that speech must be at about conversational loudness before the patient can just barely hear it.
Q. What other speech test did you make, if any?
A. I also administered tests of most comfortable listening level, speech discrimination, and threshold of discomfort.
Q. Would you please describe the most comfortable listening level test?
A. Using the speech audiometer, I said words to the patient at various high-intensity levels until he indicated the level which was the most comfortable for listening and understanding of the words.
Q. What were the results of this test?
A. In the right ear the MCL was 35 dB, which is a normal response. In the left ear it was 75 dB, which is only 25 dB greater than speech threshold and suggests a restricted range of sound intensity within which to listen.
Q. Please describe the speech discrimination test.
A. I asked the patient to repeat 50 words after me when spoken at his maximum comfort level over a microphone into a sound-treated room.
Q. What were the results of the discrimination testing?
A. In the right ear, discrimination of speech was excellent with him achieving a score of 100 percent. In the left ear, he achieved a score of only 75 percent, which is considered fair and is consistent with a sensorineural hearing loss. It indicates that sound in the left ear is never very clear to him, no matter how loud it is made.
Q. Please describe the threshold of discomfort test.
A. I continued to increase the intensity of my spoken voice over the audiometer until he indicated that the sound was intolerably loud, causing a tickle, pricking, or other type of pain to his ear.
Q. What were the results of this test?
A. For the right ear the tolerance level was greater than the output of the audiometer (100 dB), while for the left ear pain occurred at
95 dB, indicating difficulty in handling loud sounds in addition to the loss of hearing sensitivity and discrimination loss.
§ 27. Hearing tests—Alternate bineural loudness balance test (ABLB)

Q. What special tests did you perform in order to establish the nature of the hearing loss?
A. I performed the alternate binaural loudness balance test (ABLB), the short increment sensitivity index measurement (SISI), the tone decay test, and Békésy audiometry.
Q. Please describe the alternate binaural loudness balance test.
A. I presented several pairs of 1,000-hertz tones to the patient. The first tone always went to the right ear, the normal hearing ear, and the second to the impaired ear. After the loudness was balanced for the tone between the two ears, the intensity was raised in the right ear and the intensity in the left ear was again adjusted to be equal to that in the right ear. This procedure was continued up to a 90 dB level.
Q. What were the results of the loudness balance test?
A. The patient showed complete recruitment by the 80 dB level; that is, when the tone was 80 dB it sounded equally loud in either ear despite the fact that threshold in the left ear is much poorer than in the right ear. This is a strong indication of damage to the cochlear mechanism.
§ 28. Hearing tests—Short increment sensitivity index test (SISI)
Q. Please describe the short increment sensitivity index test.
A. The patient listened to a continuous tone of 1,000 hertz at 20 dB above his threshold in the right ear, and later in the left ear.
Superimposed on the continuous tone were small increases in intensity of 1 dB. He raised his hand every time he heard one of the intensive increments.
Q. What were the results of this test?
A. He heard only one out of 20 intensive increments for a 5 percent score in the right ear, which is to be expected in a normal ear, but he heard 100 percent of the increments in the left ear. This supports the ABLB test in its indication of damage to the cochlear portion of the hearing mechanism.
§ 29. Hearing tests—Tone decay test
Q. Please describe the tone decay test.
A. The patient was instructed to raise his hand when he heard the tone and to keep it up as long as the tone remained audible, but to lower his hand as soon as the tone stopped.

Medical Note: Tone decay test. This test is designed to detect neural disorders in the hearing mechanism. In cases of VIIIth cranial nerve tumors, it is often found that a pure tone will decay considerably within a short period; that is, the decay process will render a tone presented slightly above threshold inaudible in a few moment's time. As the intensity is increased so that the tone resumes audibility, the decay will continue and again render the more intense pure tone inaudible with the passage of time. See § 5, supra.
Q. What were the results of the tone decay test?
A. He showed a change of only 5 dB over a period of one minute. This did not suggest neural involvement.
§ 30. Hearing tests—Békésy test
Q. Please describe the Békésy test.
A. I instructed the patient to press down on a switch whenever he heard a tone and to release the switch when the tone stopped. The
Békésy audiometer was set to run steadily from 100 to 10,000 hertz. This was accomplished for both a continuous tone and an interrupted tone, with the patient's threshold across the entire audiometric spectrum plotted on a special graph in ink.
Medical Note: Békésy test. Békésy audiometry is a powerful audiologic diagnostic tool, particularly in differentiating between cochlear and neural hearing disorders (see § 3, supra). The patient traces his own threshold and the variability about his threshold throughout the audiometric range. Some of the important observations include the pattern of threshold tracing, the variability around threshold at different frequency areas, and the difference in sensitivity for continuous and pulsed tones.
Q. What were the results of this test?
A. The patient showed a similar pattern to his masked pure-tone air-conduction audiogram. The variability about his threshold became slightly narrower in the high frequencies. The continuous and interrupted tracings were identical in the low frequencies, but the continuous tracing became slightly poorer in the high frequencies. These findings indicate cochlear pathology and are in close agreement with the other special audiologic tests.
Q. Did you make any other tests?
A. No further tests were made at that time.
§ 31. Diagnosis
Q. Have you examined [plaintiff] subsequently?
A. Yes. I have seen him three times since for pure tone and speech examination.
Q. What were the results of the subsequent examinations?
A. The results have been very similar, showing no significant increase or decrease in hearing function.

Q. On the basis of your examination of [plaintiff] the results of the tests that you administered to him, and the history and subjective symptoms that he described to you, were you able to form an opinion, based on reliable audiologic evidence, of the nature and extent of impairment of his hearing mechanism?
A. Yes.
Q. What is that opinion?
A. He showed a mixed hearing loss, composed of a conductive element and a sensorineural element. The loss is confined to the left ear and involves discrimination of speech as well as reception of speech and pure tones.
Practice Note: Distinguishing between components of mixed hearing loss. Where a mixed hearing loss is demonstrated, or where a preexisting loss is proven, a question may arise as to the extent to which the total loss is related to the injury in question. This particular issue can be quite difficult, since certain injuries may produce either conductive or sensorineural loss, or both. Useful evidence in relation to this issue may include the result of hearing tests predating the injury in question, or other credible evidence relating to the injured party's hearing before the injury, or medical expert opinion testimony regarding which components of the hearing loss are or are not consistent with the diagnosed injury. It is assumed in this proof that testimony concerning the plaintiff's hearing before the injury has been or will be adduced.
§ 32. Treatment
Q. In your medical judgment, was [plaintiff's] hearing loss treatable?
A. The conductive component of the loss appeared to be treatable, but not the sensorineural component.
Q. Why did you consider the sensorineural component not treatable?
A. We do not have either medical or surgical techniques for treating hearing loss resulting from traumatic injury to the cochlea, as occurred in this case.
Q. What type of treatment did you think would be appropriate for the conductive component of [plaintiff's] hearing loss?
A. Surgery to restore the function of the ossicular chain, the three tiny bones that conduct sound waves across the middle ear from the eardrum to the inner ear. This chain is frequently disrupted in cases of fractures of the petrous bone, but many surgical techniques have been developed in recent years to repair this type of injury.
Practice Note: Use of diagrams. As stated in the Practice Note in § 22, supra, properly authenticated diagrams may be used to illustrate testimony. Diagrams are particularly useful in explaining the functioning of the ear, because of the mechanical nature of the processes involved.
Q. Did you perform surgery to repair [plaintiff's] middle ear?
A. Yes, with the assistance of Dr. .

Q. When and where was the operation performed?
A. .
Q. Please describe the surgery.
A. .
Medical Note: Surgery on the middle ear. Numerous surgical techniques have been developed for repairing perforations of the eardum and various derangements of the auditory ossicles. For discussion and illustrations of several surgical techniques, see D. Myers,
Otologic Diagnosis and the Treatment of Deafness, 22 (No. 2) Clinical Symposia (1970).
Q. Have you had occasion to test [plaintiff's] hearing since the surgery?
A. Yes. On several occasions.
Q. Please describe the results of these tests.
A. [Witness describes postsurgical results of same tests (where applicable) given before surgery].
§ 33. Prognosis; measure of permanent loss
Q. In your medical judgment, is further treatment possible to restore [plaintiff's] lost hearing?
A. No. The operation that I just described was relatively successful in restoring the conductive component of the patient's hearing loss, and the remaining component is untreatable sensorineural loss.
Q. Are you familiar with the concept of the Social Adequacy Index for the assessment of hearing loss?
A. Yes.
Q. Please describe how that index works.
A. The Social Adequacy Index is essentially a table that combines hearing loss measured in decibels and discrimination loss, to achieve a rough measure of the patient's ability to communicate in normal speech situations. The table consists of rows and columns, with decibel losses along one edge of the table and discrimination losses along the other; the social adequacy score appears at the intersection of the particular row and column in a given case. For example, a patient with perfect hearing will score 100 on the Social
Adequacy Index; whereas a person with a 10 percent discrimination loss and a 10 decibel hearing loss will score 85, which represents relatively modest impairment, and a person with 100 percent discrimination loss will have a score of 0 on the index regardless of his hearing loss in decibels.
Practice Note: Quantification of hearing loss. A device such as the Social Adequacy Index, although an approximation, has the advantage of quantifying hearing loss, thus providing what might be perceived as more "scientific" evidence to support a witness' opinion that the plaintiff's hearing loss is "mild," "severe," or the like.

[It is assumed that an example of the Social Adequacy Index is exhibited to the fact-finder.]
Q. Do you recognize the Social Adequacy Index as a reasonably accurate measurement?
A. Yes, within its own limits. That is, it is necessarily something of an approximation and it applies only to speech, not to the entire range of hearing.
Q. Have you calculated the index for [plaintiff] since his surgery?
A. Yes.
Q. What were the figures for decibel loss and discrimination loss that you used in calculating the index?
A. As determined by the tests that I have described, the figure for loss in decibels was , and the figure for determination loss was .
Q. What index score did you derive from those figures?
A. .
V. Proof of Sensorineural (Cochlear) Hearing Loss (Transverse Fracture of Petrous Bone)
A. Testimony of Otolaryngologist
§ 34. X-rays showing transverse fracture of petrous bone
[After introduction and identification of witness, and his qualification as an expert; as to medical opinion testimony generally, see the
Practice Note in § 15, supra]
Q. Dr. , have you treated , the plaintiff in this case?
A. Yes.
Q. When did you first see him?
A. .
Q. Who called you in to see [plaintiff]?
A. Dr. , a surgeon at the hospital.
Q. Did the doctor have a specific reason for wanting you to see [plaintiff]?

A. Yes. He suspected that the patient had suffered a hearing loss as a result of a skull fracture.
Practice Note: Basis of expert opinion. As noted in the Practice Note in § 15, supra, an expert witness may testify on the basis of hypothetical questions, or testimony of other witnesses, or personal knowledge. Objections have been raised in countless cases, however, where the opinions of a medical witness were based in whole or in part on the opinions or observations of another physician, or on entries in medical records. The trend of modern authority appears to be toward the position that an expert witness may rely in testimony on the same sources of information that he would rely on in medical practice. Proof of Facts: Qualification of Medical
Expert Witness, 33 Am. Jur. Proof of Facts 2d 179 § 9.
Q. At the time when you were called in, had [plaintiff] been diagnosed as having a skull fracture?
A. Yes.
Q. Before you saw [plaintiff], what did Dr. tell you about his injury?
A. He told me that the patient had suffered a transverse fracture through the petrous portion of the temporal bone.
Q. Did you view X-rays?
A. Yes. Dr. showed me X-rays that had been taken.
Practice Note: Foundation for admission of X-ray photographs. Because X-ray photographs are not readily identifiable, it has been held that their authenticity must be proven to a higher standard than applies to ordinary photographs. The cases, however, do not specify exactly what type of proof is required. It is ordinarily essential, and generally sufficient, to show that the X-ray is of the person, anatomical part, or object lodged therein that it purports to be. In some circumstances, courts have also required (1) proof that the condition of the person or object X-rayed was the same at the time the photograph was taken as it was at the time in controversy,
(2) proof that the X-ray machine was dependable and operating properly at the time the photograph was taken, (3) proof that the person who took the X-ray possessed the skills necessary to take correct and accurate pictures, and (4) proof of the specific manner in which the X-ray was taken. Such proof may generally be provided by the person who took the X-ray and made the identifying markings on it. As a general rule, a witness' ability to identify and comment on X-rays will be established as part of the qualification of the witness as an expert. Proof of Facts: Qualification of Medical Expert Witness, 33 Am. Jur. Proof of Facts 2d 179. Annotation:
Preliminary proof, verification or authentication of X-rays requisite to their introduction in evidence in civil cases, 5 A.L.R. 3d 303.
See also, 29 Am. Jur. 2d, Evidence §§ 799–800. For an example of testimony authenticating X-ray photographs, see 30 Am. Jur. Proof of Facts 2d 511 § 12.
[It is assumed that the X-rays have already been admitted in evidence during the testimony of a witness involved in taking them.]
Q. I am handing you now an X-ray picture, previously admitted as Plaintiff's Exhibit . Do you recognize it?
A. Yes. This is one of the patient's X-rays that Dr. showed me.
Q. Allow me to put the X-ray on this light box. Will you please indicate the relevant features of this X-ray, in your medical judgment?
A. There is a line here [indicating] running from the occipital bone, on the lower posterior right side of the skull, to here, in the sphenoid bone, which lies in front of the ear. The middle portion of the line disappears into the area of the petrous bone. In my opinion, this is indicative of a transverse fracture of the petrous bone, as Dr. thought.

§ 35. Common consequences of transverse fracture of petrous bone
Q. In terms of hearing, what is the significance of a fracture of the petrous bone?
A. The important structures of the ear, including the external ear canal, the middle ear, and the inner ear, lie within the petrous bone. A fracture of the petrous bone can seriously damage either the middle or the inner ear, or both, depending on the fracture line.
Q. With a fracture line such as the one which [plaintiff] suffered, is damage to the ear a common consequence?
A. Yes.
Q. To any particular part of the ear?
A. Yes. A transverse fracture of the petrous bone will most frequently cause damage to the inner ear, which is where the sound pressure waves transmitted by the middle ear are converted to nerve impulses to the brain.
Q. I have here a large diagram of the inner ear. Do you recognize this as an accurate representation of the normal human inner ear?
A. [Witness examines diagram] Yes, it is.
Practice Note: Use of medical diagrams. Diagrams, if shown to be reasonably accurate, are admissible in evidence, or may be used as visual aids without actually being admitted. Diagrams of the normal forms of anatomical objects are often employed. See 29 Am. Jur.
2d, Evidence §§ 802–803. When using prepared diagrams or models to illustrate the testimony of an expert witness, it is customary to elicit testimony to the effect that the witness recognizes the accuracy of the particular diagram or model. Sometimes an expert witness may be asked to draw a diagram in court, in which case the act of the witness in drawing the diagram is generally considered sufficient verification. See Preparing and Using Diagrams, 3 Am. Jur. Trials 507.
Q. Please describe the major structures of the inner ear and their functions.
A. This area [indicating], which includes a number of canals that form a very complex pattern, constitute the vestibular system, which controls our sense of balance. The adjoining spiral, or snail-shaped, structure is the cochlea. Inside the cochlea are two spiraling channels, called the scala tympani and the scala vestibuli, which contain a fluid called perilymph. Sound pressure waves are communicated from the middle ear to this fluid in the cochlea.
Q. Please continue.
A. Lying between the two scalae in the cochlea is a smaller fluid-filled duct called the cochlear duct, inside of which is the organ of
Corti. The cochlear duct is fulled with a fluid called endolymph, the same fluid that is found in the vestibular system. The pressure waves in the scalae are transmitted to the fluid in the cochlear duct, and are converted into electrical nerve impulses in the organ of
Corti. These impulses are conducted to the brain by the auditory nerve. The entire bony structure of the inner ear is sometimes referred to as the bony labyrinth. The cochlear duct and the vestibular canals are interconnected and suspended within membranes—this entire system is sometimes called the membranous labyrinth.
Q. How does a transverse fracture of the petrous bone affect these structures?

A. The fracture line may pass directly through the vestibular canals, affecting balance, or through the cochlea, affecting hearing, or both. Nerve injuries can also occur, which can affect balance or hearing or other functions, such as control of the facial muscles.
§ 36. Hearing tests
Q. Would I be correct in assuming that you could not diagnose [plaintiff's] hearing simply by the use of X-rays?
A. Absolutely. The only way to determine hearing loss is to test the hearing. Very similar-looking injuries can produce vastly different results.
[For a survey of various types of hearing tests, see §§ 24– 30, supra.]
Q. Did you test [plaintiff's] hearing?
A. Yes, on many occasions.
Q. When was the first time?
A. On [date], in a special audiometry room at Hospital.
Q. What procedure did you follow?
A. First I tried simply speaking to the patient, in a whisper and in a normal voice, from both the left and right sides. It was immediately evident that he had some difficulty comprehending a whisper spoken near his right ear. I then proceeded with testing intended to differentiate between conductive hearing loss, which is caused by damage to the middle ear, and sensorineural hearing loss, which is caused by damage to the inner ear or the nervous system. This differentiation is done mainly by measuring the patient's hearing by bone conduction and air conduction. Bone conduction is not affected by damage to the middle ear, so that a person who has suffered pure middle ear damage will have a hearing loss by air conduction, but not by bone conduction. Sensorineural hearing loss will involve hearing by both air and bone conduction.
Q. Did you do anything else?
A. Yes. The test results indicated sensorineural loss, rather than conductive loss, so I proceeded with tests to determine whether the loss was sensory, arising within the cochlea, or neural. This is determined mainly by the presence or absence of symptoms known as recruitment, diplacusis, and tone decay.
Q. Please describe these symptoms.
A. Recruitment is an abnormally strong response to increased loudness. A person with sensory, or cochlear, hearing loss, will have a heightened threshold of hearing, but after the threshold is reached he or she will become unusually sensitive to increases in loudness.
Loud sounds may be painful. A person with neural hearing loss will not exhibit this symptom, but will have a hearing loss at all levels of loudness. Diplacusis, which is derived from the Greek word for "double hearing," is also symptomatic of cochlear damage.
Diplacusis will cause a person to hear a single pure tone as two different tones, or as noise in the affected ear. Tone decay, also called pathological adaptation, is the inability to continuously hear a continuous tone above the threshold of hearing. This symptom may appear with either sensory or neural loss, but is likely to be much more pronounced in cases of neural, or retrocochlear, loss.

Q. Were the tests positive for all three symptoms?
A. They were positive for recruitment and diplacusis, and showed only mild tone decay, at relatively high frequencies. The final result of these tests was the determination that the patient had suffered a purely sensory, or cochlear, hearing loss.
Note: Tone decay. For illustrative audiograms regarding tone decay, see D. Myers, et al., Otologic Diagnosis and the Treatment of
Deafness, 22 (No. 2) Clinical Symposia 35, 48 (1970).
§ 37. Quantification of hearing loss
Q. Have you measured [plaintiff's] hearing loss?
A. Yes.
Q. How did you do that?
A. With the audiometer, in the course of diagnosis, and later. The audiometer generates tones of specific frequencies and intensities, and measures the patient's thresholds of hearing at the various frequencies. Sound intensity is measured in decibels. If we define the normal threshold of hearing as zero decibels, the actual threshold can be read directly as hearing loss, that is, a threshold of 20 decibels represents 20 decibels of hearing loss. Of course we measure the patient's hearing in both ears, so that we obtain a comparison not only against an arbitrary normal, but we compare the "good" ear against the "bad" ear, which can present a good measure of the actual loss suffered, assuming that hearing in both ears was equal before the injury.
Practice Note: Proof of previous condition. The testimony above points out the assumption that the plaintiff's hearing was normal, or more nearly normal, before his injury. It is assumed that independent evidence has been or will be offered to prove that point.
Regarding the decibel scale, see §§ 3, 18, supra.
Q. Do you have the audiograms from your first examination of [plaintiff] with you now?
A. Yes.
Practice Note: Result of scientific test. Medical expert opinion evidence based on data that is normally relied on by experts in a particular field may be admitted in federal courts and in jurisdictions applying the Federal Rules of Evidence even if the underlying data is not admissible. Rule 703, Fed R Evid (32B Am. Jur. 2d, Federal Rules of Evidence § 437). Proof of Facts: Qualification of
Medical Expert Witness, 33 Am. Jur. Proof of Facts 2d 179 § 9. In this instance, however, the actual audiograms relied on by the witness should probably be presented, since the witness can essentially do no more than repeat the data recorded on the audiogram.
The results of medical tests by electronic instruments may be considered admissible (if authenticated) on the ground that they have been proven reliable (for example, X-rays), or as business records, although it may be observed that the fact that a test is done in the regular course of business does not necessary mean it is accurate. Annotation: Admissibility in civil action of medical test, or report based upon such test, 66 A.L.R. 2d 536. See also 29 Am. Jur. 2d, Evidence § 829.
[It is assumed that the authenticity and accuracy of the audiograms have been demonstrated to the court's satisfaction, and that the audiograms are admitted in evidence]
Q. What is the normal frequency range of human speech?

A. Primarily from 500 to 2000 hertz, or cycles per second.
Q. According to this audiogram, what were [plaintiff's] thresholds within that range?
A. .
§ 38. Expert opinion as to quality of plaintiff's hearing
Q. Would you consider those figures to represent a severe hearing loss?
A. Yes. The patient suffers from two hearing disabilities—he cannot hear quiet speech with his right ear, and he cannot hear even loud sounds clearly. He can only hear effectively in very limited circumstances.
Q. In your medical judgment, can [plaintiff] engage in conversation at normal levels of speech?
A. Only so long as the speech is neither very soft nor very loud, and there is an absence of background noise above his threshold of hearing.
Q. Can he hear music?
A. Very poorly. Not only does he have difficulty with both very soft and very loud passages, but he has a very severe loss in the higher frequencies, much greater than in the speaking range.
[It is assumed that the plaintiff has provided direct testimony, in addition to medical opinion, concerning the quality of his hearing]
§ 39. Treatment; prognosis
Q. What treatment have you prescribed for [plaintiff's] condition?
A. We have experimented with a hearing aid; no other treatment is feasible.
Q. What is that?
A. We have no surgical or medical techniques for repairing damage to the cochlea.
Q. How has the hearing aid worked?
A. Not very well. [Plaintiff] has reported that it makes things sound different, but not particularly clearer. It does help him somewhat in hearing sounds of low intensity at relatively low frequencies, below 1000 hertz. Outside of that range, it hasn't helped very much.
Q. In your experience, is that unusual?

A. No. Sensorineural hearing loss is much more difficult to treat than conductive loss, in most cases, and hearing aids are not usually very effective in such cases.
Q. Is there any prospect that [plaintiff] will recover any substantial degree of hearing in his right ear?
A. No. This type of injury does not heal, and it is untreatable with present-day techniques.
[Continue with testimony to establish degree of disability, damages]
A.L.R. Library
Validity of State or Local Enactment Regulating Sound Amplification in Public Area, 122 A.L.R. 5th 593
Deaf-mute as witness, 50 A.L.R. 4th 1188
Future disease or condition, or anxiety relating thereto, as element of recovery, 50 A.L.R. 4th 13
Validity and construction of state statutes regulating hearing aid fitting or sales, 96 A.L.R. 3d 1030
Excessiveness or adequacy of damages awarded to injured person for injuries to head or neck, 11 A.L.R. 3d 370
Sufficiency of proof that condition of skin or sensory organ resulted from accident or incident in suit rather than from pre-existing condition, 2 A.L.R. 3d 446
Treatises and Practice Aids
Attorney's Medical Advisor, External Ear § 3:32
Attorney's Medical Advisor, Auditory Nerve § 36:40
Attorney's Medical Advisor, Ear Injuries §§ 36:59 et seq.
Attorneys Medical Atlas, Brain; cranial nerves; lateral view; normal Figure 6:5:9

Attorneys Medical Atlas, Ear; coronal view; normal Figure 14:1:1
Attorneys Medical Atlas, Ear; tympanic membrane; lateral view; normal Figure 14:1:2
Medical education and specialties, medical terminology, general information, Attorneys Medical Deskbook (2d ed.)
Lane Medical Litigation Guide
Trial Strategy
Proof of Injury or Damage Caused by Sonic Boom, 85 Am. Jur. Proof of Facts 3d 307
Citizen Suits Under the Noise Control Act, 58 Am. Jur. Proof of Facts 3d 315
Common Law Action for Noise Nuisance on Neighboring Land, 41 Am. Jur. Proof of Facts 3d 391
Proof of "Disability" Under the Americans With Disabilities Act, 33 Am. Jur. Proof of Facts 3d 1
Peripheral and Cranial Nerve Injury Due to Trauma, 10 Am. Jur. Proof of Facts 3d 757
Proving Significant Disability From Mild Head Injury, 50 Am. Jur. Proof of Facts 2d 1
Forensic Audiology: Workers' Compensation for Noise-Induced Hearing Loss, 46 Am. Jur. Proof of Facts 2d 221
Liability for Inadequate Protection of Telephone Against Power Surge, 33 Am. Jur. Proof of Facts 2d 721
Qualification of Medical Expert Witness, 33 Am. Jur. Proof of Facts 2d 179
Aphasia, 30 Am. Jur. Proof of Facts 2d 341

Community Noise, 26 Am. Jur. Proof of Facts 181 (Noise Pollution)
Physical Disabilities of Motor Vehicle Drivers—Vision and Hearing Defects, 22 Am. Jur. Proof of Facts 123
Occupational Deafness, 14 Am. Jur. Proof of Facts 329
Defending Hospital—Negligence of Physician-Employee, 19 Am. Jur. Trials 431
Defense of Medical Malpractice Cases, 16 Am. Jur. Trials 471
Discovery and Evaluation of Medical Records, 15 Am. Jur. Trials 373
Predicting Personal Injury Verdicts and Damages, 6 Am. Jur. Trials 963
Collateral Cross-Examination of Medical Witness, 6 Am. Jur. Trials 423
Basis of Medical Testimony, 6 Am. Jur. Trials 109
Use of Medical Consultants, 4 Am. Jur. Trials 253
Selecting and Preparing Expert Witnesses, 3 Am. Jur. Trials 585
Locating Medical Experts, 2 Am. Jur. Trials 357
Forms
Forms of consent for various medical procedures, 15 Am. Jur. Legal Forms 2d, §§ 202:141- 202:151
Assumption of risk by patient, 15 Am. Jur. Legal Forms 2d, §§ 202:161- 202:166

Patient's right to privacy, 15 Am. Jur. Legal Forms 2d, §§ 202:191- 202:197
Instruction to jury—Implied consent and general authorization to extend treatment or operation, 19 Am. Jur. Pleading and Practice
Forms, Physicians, Surgeons, and Other Healers, Form 105
Instruction to jury—Extension of operation or treatment and effect of emergency or unanticipated conditions, 19 Am. Jur. Pleading and Practice Forms, Physicians, Surgeons, and Other Healers, Form 106
Defense—Physician's use of ordinary skill and approved methods, 19 Am. Jur. Pleading and Practice Forms, Physicians, Surgeons, and Other Healers, Form 146
Instruction to jury—Physician's liability for mistake in judgment, 19 Am. Jur. Pleading and Practice Forms, Physicians, Surgeons, and
Other Healers, Form 153
Instruction to jury—Choice of accepted methods of treatment, 19 Am. Jur. Pleading and Practice Forms, Physicians, Surgeons, and
Other Healers, Form 156
Allegation in complaint—Physician's failure to realize or advise of risks incident to proposed operation, 19 Am. Jur. Pleading and
Practice Forms, Physicians, Surgeons, and Other Healers, Form 222
Instruction to jury—Patient's informed consent to surgery—surgeon's duty to disclose risks, 19 Am. Jur. Pleading and Practice Forms,
Physicians, Surgeons, and Other Healers, Form 225
Law Reviews and Other Periodicals
How airport noise and airport privatization effect economic development in communities surrounding U.S. airports, 31 Transp. L.J.
213 (2004 WL 3515558)
Not in my back yard! The federal-local conflict over general aviation airports, 72(3) J. Air L. & Com. 561 (2007 WL 4868215)
Off-roaders, noise opponents collide: dirt drivers sue to overturn ordinance governing decibels in rural areas, L.A. Daily J., May 26,
2006, at 1 (2006 WL 1903721)

Say it loud: noise pollution hurts, kills, 22 Envtl. F. 12 (2005 WL 2114383)
Tinnitus, even without hearing loss, qualifies for workers' comp benefits, N.J.L.J., July 30, 2007 (2007 WL 2319192)
Agreement between hearing thresholds measured in non-soundproof work environments and a soundproof booth, 60(9) Occup
Environ Med 667 (2003)
Airbags and permanent auditory deficits. A real correlation? 57(3) Acta Otorhinolaryngol Belg 177 (2003)
Annoyance due to single and combined sound exposure from railway and road traffic, 122(5) J Acoust Soc Am 2642 (2007)
Are cochlear implant patients suffering from perceptual dissonance? 26(5) Ear Hear 435 (2005)
Assessment of Noise Exposure for Indoor and Outdoor Firing Ranges, 4(9) J. Occup. & Environ. Hyg. 688 (2007)
Auditory nervous system, F. Netter, 1 CIBA Collection of Medical Illustrations: Nervous System 64 (13th printing 1980)
Automobile air-bag deployment and hearing loss, 32(4) J Otolaryngol 274 (2003)
Characteristics of tinnitus in a population of 555 patients: specificities of tinnitus induced by noise trauma, 12(1) Int Tinnitus J 64
(2006)
Conditions of the ears, The Merck Manual of Diagnosis and Therapy 1937-1962 (14th ed Berkow 1982 [one-volume hardbound edition])
Cranial nerves, F. Netter, 1 CIBA Collection of Medical Illustrations: Nervous System 42–43 (13th printing 1980)
D. Myers et al., Otologic Diagnosis and the Treatment of Deafness, 22 (no. 2) Clinical Symposia 35 (1970)
Effect of infrasound on cochlear damage from exposure to a 4 kHz octave band of noise, 225(1-2) Hear Res 128 (2007)

Environmental noise-exposed workers: event-related potentials, neuropsychological and mood assessment, 65(3) Int J Psychophysiol
228 (2007)
Evaluation of Noise Attenuation and Verbal Communication Capabilities Using Three Ear Insert Hearing Protection Systems Among
Airport Maintenance Personnel, 4(2) J. Occup. & Environ. Hyg. 114 (2007)
Exposure-effect relations between aircraft and road traffic noise exposure at school and reading comprehension: the RANCH project,
163(1) Am J Epidemiol 27 (2006)
Exposure to loud noise and risk of acoustic neuroma, 163(4) Am J Epidemiol 327 (2006)
Exposure to occupational noise: otoacoustic emissions test alterations, 72(3) Rev Bras Otorrinolaringol (Engl Ed) 362 (2006)
Hearing protection use in industry: The role of risk perception, 43(4) Safety Science 253 (2005)
Inner ear damage in children due to noise exposure from toy cap pistols and firecrackers: a retrospective review of 53 cases, 5(18)
Noise Health 13 (2003)
J. Sataloff, Hearing Loss (1966)
Low frequency noise and stress: bronchitis and cortisol in children exposed chronically to traffic noise and exhaust fumes, 6(23) Noise
Health 21 (2004)
Medicolegal decision making in noise-induced hearing loss-related tinnitus, 11(1) Int Tinnitus J 92 (2005)
M. Victor & R. Adams, "Common Disturbances of Vision, Ocular Movement, and Hearing," in Harrison's Principles of Internal
Medicine 101, 108 (9th ed Isselbacher et al. 1980)
Noise: a distraction, interruption, and safety hazard, 86(2) AORN J 281 (2007)
Noise exposure and hearing loss in agriculture: a survey of farmers and farm workers in the Southland region of New Zealand, 45(12)
J Occup Environ Med 1281 (2003)

Noise exposure and children's blood pressure and heart rate: the RANCH project, 63(9) Occup Environ Med 632 (2006)
Noise exposure and hearing conservation in U.S. coal mines—a surveillance report, 4(1) J Occup Environ Hyg 26 (2007)
Noise Exposure of Music Teachers, 1(4) J. Occupat. & Environ. Hygiene 243 (2004)
Occupational Noise Levels During Emergency Relief Operations in the Aftermath of Hurricane Katrina, 4(4) J. Occup. & Environ.
Hyg. 33 (2007)
Ototoxic occupational exposures for a stock car racing team: I. Noise surveys, 2(8) J Occup Environ Hyg 383 (2005)
Progressive hearing loss after closed head injury: a predictable outcome? 123(7) Acta Otolaryngol 836 (2003)
R. Baloh, "Hearing Loss" in Cecil Textbook of Medicine 1958 (16th ed Wyngaarden & Smith 1982
Requirements for the protection against aircraft noise, 6(24) Noise Health 9 (2004)
Surveillance of occupational noise exposures using OSHA's Integrated Management Information System, 46(5) Am J Ind Med 492
(2004)
Susceptibility to tinnitus revealed at 2 kHz range by bilateral lower DPOAEs in normal hearing subjects with noise exposure, 12(3)
Audiol Neurootol 137 (2007)
The bells are ringing: tinnitus in their own words, 48(3) Perspect Biol Med 396 (2005)
Therapeutics of hearing loss: expectations vs reality, 10(19) Drug Discov Today 1323 (2005)
Towards more effective methods for changing perceptions of noise in the workplace, 45(4) Safety Science 431 (2007)
Using the EPPM to Create and Evaluate the Effectiveness of Brochures to Increase the Use of Hearing Protection in Farmers and
Landscape Workers, 36(2) J. Appl. Commun. Resear. 200 (2008)

Additional References
Industrial noise control, technical information, United States Department of Labor, Occupational Safety and Health Administration,
Noise Control: A Guide for Workers and Employers (1980)
--------------------------------------------------------------------------------
[FN*] This article replaces Ear Injuries, 4 Am. Jur. Proof of Facts 561.
[FN**] Mr. Hair, a resident of Bloomington, Indiana, is a highly experienced medical author and a former assistant editor for medicine and science, Encyclopaedia Brittanica. He has written several medical articles for Proof of Facts 2d.
[FN***] Editor, Bancroft-Whitney Company.
Section 1 Footnotes:
[FN1] Joseph, Thelin, & Baker, Hearing Loss, Noise-Induced: Current Concepts, 78 Missouri Medicine 643 (Oct 1981). [hereafter cited as Joseph, 78 Missouri Medicine.].
[FN2] J. Hough, "Otologic Trauma," in Otolaryngology 1656 (2d ed Paparella & Shumrick 1980) [hereafter cited as Hough in
Otolaryngology].
[FN3] Id.
[FN4] See § 7, infra.
[FN5] See § 8, infra.
[FN6] See § 9, infra.
[FN7] See § 10, infra.
[FN8] § 10,infra.

[FN9] § 3, infra.
Section 2 Footnotes:
[FN10] W. Bloom & D. Fawcett, A Textbook of Histology 812 (1968) [hereafter cited as Bloom & Fawcett, A Textbook of
Histology].
[FN11] L. Arey, "The Ear," in Morris' Human Anatomy 1276 (11th ed Schaeffer 1953).
[FN12] Bloom & Fawcett, A Textbook of Histology 815.
[FN13] See Figure 1, infra, this section.
[FN14] See Figures 2 and 3, infra, this section.
[FN15] Endolymph resembles the body's intracellular fluid. Perilymph resembles the body's extracellular or cerebrospiual fluid.
Section 3 Footnotes:
[FN16] See §§ 4, 5, infra.
Trial Strategy
Regarding detection of simulated deafness, see Preparing and Using Experimental Evidence, 3 Am. Jur. Trials 427 § 60.
[FN17] Strictly speaking, the decibel system measures only the ratio of one sound level to another. The reference level of 0 decibels is arbitrarily defined to coincide with the average threshold of hearing. The absolute difference in decibels between the levels of two sounds equals 10 times the logarithm of the ratio of the intensity of the two sounds. That is, for example, if one sound is 20 times as intense as another, the logarithm of the ratio is approximately 1.3 (to the base 10), and the difference between the two sounds is approximately 13 decibels. If the formula is inverted, a difference of, for example, 50 decibels represents a ratio of 10 to the fifth power, that is, the louder sound is 100,000 times as intense as the softer sound. D. Myers et al., Otologic Diagnosis and the Treatment of Deafness, 22 (No. 2) Clinical Symposia 35, 36 (1970).
[FN18] United States Department of Labor, Occupational Safety and Health Administration, Noise Control: A Guide for Workers and
Employers 7 (1980).

[FN19] R. Baloh, "Hearing Loss" in Cecil Textbook of Medicine 1958-1959 (16th ed Wyngaarden & Smith 1982) [hereafter cited as
Baloh in Cecil Textbook].
[FN20] Regarding the Rinne test, see Figure 4, infra, this section.
[FN21] Id., 1959.
Regarding the Weber test, see Figure 4, infra, this section.
[FN22] Clinical Evaluation of Complaints Referable to the Ears, The Merck Manual of Diagnosis and Therapy 1938, 1939-1941 (14th ed Berkow 1982 [one-volume hardbound edition]) [hereafter cited as Merck Manual].
[FN23] Id., 1081.
[FN24] Baloh in Cecil Textbook 1960.
See also Merck Manual 1941.
[FN25] Baloh in Cecil Textbook 1960; Merck Manual 1941.
Section 4 Footnotes:
[FN26] J. Sataloff, Hearing Loss 5 (1966). [hereafter cited as Sataloff, Hearing Loss].
[FN27] Id., 21, 26, 30.
Cross-reference: Regarding treatment of hearing loss due to trauma, see § 11, infra.
[FN28] Merck Manual 1939.
[FN29] Sataloff, Hearing Loss 31.
[FN30] Cross-reference: Regarding recruitment and tone decay, see § 5, infra.
[FN31] Merck Manual 1947.

[FN32] Sataloff, Hearing Loss 50.
[FN33] Id., 51.
[FN34] Id., 52.
[FN35] Id., 53, 54.
[FN36] Id., 75.
Note: The treatment of otitis media or other nontraumatic causes of hearing loss is not within the scope of this article.
Section 5 Footnotes:
[FN37] Baloh in Cecil Textbook 1959; Merck Manual 1943; M. Victor & R. Adams, "Common Disturbances of Vision, Ocular
Movement, and Hearing," in Harrison's Principles of Internal Medicine 101, 109 (9th ed Isselbacher et al. 1980).
[FN38] Merck Manual 1943.
[FN39] Baloh in Cecil Textbook 1959.
[FN40] Id.; Merck Manual 1943.
See also D. Myers et al., Otologic Diagnosis and the Treatment of Deafness, 22 (no. 2) Clinical Symposia 45 (1970).
[FN41] Baloh in Cecil Textbook 1959.
Section 6 Footnotes:
[FN42] Merck Manual 1944.
[FN43] See § 8, infra.

[FN44] Merck Manual 1300, 1301.
[FN45] Id., 1282, 1980, 1981.
[FN46] Id., 1955-1956; D. Myers et al., Otologic Diagnosis and the Treatment of Deafness 22 (No. 2) Clinical Symposia 60 (1970);
Baloh in Cecil Textbook 1960.
[FN47] Merck Manual 1957, 1958; Baloh in Cecil Textbook 1960.
[FN48] Merck Manual 1958; Baloh in Cecil Textbook 1960.
[FN49] Merck Manual 1961–62; Baloh in Cecil Textbook 1961.
[FN50] W. Shapiro, "Intracranial Tumors and States Causing Increased Intracranial Pressure," in Cecil Textbook 2128, 2130.
[FN51] Merck Manual 1958, 1959.
[FN52] Baloh in Cecil Textbook 1961.
Regarding presbycusis, see also D. Myers et al., Otologic Diagnosis and the Treatment of Deafness, 22 (no. 2) Clinical Symposia 41,
Figure 1 (1970).
Section 7 Footnotes:
[FN53] Hough, in Otolaryngology 1656.
[FN54] Id., 1658, 1660; Healy, Hearing Loss and Vertigo Secondary to Head Injury, 306 New Eng J Med 1029 (April 29, 1982).
[hereafter cited as Healy, 306 New Eng J Med].
[FN55] Hough, in Otolaryngology 1665–1666.
[FN56] Id., 1666.
[FN57] Id., 1667.

[FN58] Id.
[FN59] Id., 1669.
[FN60] Id.; Healy, 306 New Eng J Med 1030.
[FN61] Hough in Otolaryngology 1669–1670.
[FN62] Id., 1672.
[FN63] Makishima & Snow, Histopathologic Correlates of Otoneurologic Manifestations Following Head Trauma, 86 Laryngoscope
1311, 1312 (1967).
Section 8 Footnotes:
[FN64] Merck Manual 1949, 1950, 2143.
[FN65] Id., 1949, 1950.
[FN66] Id., 2137.
[FN67] Sataloff, Hearing Loss 179–182.
Regarding noise-induced hearing loss, see § 9, infra.
Section 9 Footnotes:
[FN68] Merck Manual 1959, 1960.
[FN69] Joseph, 78 Missouri Medicine 640, 643.
[FN70] Occupational Safety and Health Act of 1970, 29 USCA §§ 651 et seq.; 2 Federal Regulation of Employment Service § 10:30.
See Tables 1 and 2, infra, this section.
A.L.R. Library

What is "recognized hazard" within meaning of general duty clause of Occupational Safety and Health Act (29 USCA § 654(a)(1)), 50
A.L.R. Fed. 742.
[FN71] Regarding environmental noise control, see 42 USCA § 1858, establishing an Office of Noise Abatement and Control within the Environmental Protection Agency.
Section 10 Footnotes:
[FN72] Merck Manual 1960, 1961.
[FN73] J. Snow, Jr., "Surgical Disorders of the Ear, Nose, Paranasal Sinuses, Pharynx, and Larynx," in Davis-Christopher Textbook of Surgery 1401 (11th ed Sabiston 1977).
[FN74] Coplan, Post, et al., Hearing Loss After Therapy with Radiation, 135 American Journal of Diseases of Children, 1066, 1067
(Nov 1981).
Section 11 Footnotes:
[FN75] Healy, 306 New Eng J Med 1031.
[FN76] Sataloff, Hearing Loss 62.
[FN77] Sataloff, Hearing Loss 50, 80, 82, 83.
[FN78] Hough in Otolaryngology 1675.
[FN79] Id., 1672, 1673.
[FN80] Id., 1673.
[FN81] Id., 1674.
[FN82] Id., 1675.

Section 12 Footnotes:
[FN83] Merck Manual 1959.
[FN84] D. Meyers et al., Otologic Diagnosis and the Treatment of Deafness, 22 (no. 2) Clinical Symposia 35, 49 (1970).
Section 14 Footnotes:
[FN85]
Trial Strategy
—Forensic Economics—Valuation of Business and Business Losses, 16 Am. Jur. Proof of Facts 2d 253.
Forensic Economics—Losses in Case of Disability, 15 Am. Jur. Proof of Facts 2d 311.
[FN86]
Trial Strategy
Damages: Harmful Effect of Prolonged Inactivity Required in Treatment of Personal Injuries, 25 Am. Jur. Proof of Facts 679.
[FN87]
Trial Strategy
Pain and Suffering, 23 Am. Jur. Proof of Facts 2d 1.
[FN88]
A.L.R. Library
Sufficiency of evidence, in personal injury action, to prove future pain and suffering and to warrant instructions to jury thereon, 18
A.L.R. 3d 10.
[FN89]
Trial Strategy
Phobic Neurosis (Phobic Reaction) Following Trauma, 29 Am. Jur. Proof of Facts 2d 571.

[FN90]
Trial Strategy
Recovery of Damages for Loss of Enjoyment of Life, 24 Am. Jur. Proof of Facts 171.
[FN91]
Legal Encyclopedias
22 Am. Jur. 2d, Damages §§ 243, 251–252.
Westlaw. © 2009 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
40 AMJUR POF 2d 263
END OF DOCUMENT
(c) 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.