The Oregon Workers’ Compensation Board recently ruled that a worker’s hearing loss was due to not only to exposure to excessive noise, but as a result of Agent Orange induced diabetes while serving in the military. The injured worker argued the doctrine known as the “last injurious exposure” rule of proof. This rule generally states that all of an injured worker’s employment that could have caused the condition should be considered in determining whether or not a medical condition is work related.
The last injurious exposure rule is common with hearing loss claims. At our office, we have seen many plywood millworkers invoke the last injurious exposure rule because they have worked for several employers in the same building, or have moved from one mill to another throughout their career. It would be unfair to the worker to expect proof that one specific employer was the major cause of noise induced hearing loss.
Hearing loss claims are “occupational disease” claims. This means that the injured worker must show that the exposure to noise, over the course of his or her career, is the major cause of the hearing loss. In other words, the contribution from excessive noise at work has to be greater than any other cause or causes combined in order for the claim to be accepted. This is different than the standard in Washington, and as a result, hearing loss claims in Oregon are challenging.
As with any hearing loss claim, this occupational hearing loss case turned on medical opinions. The insurance companies will often go to the same doctor to obtain an opinion that the noise exposure at work is not the major cause of the hearing loss. However, this case presented an interesting twist. Instead of the injured worker arguing that his lifelong exposure to noise caused hearing loss, his treating physician explained that the injured worker’s exposure to Agent Orange during his military service caused diabetes, and that the diabetes was also causing hearing loss. That exposure, combined with exposure to excessive noise in the work place, amounted to the major contributing cause of the hearing loss.
Employer doctors will usually look at every other possible cause of hearing loss, including diabetes, to argue that excessive noise at work over several decades was not the major cause of the hearing loss. In this case, the injured worker’s treating physician went deep into the medical history to determine all of the actual causes of his patient’s hearing loss.
This is a good case for injured workers.