LOIS Senior Associate Olivia Barna and Paralegal Brenna O’Brien secured a disallowance in a New York Workers’ Compensation occupational disease claim. The 80-year-old Claimant, a retired truck driver, alleged binaural occupational hearing loss due to exposure to loud noise during the course of his employment with the Self-Insured Employer in 2008. It was not until 15 years later that he sought treatment. The Claimant’s treating doctor conceded that the Claimant’s hearing loss was consistent with the aging process and long-standing noise exposure, conceding that there was no way of knowing how much of the Claimant’s hearing loss was from his work and how much was from his age. At trial, the Claimant testified that he realized that he may have had hearing loss “a few years ago,” and that he was recommended to obtain hearing aids but did not adhere to the recommendation. Barna first argued for disallowance of the claim based on Claimant’s failure to meet his burden of proving causal relationship. The Law Judge and established this matter for occupational bilateral hearing loss.
Barna appealed this decision to the Board Panel and obtained a reversal. The Memorandum of Board Panel Decision, filed September 24, 2024, found that the Claimant failed to demonstrate with competent medical evidence that he sustained a causally related occupational binaural hearing loss. As such, the claim for occupational binaural hearing loss is disallowed and the case is closed. The Board Panel highlighted that the treating doctor failed to account for the almost 15 years that passed from the Claimant’s retirement from his employment until his examination in 2023, indicating the doctor’s medical opinion was “mere surmise” and does not show a probability as the underlying cause of the Claimant’s hearing loss. Thus, no liability was found for the client.
