According to the Occupational Safety and Health Administration (OSHA), 22 million workers are exposed to potentially damaging noise at work each year. In 2017, employers paid $1.5 million in penalties for not protecting workers from noise. OSHA estimates approximately $242 million is spent on workers’ compensation claims for hearing loss. But how much noise is too much? When should you provide protection? And how in the world do you defend against a vague claim alleging exposure to “loud noise”?

Each time a claimant files a claim for occupational hearing loss (as opposed to traumatic hearing loss), the claim primarily relies on lay testimony and largely uncorroborated statements from the claimant that the noise at work is “loud” and that the claimant is exposed to such loud noises all day. In many cases, those statements alone, along with a doctor’s report that generally states “claimant is exposed to noise at work” is sufficient to establish the claim. After all, the judge cannot hear what the claimant hears. Defense counsel cannot hear what the claimant hears. The claimant’s doctor cannot hear what the claimant hears.

So again, you ask, how much noise is too much? When do you have to provide protection? And how can we defend these claims?

OSHA sets legal limits on noise exposure in the workplace. These limits are based on a worker’s time weighted average over an eight hour day. With noise, OSHA’s permissible exposure limit (PEL) is 90 dBA for all workers for an eight hour day. The OSHA standard uses a 5 dBA exchange rate. This means that when the noise level is increased by 5 dBA, the amount of time a person can be exposed to a certain noise level to receive the same dose is cut in half.

The National Institute for Occupational Safety and Health (NIOSH) has recommended that all worker exposures to noise should be controlled below a level equivalent to 85 dBA for eight hours to minimize occupational noise induced hearing loss. NIOSH has found that significant noise-induced hearing loss occurs at the exposure levels equivalent to the OSHA PEL based on updated information obtained from literature reviews. NIOSH also recommends a three dBA exchange rate so that every increase by three dBA doubles the amount of the noise and halves the recommended amount of exposure time.

In 1981, OSHA passed new regulations requiring employers to implement a Hearing Conservation Program where workers are exposed to a time weighted average noise level of 85 dBA or higher over an eight hour shift. Hearing Conservation Programs require employers to measure noise levels, provide free annual hearing exams and free hearing protection, provide training, and conduct evaluations of the adequacy of the hearing protection equipment unless changes to tools, equipment and schedules are made to reduce exposure below the 85 dBA level. For more, please click here. for a summary of the required components of OSHA’s hearing conservation program for general industry.

We know that noise levels above 85 dBA are generally considered to carry a risk of occupational hearing loss, and that the maximum permissible level is 90 dBA. NIOSH has created a comparison tool for various sound levels. You see that 85-90 dBA is somewhere between a Freight Train and a boiler room.

Now, how do we defend against these claims? The first thing you should do upon receiving notice of a hearing loss claim, after determining whether to accept or deny the claim, is to get a professional noise reading completed by an Occupational Health and Safety Specialist or Technician as quickly as possible. These technicians specialize in collecting and analyzing data on many types of work environments. A specialist inspects workplaces for compliance with safety regulations, and technicians work with specialists in conducting tests and measuring hazards in the work place. The resultant report will contain the average decibel level, the time weighted average, and the projected time weighted average. If the average decibel levels are below 85 dBA, you have the best possible proof that the claimant was not exposed to noise loud enough or consistent enough cause hearing loss.

The report will then be entered into evidence much like a vocational rehabilitation report. However, given that the report may need to be authenticated, and the specialist or technician may need to testify, these tests should be run as soon as possible, and the report provided to defense counsel so that it may be submitted with the PH-16.2 and the specialist or technician identified as an employer witness. The report should then be provided to the IME doctor for a comment on the possibility of the particular noise readings taken causing the claimant’s hearing loss. After depositions, the Judge will make a decision. If your noise readings are under the industry standard 85 dBA, (and, of course, the lower the noise readings are, the better), it is hard to imagine that any Judge would ignore these scientific readings to establish a hearing loss claim based on claimant’s vague descriptions of “loud” noises. You can, and should, deny such a claim confidently!