By Steven M. Birnbaum, Law Offices of Steven M. Birnbaum, San Rafael, California
Section 908(a)(13) (33 U.S.C.S. § 908(a)(13)(E)) defines compensation for disability under the Longshore and Harbor Workers' Compensation Act (33 U.S.C.S. § 901 et seq.) and prescribes that “Determinations of loss of hearing shall be made in accordance with the [Guides for the Evaluation of Permanent Impairment] as promulgated and modified from time to time by the American Medical Association.” Yet, nowhere in the act itself, is there any mention of tinnitus or the laws of equilibrium.
The AMA Guides do in fact deal with impairment for tinnitus under hearing loss, leading to the assumption that it must be that tinnitus was hearing-loss-induced rather than independently arising from other than hearing loss. Yet it might be that tinnitus could arise independently from hearing loss and thus the question arises as to how to rate the impairment. If it is considered to be scheduled under the Act, it must be defined in the schedule since all other impairments are unscheduled and rated by Section 908(c)(21) (33 U.S.C.S. § 908(c)(21)). As mentioned above, however, if it is not rated as part of hearing loss, then it appears that there must be a wage loss in order to obtain compensation. So the severity of tinnitus must rise to the level of impairing wage earning ability and the question is can this happen?
Do those representing injured workers and representing the interests of the employer have an idea of how extensive tinnitus can be? Probably not, since claimants are not usually extensively questioned about the symptoms of this little-known affliction.
Some years ago an article appeared in the New Yorker magazine dated February 9, 2009, by Jerome Groopman, who has written extensively on medical topics for that magazine. The title of the article was “That Buzzing Sound; The Mystery of Tinnitus.”
This lengthy article was no doubt a rare public examination of the condition that afflicts many workers and others. It was probably written because the author himself became afflicted with tinnitus. The author early on described tinnitus as “the false perception of sound in the absence of an acoustic stimulus, a phantom” and called it “one of the most common clinical syndromes in the United States, affecting 12% of and almost 14% of women who are 65 and older.” The Sixth Edition of the AMA Guides defines tinnitus as a term used to describe perceived sounds that originate within a person, rather than in the outside world. Although nearly everyone has mild tinnitus momentarily at some point in life, continuous tinnitus is abnormal. The Guides did go on to say that “[t]his symptom is more common in people with otology problems, although tinnitus can also occur in otologically normal patients.” (AMA Guides, Sixth Edition, section 11.2 B)
Tinnitus only rarely afflicts the young, with one significant exception: those serving in the armed forces. Tinnitus affects nearly half the soldiers exposed to blasts in Iraq and Afghanistan. So those handling cases under the Defense Base Act should pay closer attention to any complaints of noise in the ears. This is especially true with those defense contractors that have been exposed to combat. Both in Iraq and Afghanistan many contractors have had the unpleasant experience of undergoing mortar shelling, being close to the scenes that include the exploding of IEDs, and the close proximity to small arms and artillery fire. Close to 30% of returning military from the war zones have been found to have varying degrees of tinnitus; thus it should be no surprise that military contractors could have similar percentages. This could turn into a very difficult and complex problem with the concurrent diagnoses of post-traumatic stress disorder because one of the identifying elements of that diagnosis is auditory hallucinations.
Groopman in his article further described the breadth and scope of the problem by saying:
The range of tinnitus’s severity is as wide as the ways of describing the syndrome. Martin Amis, in “Money,” characterizes the tinnitus that his character John Self suffers as “jet take-offs, breaking glass, ice scratched from the tray.” In “A Pair of Blue Eyes,” Thomas Hardy’s William Worm complains of “people frying fish: fry, fry, fry, all day long in my poor head.” Some patients also suffer from hyperacusis, in which certain sounds are amplified in a painful way. As part of a standard evaluation, patients are given a series of tests: a tympanogram, to determine how the eardrums respond to air pressure; an assessment of the cochlea’s response to sound; and a standard audiogram, to test the frequency and intensity of sounds that define the span of hearing. Although my eardrums functioned well, Stocking said, the last two tests showed signs common to hearing loss at high frequencies, usually owing to age and noise trauma.
From the description above, the intensity of tinnitus can range from slight to severe. The AMA Guides indicate that the rating of up to 5% can be added to a hearing loss for tinnitus. The Fifth and Sixth Editions require some ratable hearing loss either unilaterally or bilaterally. Yet in order to get the add-on, the evaluator must evaluate the impact of the tinnitus on the ability to perform activities of daily living. Thus the question arises as to when a severe case of tinnitus might cross into the realm of a neurological or psychiatric illness and if it does, when does it cross the line from a hearing loss to a psychological injury or neurological injury and thus become an unscheduled rating under the Act. The Sixth Edition states there is currently no way to scientifically evaluate tinnitus, although validated instruments such as the Tinnitus Handicap Inventory have been used. This is much dependent on a detailed examination of the interference of the tinnitus with the claimant’s daily activities of life or work and some understanding of the emotional effect of the affliction. It would be prudent, in cases of severe tinnitus, to question the claimant and even send the claimant for evaluation to a psychological expert.
In addition, Groopman has suggested in his article that a combined counseling with sound therapy and using a neural background noise has been developed that is called tinnitus retraining therapy. This has been used by Christina Stocking, who was trained by Prof. Pawel Jastreboff of Emory University in Atlanta, Georgia, and routinely treats patients with various therapies for tinnitus. She has also described a device currently approved by the FDA produced by a company called Neuromonics. It resembles an MP3 player and is meant to induce relaxation, which was a key component of the tinnitus management strategy. Some say that as simple a device as a sound generator may also help relieve the effects of the tinnitus. In essence, all of the above could be reasonable and necessary treatment for the condition called tinnitus depending on its severity and its interference with activities of daily living.
There was an interesting case a number of years past from the state of Washington titled; In Re: Robert K. Lenk, Sr; claim number – N-048062, docket number 91 6525 (found on the web at http://www.biia.wa.gov/SignificantDecisions/916525.htm). It stands for the proposition that the claimant’s tinnitus is a separate medical condition from his hearing loss, citing both sides’ medical experts as agreeing that tinnitus and hearing loss can occur independently. This case adds to the question of how a tinnitus injury is rated. As mentioned above, tinnitus is primarily confined to the schedule and a maximum of 5% impairment is awarded if it arises from hearing loss, but if not and it creates a wage loss, it would be rated as any other unscheduled injury. A review of case law under the Act does not reveal whether the situation has been addressed by the court yet.
© Copyright 2013 Law Offices of Steven M. Birnbaum. All rights reserved. Reprinted by permission. This article will appear in an upcoming issue of the Benefits Review Board Service—Longshore Reporter (LexisNexis).