Article Summary

• Liability for employers under Section 8(f) of the LHWCA is capped at the lesser of 104 weeks or the extent of hearing loss attributable to employment, with the Special Fund covering the remainder.
• Successfully navigating 8(f) claims requires early action, specifically raising the claim before the district director’s initial consideration.
• While 8(f) addresses indemnity benefits, medical benefits and attorney fees are handled separately.
• Employers and Carriers must be prepared to address complex issues such as prior claims, incomplete audiometric data, and the nuances of calculating impairment ratings.

Navigating 8(f) Claims Related to Hearing Loss

Section 8(f) of the Longshore and Harbor Workers’ Compensation Act (LHWCA) is designed to prevent discrimination against workers with pre-existing disabilities by limiting employer liability in cases where a subsequent work-related injury combines with the pre-existing condition to cause greater disability. In hearing loss claims, an employer’s liability is capped at the lesser of 104 weeks or the extent of hearing loss attributable to the employment, with the Special Fund covering the remainder.

To successfully utilize Section 8(f), it must be shown that the employee had a pre-existing permanent partial disability that was “manifest to the employer,” and that the current disability resulted from the combination of this prior condition and the work-related injury. For hearing loss claims, the 5% test/retest variability in audiograms is a critical factor. To elaborate, if a party is seeking to use Section 8(f), they must show that the pre-existing and subsequent audiograms are not within a range of 5% from each other. Finally, it is essential to raise the 8(f) claim early in the process, before the district director’s initial consideration, in order to prevent the absolute bar from being imposed on Employer and Carrier as it relates to their use of Section 8(f).

The application of 8(f) can vary significantly depending on the specifics of each case. For instance, when a claimant has a history of hearing loss claims, the employer may be entitled to a dollar-for-dollar credit; however, if 8(f) is involved, this credit may go to the Department of Labor. In cases with multiple audiograms, strategic negotiation and a thorough understanding of the data are crucial to determining the extent of liability and the applicability of 8(f). It is important for an employer and carrier to know the facts of their claim in order to adequately determine the best avenue for each claim’s handling.

While Section 8(f) can limit employer liability for indemnity benefits, it does not extend to medical benefits. To address medical benefits, a separate Section 8(i) settlement application is necessary if the parties desire to close those out. Additionally, attorney fees can be resolved within 8(f) stipulations, provided an LS-4 form is also filed.

The Upshot

Successfully navigating 8(f) claims in hearing loss cases requires a blend of legal acumen, claim knowledge, and strategic thinking. Employers and Carriers must be prepared to address complex issues such as prior claims, incomplete audiometric data, and the nuances of calculating impairment ratings. By staying informed on the latest case law and best practices, practitioners can effectively advocate for their clients and achieve optimal outcomes in these challenging cases.