Washington Hearing Loss Lawyer & Attorney : John Waldo Law Firm : Hard of Hearing, Disability, Hearing Impairment : Seattle, Bainbridge, Washington, Pacific Northwest

Recognizing that the odds of becoming totally or partially disabled during one's work life are fairly high, many far-sighted employers and even a few individuals carry long-term disability insurance. Those policies have proved to be a godsend to many of us with hearing loss.

The general thrust of disability insurance is that it replaces a portion of your income if your physical condition materially interferes with your ability to earn a living. While those policies have many variations, and there may be exceptions to every generality, most of them do cover hearing loss. And unlike Social Security, many of the private policies insure against the inability to do your own pre-disability work -- the fact that you can do other work may not prevent you from receiving benefits.

The cause of the loss is generally not significant -- coverage would exist if the hearing loss was caused naturally rather than through workplace noise or accident. And while a sudden hearing loss is most often the trigger for coverage, many policies are written in such a way that a change in workplace standards could trigger coverage even without a change in the individual's hearing.

What is generally involved in a disability insurance claim is medical determination that the condition exists, followed by a demonstration as to why the condition prevents the claimant from working at pre-disability levels.

Under Washington law, an insurer who unreasonably denies a claim is liable for attorneys' fees, and may be liable for as much as three times the benefits due. While that statute exempts health-insurance policies, it DOES NOT exempt disability-benefit policies.

A fairly recent article in the New York Times said that some disability insurers are demanding that a claimant first apply for Social Security disability benefits, even in situations where the disability insurer knows that the applicant won't receive them. Because the threshhold for receiving Social Security benefits based on hearing loss is so high, as discussed in the entry involving Social Security, we would suspect that in most instances, any insurer who required such a filing would simply be trying to delay payment, in which case, a claim for recovery of attorneys' fees would seem quite strong, and a claim for enhanced damages would be credible.

 

 

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Unlike state L&I benefits, Social Security disability tends to be an all-or-nothing proposition. The disability must be permanent, and it must be severe enough to prevent the individual from engaging in any gainful employment -- there are neither temporary nor partial benefits.

To base a Social Security disability claim on a hearing loss, the "bright-line" test for disability is a loss in both ears such that the average threshhold is 90 db or greater, measured by the method explained in the "How Bad Is My Hearing?" section. If your loss is less severe, you will have to demonstrate that its impact on you is equally serious -- essentially, that you are functionally totally deaf.

Even if you demonstrate disability under those tests, you will still not receive benefits if you are actually working and earning more than $980 per month.

As a general philosophical matter, we don't encourage filing Social Security disability claims based solely on hearing loss. We regard hearing loss as an inconvenience that can be overcome with proper accommodations, so our first approach is to look for ways that the affected individual can remain or become employed.

In those instances where continued employment is simply not possible, such as where an employer is too small to be covered by state and federal laws protecting those of us with physical challenges and where the affected invdividual is so close to retirement age that retraining isn't feasible, then we will assist in obtaining Social Security disability benefits.

Like most attorneys, we will handle such cases on a contingency basis, where our fee is based on a portion of the recovered benefits. Under federal law, the fee can only be based on the amount of accrued but unpaid benefits recovered -- it cannot be based on the value of future benefits. Fees are limited to 25% of the back benefits -- it's a federal crime to charge more.

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The state of Washington recognizes hearing loss caused by noise exposure as one form of occupational injury deserving compensation. Compensation is awarded without regard to who may be at fault.

Washington treats hearing loss as a permanent partial disability, meaning that the affected individual is still able to work, but may not be able to earn as much as before the loss. Individuals who suffer a permanent partial disability are entitled to a single lum-sum payment. 

Some large employers are self-insured, and pay the required compensation directly to the worker. Other employers belong to a statewide insurance pool administered by the Division of Labor & Industries (L&I). In either case, compensation is determined according to a schedule mandated by the Legislature.

The amount paid for hearing readjusts every July 1 based on changes in the Consumer Price Index. As of July 1, 2007, the lump-sum amount paid for complete loss of hearing in both ears is $81,302.91. The amount paid for complete loss of hearing in one ear is $13,550.40. (A discussion of how hearing loss is measured in found in the "How Bad Is My Hearing?" section)

Where the hearing loss is partial rather than total, L&I benefits are paid in proportion to total loss, so someone with a 70 percent binaural loss would receive 70 percent of the amount awarded for a total loss.

L&I claims are originally filed by the claimant's physician. If the claim is denied, then claimants are advised to hire attorneys to appeal the denial. A successful claimant is entitled to recover attorneys' fees as well as the award, so often, the claimant need not pay fees unless the claim is successful, and need not pay the attorney out of the amounts recovered.

L&I also pays for medical costs -- this is one situation in which someone else will actually pay for needed hearing aids.

The legal questions surrounding compensation for hearing loss have generally involved trying to fix the time when the loss occurs. Employers have often argued for the earliest possible date of onset, because compensation then would be paid under an old and more modest benefit schedule. Washington's court have resolved this dilemma by adopting a sliding scale in which the first measured loss is compensated under the schedule in effect at the time of the initial loss, and then as further loss occurs, the incremental loss is compensated under a newer schedule. It's a multi-step but fairly straightforward computation.

Because hearing generally diminishes as we get older, some medical experts have tried to separate out age-related hearing loss from noise-related loss. Washington courts have rejected that apportionment formula, stating that the L&I statutes require individualized determinations, and that overall averages can't be used. As a result, a 60-year-old worker with a noise-related loss would receive the same compensation as a 30-year-old worker with the same loss, even though there is a reasonable statistical probability that the 60-year-old's hearing would be worse had neither been exposed to noise.

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HEARING AIDS

For most of us with hearing loss, our best remedy is one or two hearing aids. Unfortunately, most health-insurance policies specifically exclude hearing aids, as does Medicare. So we must absorb those costs ourselves.

The reason for that almost universal exclusion is obscure, but apparently dates from a time prior to electronic miniaturization, when hearing aids were very primitive and largely ineffective. The Hearing Loss Association of Washington is  working on Hearing Aid Insurance Legislation (HAIL), to require some coverage for hearing aids.

The picture is a little brighter for those (primarily self-employed people) who have bought high-deductible health-insurance policies coupled with a Medical Savings Account. The tax-deductible money put into the MSA can be used not only to meet the deductible amounts of the insurance policies, but to pay for medical needs not covered by the insurance policy, which includes hearing aids. So for those individuals, hearing aids can at least be purchased using pre-tax dollars.

COCHLEAR IMPLANTS

Cochlear implants (CIs) have proven to be a huge blessing for those who lose all or almost all of their hearing, especially those who do so later in life and have always been part of the hearing community. While often effective and widely prescribed, CIs are expensive -- $60,000 and up. Because of that cost, insurance coverage is critical -- my suspicion has been that many of not most CI candidates will simply forego the treatment if insurance coverage is unavailable.

Private Insurance

Health insurance policies are similar, but not identical, and one hates to speak in generalities because there may be exceptions. That said, my understanding is that most Washington health insurance plans will cover the cost of a CI.

Because insurance coverage is so critical, the implant manufacturers will work actively to make sure that potential recipients are covered by their insurance. Some of the manufacturers band together to support a non-profit corporation in California called the Let Them Hear Foundation Insurance Advocacy Program, which offers low-cost advocacy services to potential recipients.

Public Insurance/Medicare

In 2005, Medicare issued a National Coverage Determination stating that it would reimburse for CI treatment on patients with moderate-to-profound hearing loss in both ears and who receive limited benefit from hearing aids, which involves a test of ability to recognize spoken words in a recorded sentence. When a physician certifies that a Medicare recipient meets the guidelines of the National Coverage Determination, the service doctors and manufacturers should be assured of Medicare reimbursement.

Bilateral Implants

The principal debate presently about CIs is over whether implanting both ears is sufficiently cost-effective to be declared "medically necessary," and therefore covered by insurance. Our understanding is that the trend is in the direction of insurance reimbursement for bilateral implants, but that it is not yet a universally accepted practice.

Medicare appears to be a significant holdout, and the real problem with Medicare is pre-authorization. When Medicare is asked to pre-approve bilateral implants, it doesn't say "yes" or "no" -- it simply doesn't say. Unfortunately, when Medicare declines to pre-authorize, that decision is final, and can't be appealed to anyone. The candidate must undergo the surgery and then ask Medicare to reimburse, and if Medicare declines, that decision can be reviewed internally and ultimately appealed to the courts. Unfortunately, though, few candidates have the resources to undertake expensive surgery without the assurance of Medicare reimbursement.

My office is currently representing a Seattle woman in this exact situation. We believe the most effective approach is to petition Medicare for a National Coverage Determination stating that bilateral implants are covered. Should Medicare either fail to act or determine that bilateral CIs are not covered, then that decision is subject to review, both internally and in the courts. We have asked the LTH Foundation to either undertake this effort or to work in partnership with us. That effort will be the subject of future posts.

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The first step in assessing eligibility for insurance benefits is to ascertain the degree of your hearing loss. Everyone's loss is different, but oddly, there is a generally accepted method by which the degree of loss is measured.

The calculation starts with a pure-tone audiogram, which plots the loudness level (in decibels) at which you perceive sound at different frequencies or pitches (measured in megahertz). Most hearing loss occurs in high tones. For example, at a very low frequency or pitch of 125 hz -- the equivalent of a really low note on a cello -- the decibel threshhold might be 25, meaning you can hear a relatively soft note. At a very high frequency of 6,000 hz -- the chirp of a cricket -- the threshhold at which you first hear the tone might be 100 decibels, a level that someone with full hearing would find quite painful.

Although the matter is the subject of considerable debate, the generally accepted rule, which Washington courts use, is that the critical frequencies for understanding speech are 500, 1,000, 2,000 and 3,000 hz. So to determine a percentage of hearing loss, you average the decibel threshhold shown on the audiogram for those four frequencies (if the db threshhold is over 100 db, you use 100).

That's far from the end of the calculations. Audiology professionals generally agree that one's ability to function doesn't begin to drop until the decibel threshhold reaches 25 db. On the other end of the spectrum, they agree that if the average threshhold is greater than 92 db, the person has no useful hearing. So to take those outer boundaries into consideration, you subtract 25 from your average threshhold, then multiply the remaining number by 1.5. The resulting number is your percentage hearing impairment in that ear.

One last computation is needed. One ear is not as good as two, but we'll do most of our hearing through our good ear. So rather than simply taking an average of each ear's threshhold, you give five times the weight to the better ear. Your overall hearing impairment, then, is five times the better ear plus the worse ear, divided by six.

Here is an example -- these values come from my most recent audiogram. My better right-ear threshholds are 50 db at 500 hz, 80 db at 1,000 hz, and in excess of 100 db at 2,000 and 3,000 hz. The total is 330, and the average is 82.5. Subtracting 25 and multiplying by 1.5 equals 86.25 percent impairment in that ear. My left ear threshholds at the four relevant decibel levels are 65, 85, 100 and 100 for a total of 350, an average of 87.5, and an impairment percentage of 93.75. Multiplying the better-ear number by five, adding the other number and dividing by six yields an overall impairment percentage of 88.5.

Here is the worksheet used by Washington physicians to calculate hearing loss.

Now it's critical to remember that the numbers don't tell the whole story -- not by any means. In the first place, impairment is calculated without our hearing aids, and good aids can reduce our level of impairment dramatically. Whether our loss occurred before or after we learned to speak has an enormous impact on our ability to speak clearly. Our speech-recognition (lip-reading) skills vary enormously.

The audiogram and impairment calculations may describe our hearing loss. But those number need not define or limit us as individuals. With the help called for by state and federal law, we can fully function in a hearing society. My law practice is dedicated to ensuring that result.

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INSURANCE COVERAGE FOR EFFECTS OF HEARING LOSS

Hearing loss is a personal inconvenience, but it is frequently much more than that. Losses can dramatically affect our employment and earning capacity. The devices and treatments that we need to cope with our loss can be expensive -- sometimes prohibitively so.

The good news is that insurance in some form often addresses these issues. But because hearing loss is usually not anyone's fault, and because so many of us are in denial about the existence and extent of our loss, we often don't even consider investigating whether we might be eligible for certain beneffits. And because of the invisible nature of hearing loss, we may not get the same level of cooperation in seeking benefits that someone with a highly visible condition might receive.

This site contains general information about certain types of insurance. Health insurance -- that is, payment or reimbursement for medical costs, is provided by both private insurance carriers and by public plans -- Medicare and Medicaid. Disability insurance to compensate us for the loss of our earning capacity is also provided by both public and private carriers. Public insurance comes in the form of Washington State workers' compensation insurance, generally known as L&I (for Labor and Industries) coverage, and Social Security disability insurance. Private insurance is provided by a bewildering array of different policies.

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