Noise induced hearing loss: A client's guide

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What is it and how do they occur?

It is estimated that nearly a quarter of a million workers in the UK suffer some form of hearing loss as a consequence of working in noisy environments. The two most common hearing problems are noise induced hearing loss and tinnitus.

Noise Induced Hearing Loss, which can also be referred to as Industrial Deafness or Occupational Deafness, is a condition that results in the loss of hearing over a prolonged period of time as a consequence of working in a noisy environment.

The Health and Safety Executive have estimated that over one million employees are currently at risk of suffering from future Noise Induced Hearing Loss due to the noisy environments in which they work. The Health and Safety Executive (HSE) have implemented lower and upper noise level guidelines. The lower exposure actions level is an 80 decibel weekly or daily exposure level. At this level the employer must be responsible for providing employees with training and information on noise levels as well as making hearing protection available to staff. At the upper end of the noise scale the HSE have recommended that no employee should be subjected to average noise levels in excess of 87 decibels in the workplace.

Due to the nature of the work certain occupations have higher rates of Noise Induced Hearing Loss. These are often located in construction, music, engineering or factory work.

It is likely that if you are suffering from hearing loss and have worked for a significant period of time in a noisy environment since 1963, whereby you would have had to raise your voice significantly or shout in order to communicate, and you were not provided with any ear protection that you are suffering from Noise Induced Hearing Loss.

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Consequences of Noise Induced Hearing Loss

If you have worked in a noisy environment for a significant period of time since 1963, where the noise level is/was such that you would have to raise your voice or shout to be heard in order to communicate with a colleague and you are now experiencing symptoms of hearing loss you may be suffering from Noise Induced Hearing Loss.

Common symptoms are:

  • Lack of hearing in one or both ears.
  • Failing to hear the telephone ring or hold a conversation over the telephone.
  • Missing sentences in a conversation.
  • Struggling to hear when there is background noise.
  • Having to turn the television or radio up loudly in order to hear it.
  • Failing to hear the doorbell.
  • Constant ringing/buzzing or hissing noises, which can be a sign of tinnitus.

Tinnitus is a form of ringing, buzzing or whistling type of sound in one or both ears. It is estimated that approximately 15% of people at some point in their life will suffer from tinnitus. Tinnitus can occur due to ageing but can also be a consequence of prolonged exposure to excessive noise in the workplace.

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Medical treatment

If you think you are suffering from Noise Induced Hearing Loss it is best to get it checked out with your GP. Your GP may refer you to an ENT Consultant for an Audiogram. An Audiogram is a hearing test that takes place in a sound proof room with a qualified Audiologist and the results of the Audiogram will determine whether you are suffering from Noise Induced Hearing Loss or age related hearing loss.

Hearing loss caused by prolonged exposure to loud noise in the work environment is irreversible. At the same time from suffering from Noise Induced Hearing Loss you may also be suffering from hearing loss caused by natural causes through ageing. It is likely that an ENT Consultant would recommend the use of a hearing aid.

Unfortunately, there is no known cure for tinnitus. Tinnitus sufferers may be recommended detinnitising amplifiers. These produce external sounds of the same frequency to the high pitched tinnitus the object of confusing the ear into processing the more relaxing external sound created by the amplifier than the high pitched ringing which is common with tinnitus. Tinnitus sufferers can also attend sound therapy classes and counselling which are aimed to help you retrain how the ear processes sounds over time.

Support organisations for those suffering from hearing loss and tinnitus are: 

  • The British Tinnitus Association
  • The Royal National Institute for Deaf People
  • Deafness Research UK
  • British Deaf Association
  • National Association of Deafened People

Compensation

Can I claim compensation?

That depends on how the injury occurred and if we are able to blame someone else for your injury. To bring a claim for compensation you have to prove:

  • a) Someone was at fault. For example, an employer who is either an active company or a dissolved company with insurance to cover your period of exposure to excessive noise.
  • b) That person or company breached a duty that was owed to you. For example an employer must assess the risks to employees from noise at work, take action to reduced the noise exposure that produces those risks, provide employees with hearing protection, ensure the legal limited of noise exposure are not exceeded, provide employees with information, instruction and training and carry out noise surveys.
  • c) That you suffered your injury as a consequence as a breach of duty.

If you are able to prove a,b and c above the you are entitled to claim compensation.

What can I claim?

Compensation is awarded for the physical injury you sustained (this is known as General Damages) and also your financial losses (this is known as Special Damages).

Your General Damages will be based on what hearing loss we can prove was caused or contributed to by your exposure to excessive noise. This is based upon expert medical opinion. A medical report will be obtained from an ENT Consultant or Audiologist.

Your Special Damages are all the financial losses you have incurred as a direct result of your injury. These can be:

  • Digital hearing aid
  • Replacement digital hearing aids and batteries
  • Travel expenses in attending medical appointments
  • Treatment, such as detinnitising amplifiers or therapy/counselling classes.

The ENT Consultant or Audiologist will be able to assist in calculating the requirement for replacement hearing aids and batteries.

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How will my case be funded?

There are various options open to you and we will discuss them all with you:

  • BTE Insurance - this is Before the Event Insurance. You will have needed to take out specific insurance to cover legal costs in case you ever had an accident. This may be attached to your personal kit insurance and will likely be called 'Personal (or Family) Legal Protection'. Most policies have a costs indemnity of between £25,000 and £100,000 and are used to cover your own and your opponent's legal costs. Your insurer may insist you instruct a solicitor from their panel in order to benefit from the policy. However, you have the right to instruct the solicitor of your choosing.
  • Conditional Fee Agreement - this is known as a "No Win No Fee" agreement although this is a common misconception as there are fees involved. Under this type of popular agreement we would act for you upon the basis that we only recover our costs should we win your case.
  • Privately paying - you can pay us privately on an hourly rate basis or we agree a budget to investigate the case.

We discuss all of them with you and it is for you to choose the one that is right for you.

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When can I claim and when do I appoint a solicitor?

A compensation claim usually has to be commenced within three years of your becoming aware of hearing loss and your attributing it to your work. This is known as your date of knowledge. Your date of knowledge does not automatically apply from when you are diagnosed with Noise Induced Hearing Loss. If you suffer from significant hearing loss and, in the absence of attending your GP, suspected and/or knew that your hearing loss was caused by your working in a noisy environment your date of knowledge will commence from this date. This may mean that by the time you decide to seek compensation you may already be too late.

Whilst you may have been exposed to noise during the course of your employment before 1963 you can not claim compensation for this exposure. For the majority of employers their date of knowledge, i.e. the date that excessive noise can damage employee's hearing commenced from 1963. This means that if you are exposed to excessive noise for a prolonged period of time after 1963 you may be able to claim for compensation.

Your claim does not have to be concluded within three years of your date of knowledge, we just have to start Court Proceedings by the third anniversary of your date of knowledge.

It is important to be diagnosed with Noise Induced Hearing Loss as soon as possible. This would involve undergoing a hearing test known as an Audiogram which will determine whether you are specifically suffering from Noise Induced Hearing Loss.

It is important to appoint a Solicitor straight away. They can advise you on what evidence needs to be obtained. For example taking witness statements from work colleagues who can support the allegation of a noisy environment and lack of hearing protection. For a Noise Induced Hearing Loss Claim, make sure you appoint a specialist. Someone who knows about Noise Induced Hearing Loss and who can ensure that you not only receive compensation, but that you get the right award as well as the support and assistance from the very beginning.

Before you are able to pursue a claim for Noise Induced Hearing Loss you have to establish that you have a Defendant. The Defendant will either be an active company who may or may not have appropriate insurance or a dissolved company whereby the insurers have been located who were on risk for the period of time that you were exposed. If a company is dissolved the insurers on risk will have to be located prior to pursuing a claim. This does involve a lot of investigation work and enquiries with the Association of British Insurers who hold a database of such information. Further information regarding this can be found at Section 9 of this booklet.

It is important to note that tinnitus alone is not an Industrial Disease. If tinnitus has been sustained as part of hearing loss caused by working in a noisy environment then tinnitus can be considered in conjunction with the hearing loss claim when awards of compensation are calculated.

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Military compensation claims for hearing loss of deafness

People suffering from Noise Induced Hearing Loss and who wish to bring a claim for compensation can normally do so for exposure to noise after 1963. This does not apply to exposure to noise in the Army, Navy and RAF. For military exposure the key date of knowledge is 1987.

If the hearing loss resulted from unsafe training or equipment that was not working properly it may be possible to bring a claim for compensation against the ministry of defence (MOD). This assumes that the MOD was negligent or in breach of its statutory duties in failing to protect its personnel.

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Acoustic shock syndrome

Acoustic shock is a term used in connection with incidents involving exposure to short duration, high frequency, high intensity sounds through a telephone headset. There is no clear single cause of these incidents, but one cause may be interference on the telephone line.
Due to the nature of their jobs we are finding that more and more employees from call centres are suffering from acoustic shock, whereby the noise has been delivered through telephone headsets by way of electrical feedback, latent sonic energy spikes or faulty lines. The cause may be delivered or accidental, but the damage to your hearing can be catastrophic, resulting in long term or even permanent damage.

Early symptoms can incur within minutes of the event and include discomfort or pain around the ear, muffled hearing, feeling light headed, fatigue, lethargy, nausea or dizziness. Medium onset symptoms within hours to days after the event include tinnitus, hypersensitivity to certain frequency ranges of sound and difficulty in processing details of sound due to distortion in frequency or intensity. Late onset symptoms include phobia, anxiety and depression.

Symptoms can vary greatly between individuals and both medium and late onset symptoms may continue for months to years after the event.
To date there is limited technology to adequately deal with the problem created by the development of call centres. Major manufacturers have incorporated an acoustic limiter in the electronics of their headsets to meet the requirements of the Department of Trade and Industry (DTI) specification 85/013. Here in the UK this limiter ensures that any type of noise above 118 decibels is not transmitted through the headset. Acoustic shock prevention and headset noise limiter devices are being brought into the market, but none to date have been given the Health & Safety Executive seal of approval. In general call handlers daily personal noise exposure is unlikely to exceed the 80 decibels lower exposure action value, as defined in the Control of Noise at Work Regulations 2005, provided good practice in the management of noise risk is followed. Call handlers are encouraged to report to management exposure to acoustic shock incidents and management should keep a record of these reported events.

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What is my claim for Noise Induced Hearing Loss worth?

The medical report obtained from an ENT Consultant or Audiologist will determine the extent of your hearing loss and what proportion of the hearing loss is due to Noise Induced Hearing Loss rather than age related hearing loss.

There are guidelines which set out the approximate amount of the compensation award, which are set out below. These guidelines specifically state that the disability, i.e. the hearing loss, is not to be judged simply by the degree of hearing loss as there is often a degree of tinnitus present. The age of the Claimant is particularly relevant because impairment of hearing affects most people in the fullness of time and impacts both upon causation and upon valuation.

  • Severe tinnitus/hearing loss - £19,500 to £30,000
  • Moderate tinnitus/hearing loss - £9,750 to £19,500
  • Mild tinnitus with some hearing loss - £8,250 to £9,570
  • Slight or occasional tinnitus with slight hearing loss - £4,850 to £8,250

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How long will the claim take and will I need to attend court?

The length of the case depends on a number of things. Firstly, whether or not the person and/or company who caused your injury accepts that they were at fault, this is know as liability.

In a claim for Noise Induced Hearing Loss, the person injured is called the Claimant and the person/company being blamed is called the Defendant.

In claims for Noise Induced Hearing Loss the Disease and Illness protocol applies to all claims. This dictates the letter of claim is sent to person/company at fault setting out not only how the injury occurred, but why we consider them to be at fault, what the extent of your injuries are and basic details of what the financial losses are likely to be. The letter does not have to stipulate all losses but is aimed to give the person/company sufficient information to know what is being claimed.

In Noise Induced Hearing Loss claims a lot of the investigation work is carried out prior to sending the letter of claim. Your work history will need to be applied for and obtained from the Inland Revenue. This sets out details of your employers since 1963 to date and confirms the period of time that you were employed by them for. Following receipt of your work history we will then need to determine whether the employers, who exposed you to excessive noise, remain active companies. If they are no longer active companies and have since dissolved we will need to try and locate the insurers on risk for the period of time that you were exposed to excessive noise with the company. If we are unable to locate the insurers on risk at the time of your exposure it is likely that we will not be able to proceed with your claim any further.

Prior to sending the letter of claim your medical notes and records will also be obtained and a medical report will be obtained from an ENT Consultant.

Once the letter of claim has been sent your opponent has 21 days to acknowledge the letter and provide their insurance details and then a further three months to investigate your claim. At the end of that time period, they must either accept or deny liability. If they deny liability they have to state why and disclose any documents they have that support their denial.

It is not always possible to reach a decision within that time frame. However, the aim is to reach an early decision so all parties know where they stand.

Most cases settle without the need to attend Trial, therefore, it is unlikely that you will need to attend Court. If you do, we will be there to guide you through the process.

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Other useful contacts

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BL Claims Solicitors are here to help

If you would like to talk to someone and discuss a potential claim please call us on 0344 620 6600 anytime between 8am and 6pm Monday to Friday, or if you would prefer you can email us at info@blclaims.co.uk