Can employee get workers’ comp because customers yelled at her?
May 10, 2010 by Fred HosierPosted in: Hearing, Injuries, new court decision, Special Report, Workers' comp
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What types of workplace noise do you think of in connection with occupational hearing loss? Jack hammers, lawn tractors, manufacturing assembly lines? In this case, a worker claims hearing loss from being yelled at on the phone by angry customers.
Linda Zahm worked for National Fuel for 31 years. For 18 of those years, she spent varying parts of her day on the phone with customers who were angry and/or had difficulty hearing.
When she started at the company, a pre-employment hearing exam revealed Zahm had a measurable loss of hearing.
Two years after she retired, Zahm filed a workers’ compensation claim contending she’d suffered occupational hearing loss due to long-term noise exposure “from being on the telephone for years.”
A workers’ compensation law judge and the Workers’ Compensation Board ruled that Zahm had suffered occupational hearing loss. The company appealed.
Zahm’s treating physician testified that her hearing loss was from employment.
However, the appeals court sided with the company.
The court said Zahm’s doctor based her opinion on an erroneous assumption that Zahm spent all 31 of her years on the job on the phone for eight hours a day and was exposed to 80 to 90 decibels of noise.
The court said Zahm’s “description of the actual noise level, which was not measured, was simply too vague and imprecise to establish that it was in fact injurious.”
Outcome: Award of workers’ comp benefits overturned.
What do you think about this case? Let us know in the Comments Box below.
Cite: Zahm v. National Fuel, Appellate Div. of NY Supreme Crt., 4/15/10.
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May 11th, 2010 at 8:26 am
It’s disgraceful that it even went to court.
May 11th, 2010 at 9:01 am
I find it absurd it went as far as it did. Reasons like this are why medical and insurance costs are so high. If she had notified her employer about the problem, if she did not have control over the volume such as holding the phone away from her ear, if they refused to supply hearing protection, if she had lost work time, if the loss of hearing had increased during employment, and if she filed before she retired then there would be a case.
May 11th, 2010 at 9:03 am
I agree with the court. The company is innocent until proven guilty!
May 11th, 2010 at 9:05 am
Another case of “cradle to the grave” caretaking fiasco. There should be punitive damages awarded to the defendant in cases such as this.
May 11th, 2010 at 9:12 am
I’m glad to hear that the company had won in this case. Zahm’s hearing loss could have been caused by anything I guess but from angry customers, it just sounds to far fetched for my ears. Were there any documented complaints over the years from this employee? Employees also should be accountable for there own claimed injuries if there not reported. It seems as though you’re hearing more and more about how negligent the companies are, don’t get me wrong, some of them are but in a lot of cases I hear of the employee take full advantage of the law for there own negligence and end up prevailing. I can’t believe a judge would even consider this case, shame on you and shame on you Zahm’s for even thinking you could get a free ride by listening and talking on the phone. Hearing this is like me saying I could get compensation for losing my mind after I retire because I read to many ridiculous stories like this one, lets see how that one flies in court. Come on people, lets start being more responsible for our own actions and live life honest.
May 11th, 2010 at 9:13 am
It’s crazy, modern telephones have volume controls and you can always pull the phone away from your ear if the other person is talking too loud. Do we really need to train people on how to use a telephone?
Since she already had hearing loss before she started, it’s likely there were other factors involved than a few loud talkers.
May 11th, 2010 at 9:14 am
I am glad to see that the appeals court saw reason and that benefits were overturned. It doesn’t surprise me that the inital ALJ said the company was at fault. So typical. Although as John said, it shouldn’t have even gone to court.
May 11th, 2010 at 9:16 am
With the evidence presented here, she must have found one hungry lawyer to even take this to court. I’ll wager he got his money up front on this one.
May 11th, 2010 at 10:44 am
Not knowing what her numbers are leaves a lot of unanswered questions. Having said that many people don’t realize they qualify for a comp injury until they go to a doctor for help. Major hearing loss can come from small amounts of load noise. I have been in a position to take complaints and many times held the phone about a foot from my head and had no trouble hearing what was said.
May 11th, 2010 at 11:44 am
18 years of listening to people scream 80-90 decibles on the phone for varying parts of her day. LOL chuckle chuckle *sigh*. Linda Zahm has lost more of her mind than her hearing. Hooray for the judgment in this case.
May 11th, 2010 at 11:47 am
For those who are quick to judge Ms. Zahm, she did work for the company for 31years and retired in good standing. She also is facing a problem with her hearing which can be caused by two reasons, genetic or environmental. The doctor indicated that is was environmental and due to her occupation. Of course, a lay person might think that it was due to yelling customers, and state that in court. As a Navy veteran from submarines for many years, I know how occupational environmental noise can affect hearing. It is additive and affects only certain frequency ranges. If
Ms. Zahm’s hearing loss is due to environment (which the doctor states it is) and the majority of Ms. Zahm’s waking life was sent at work for this company. Then I DO suspect that her hearing loss was occupational. It may not have been the customers on the phone, but a worn out compressor around the corder from her office, or a buzzing transformer, or a relief valve that goes off every hour. Barring anything in the home environment (blowing up tree stumps in the backyard and part time work at a firing range or part time sound engineer for a rock band) then I would strongly suspect the employer as the likely cause.
Of course, if we are so prone to protect the company from these “frivilous” lawsuits, then no one will take the time to see if any other employees are at risk. Of course the employer won’t do the sound surveys, because they don’t want to be liable if it is found there is a problem. The court won’t order it done. OSHA and Workers Comp won’t order it done. So I guess, from a safety standpoint, the company dodged a bullet and the workers may be sitting on a timebomb.
May 11th, 2010 at 11:51 am
Like most of these “pot-stiring” cases here, we have very little information. But, like many others, I find it absoslutly absurd that it went to court! And what’s more disturbing, is the genius doctor that testified that the hearing loss was due to being on the phone!
Also, more than likely she was not required to be in a hearing conservation program due to the TWA. So, did she participate in the audiometeric tests conducted annually? They would have picked up on a threshold shift in prior years if the results were kept and documented.
One last thought and I’ll get off my soapbox, did the doctor “positivly know” about her activities she particiapted in away from work?
And like Jen said, “turn down the volume!”
Thumbs up to the appeals court…thumbs down for the WC judge!
May 11th, 2010 at 12:36 pm
“There should be punitive damages awarded to the defendant in cases such as this.” Gary <- This! What a waste of time and resources on SO many levels.
May 11th, 2010 at 1:45 pm
Article States:
“When she started at the company, a pre-employment hearing exam revealed Zahm had a measurable loss of hearing.”
Then: “Two years after she retired, Zahm filed a workers’ compensation claim”
So with that being said, who knows where or when the actual hearing loss started. ??
In addition, by all means use the volume control and a note to all employees, talk to your employer about your safety concerns. Don’t wait 31 years !! More and more companies want to be proactive and at least try to keep thier employees safe. Sometimes this is easier said then done. Safety does not magicaly happen. It’s everyone’s responsibilty not just your employer.
May 11th, 2010 at 1:52 pm
If Doctor’s ran the world they would find fault with mother nature and try to get WC for just standing & breathing.
I agree with the outcome, because of it’s unlikely nature!
One thing I see with this scenrio, is how many workers do not report, hide, hurt themsleves off the job and wait long enough until they find the right moment and Doctor, and lie to them about what they do and how much is done in a repetitive fashion, to manipulate and blame it on the company to get WC. I am not saying this person did this; but, it sure seems someone really talked them into it!
May 11th, 2010 at 3:32 pm
With her having documented hearing loss PRIOR to starting the job, it is highly likely that the pre-existing hearing loss worsened over time *and* would have done so without loud noises at work to exacerbate the situation.
May 11th, 2010 at 3:53 pm
Why was the treating doctor allowed to express a medical opinion without first measuring the actual exposure (duration and level), adjusting for expected loss due to aging and then consider all possible contributory factors? Did this employee chronically take tylenol or NSAIDs? Did she like to soot guns, use power tools or go to rock concerts? Was she a swimmer? We can’t expect judges to render good opinions when doctors think their opinion is valid even though it isn’t backed by medical science. It’s the doctors we need to rein in.
May 11th, 2010 at 4:09 pm
All I have to say is; If the customer complaint noise was really that bad, she stayed around 30 years, 11 months, three weeks, four days and seven hours longer than I would have been there. This whole issue is absurd.
May 11th, 2010 at 4:27 pm
I agree with Mike R there may still be a situation that is a hearing hazard to the other employees. I have worked in factories, Flown on helicopters, Instructed execitive protection professionals in hand gun training, worked in an office and worked on the road. My hearing loss was identified at my first factory job after I left the service. Unfortunately, like so many of us I didnt keep the paper work. However, if i had I could show the continuing loss as a result of enviornmental factors. Did the complainant get the proper instructions at the time of the original testing (like dont turn the volume up on your phone it may cause additional hearing loss). Or, was she left to her own resources to make an unqualified guess at what to do to prevent further hearing loss?
May 11th, 2010 at 4:48 pm
Totally absurd to claim this
May 12th, 2010 at 2:09 am
Sometimes the courts amaze me, other times it’s some post-ers here! There is never enough information given here to speak intelligently, never. Obviously some here missed that hearing protection class. I agree with Mike R on one point, it is the frequency ranges that determine degree of loss, but, I disagree with everything else he said. I am sure that if there was a compressor or other loud peice of equipment it would have been mentioned, but, it was not, so we are back to the telephone. And, again, assuming she works 8 hours daily, is she on the phone 8 hours solid, were there breaks, did she use the ladies room, get up and check the printer, get a cup of coffee. Yes, I am quick to judge when I hear something like this because I have done this for awhile. I would never say all claims are bogus, we all know what’s right and what’s wrong, but, there must have been something a little off here or the company would not have wanted to spend the money to fight it in court, and then appeal.
And, since the company did a pre-employment audiogram it is safe to say they probably did check ups. How often we don’t know.
I had a young man on a construction project want me to pay for his doctor because he had a rash. After reviewing his doctors papers and, yes, viewing his rash, I asked him why his groin was shaved and he stated he was a male stripper and has to shave and put a “special” lotion on afterwards and that is where the rash developed. Yes, we won the case. I believe and have told many people that we have a mindset that the safety professional is there to protect the employee, but, the truth is, the employer pays us to protect him. That is why we are sometimes “quick to Judge”.
Doc
May 12th, 2010 at 7:44 am
In my opinion, Linda should have received the benefits for her hearing loss. This is an easy case and the National Fuel. who appealed should be very ashamed of themselves and obviously do ot care for their employees. Having a telephone beside your ear seems harmless, but in fact can be harmful to your hearing especially for long periods of time. As a receptionist, customer support, etc. you are constantly on the phone, that is the primary objective for these positions.
If companies really want to protect their employees and themselves from situations like these, they should isolate those employees with positions that require extended telephone use from outside noise so that they are able to enable the speaker phone. Using offices instead of cubicals gives these employees the option of using the speaker phone. This will eliminate the amount of decibals the ear will be exposed to.
Overall, Linda is a victim who obviously was dedicated to her job and company. National Fuel should pay her the same respect and take care of her instead of finding loop holes in the legal/safety system to avoid paying for her treatment or time loss.
SHAMEFUL
May 12th, 2010 at 7:48 am
It sounds like the courts may finally be wising up on these stupid cases.
May 12th, 2010 at 12:48 pm
Her baseline testing showed an existing loss of hearing at the time she was initially employed. The article makes no mention of any subsequent testing. In her role I seriously doubt she was exposed to the 80Db 8 hour TWA noise levels that would have triggered the implementation of a hearing conservation program and the annual testing required by it. I have to wonder what measurable hearing loss the case was based on, and why it ever wound up in court at all.
May 12th, 2010 at 4:01 pm
Brian you said “In addition, by all means use the volume control and a note to all employees, talk to your employer about your safety concerns. Don’t wait 31 years !! More and more companies want to be proactive and at least try to keep thier employees safe. Sometimes this is easier said then done. Safety does not magicaly happen. It’s everyone’s responsibilty not just your employer.”
These are great words of wisdom for all of us to take away from this. Everyone is responsible for safety.
A few of you mentioned that she should have received benefits but failed to mention that she tested for hearing loss prior to employment. Terry great comments.
If the doctor measured hearing loss prior to employment, wouldn’t it make sense for the doctor to continue monitoring her hearing annually and the patient be concerned with the outcome of this initial test. Maybe there is a health condition that is causing the premature hearing loss or something we all experience as we age.
I’m glad the case was repealed. it’s such a waste of time and money by everyone involved.
Dan
May 12th, 2010 at 5:29 pm
Wow! The doors just keeping opening for all or any type of reports. I would say I’ve heard it all….but I know working as a Risk Manager it will be plenty more to come.
May 13th, 2010 at 10:28 am
Rediculous waste of time, over the last several weeks, we have heard about comp cases, lawsuits, and payouts for some panty waist asking for $$$ because of perfume in the workplace - that stinks!, some idiot filing based on an off duty weightlifting incident - what a heavy burden to the american tax payer!, the non driving employee shopping for a potluck supper - what is driving all of this? My thought, all of these people feel they are entitled, and the dishonesty of it all is what amazes me. American’s used to have amazing work ethic, now they feel that any little slight or hangnail is reason to file a lawsuit or WC. There is a lot of pride in me as an American, and it stems from the lessons learned growing up in the coal fields of West Virginia. You learn to work hard - so hard that your sore the next morning, you pick up you dinner bucket and head back in the next morning. You don’t sue because the lighting is dim, your co-worker stinks, or your boss sends you on an errand. I am growing very discouraged as it seems every week I hear about someone who is offended / injured . or otherwise hurt in some bizarre manner and expects a payout to heal his/wounded psyche. To all those who do this type of shinnangans - suck it up and grow a pair. If you are truly injured on a job, fine, that is what WC is intended to take care of, not drivel like this.
November 24th, 2010 at 9:13 am
I agree with Linda. People should not be subject to verbal abuse of customers. All they do is yell and scream to get their way. If they would only talk to the employee in a calm manner things would be better. Verbal abuse should not be tolerated in the workplace at all!
November 24th, 2010 at 10:33 am
While I sympathize with the person that is losing their hearing, I truly believe that employers normally get the short end of the stick when it comes to workers comp. This case should not have seen the light of day. I cannot relate to the mindset of a person and their lawyer even conjuring up such an absurd case to bring to court. Nor can I understand how there is not an option for the court and judges to quickly dismiss such an obvious case of “money for nothing”. Environmental Noise, bull hockey - if it was there, the lawyer would have thrown that into the case as well…
November 24th, 2010 at 11:09 am
My question is; how can one stay on a job like that for 31 years? She should have been denied on that alone.