Brian K. Prince, Associate Attorney
10/14/2022
Who says that, other than a disallowance, a §32 is the only way to truly close a case?
It’s not often that the overlap of two obscure sections of the Workers’ Compensation Law results in a full and final closure on a claim, but that’s exactly what happened at a hearing last month. As you all know, there are a number of things that sets a hearing loss claim apart from other sorts of occupational diseases, the first being a date of disablement set by statute, 90 days following the claimant’s removal from exposure to injurious noise. (This usually occurs at the time of retirement, which in this case was in early 2014.) The other odd wrinkle about hearing loss claims are the significant hoops you’ll have to jump through if you want to try and apportion liability away. Barring a few very narrow exceptions, an employer will need to perform a pre-employment hearing test and alert a potential apportionment target of the results in writing within 90 days of that test. Otherwise, the last employer where the claimant was exposed to injurious noise gets stuck with the whole bill.
At a trial hearing last month, our hearing loss claim, with only an OC-400, C-3, and EC-1 in eCase, was placed on notice for consideration with a shiny new hearing loss claim from a subsequent employer that was on for claimant and employer testimony. There was one exception, however: they weren’t able to produce any kind of letter regarding potential apportionment, so we were discharged and removed from notice before a word of testimony was uttered. While the other carrier noted an exception, as they didn’t have access to our file, an appeal is unlikely.
Should that appeal not come, the second obscure law provision will kick in, §123. Now, everybody knows that after 18 years from the date of injury, and 8 years from the last payment of compensation, a claimant with a truly closed case can never receive further indemnity benefits. What is less known is that, after 7 years from the date of injury, assuming there’s been a hearing on a case but no adjudication on the merits, the Board is barred from reopening that claim. Period; no “ifs”, “ands”, or “buts.” As our claim would have a mid-2014 date of disablement set by statute, and the case was closed in 2022 without adjudication on its merits, that’s it; game over. The fun thing is, even should the subsequent carrier magically come forward with a timely apportionment letter (which was never sent to our client but let’s play pretend) our file would not bear even a penny of liability, as the claim cannot be reopened. And who says that, other than a disallowance, a §32 is the only way to truly close a case?