From the AVVO website:
“I have had ear problems my entire life. A fire alarm was tested at work, causing pain and ringing in my ears for days. I went to the ER and my regular MD and have been referred to an ENT. My work is suggesting because I have a known problem that I can’t perform all of the duties required in my job (this is the first time I’m hearing about these duties). Can workers’ comp be denied because of a previous condition? Can they let me go from the job due to this “new inability” to do all of my jobs? I have had no problems on the job prior. Thanks.”
OUR ANSWER:
The answer to your question is a little complicated. So long as you can prove that the fire alarm at work aggravated your pre-existing condition – then your injury is compensable – meaning you are entitled to benefits. A preexisting condition can limit what benefits you receive two ways: First, the law only requires that the carrier pays for treatment that is reasonably expected to get you back to your pre-injury baseline. So if they can prove your baseline wasn’t that good – they could seek to limit the medical care. Second, when it comes time for compensating you for your permanent hearing loss – they do not have to pay you for the difference between your current poorer hearing and perfect hearing – just as your hearing was prior to the injury. The carrier has the burden of proof on this issue so it will depend upon what medical records exist prior to this injury. Your next question about getting let go from the job implicates two federal laws. First, if your employer has more than 15 employees you are covered under the American’s with Disabilities Act. If you are able to do your job – all of it – with or without simple reasonable accommodation – they cannot fire you because of your hearing difficulties. If this is the case you should contact the Colorado Civil Rights Division to file a claim for discrimination.
Second, if your employer has more than 50 employees during the year, AND you have worked there for one year then you are likely covered by the Family Medical Leave Act. This law permits you to take up to 12 weeks off work (unpaid) to recover from a medical problem. If you recover within the 12 weeks to the point that you can do all of the jobs – they must return you back to your position.
Depending upon the wage loss that you have suffered – this may be a case that an attorney will be willing to handle on a contingent fee basis, however, you may be looking at having to hire a hearing expert to prove an aggravation and the extent of the aggravation.
