CLAIM NO. E303993
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 29, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by PHIL KAPLAN and SILAS H. BREWER, Attorneys at Law, Little Rock, Arkansas.
Respondent represented by MICHAEL J. DENNIS, Attorney at Law, Pine Bluff, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER[2] The respondent appeals an order of the Administrative Law Judge filed May 9, 1997 finding that James Bennett sustained a compensable gradual onset hearing loss arising out of and in the course of his employment with respondent and that respondent is responsible for claimant’s 47.2% permanent binaural impairment and reasonable hospital and medical expenses to include binaural amplification devices. Based upon our de novo review of the entire record, we find that claimant has failed to meet his burden of proof. Therefore, we find that the decision of the Administrative Law Judge must be reversed. [3] The evidence reflects that claimant began his employment with Dierks Paper Company in June of 1966 or 1967. Prior to commencing his employment with Dierks, claimant served in the Army for three years. In the Army, claimant was trained as a helicopter mechanic. After being discharged from the Army and prior to beginning work for Dierks, claimant worked for Prescolite Manufacturing Company in El Dorado and for the Central Transport in Pine Bluff. When first employed by Dierks, claimant was in the general labor pool for approximately six months. From there, claimant moved to the paper machine where he worked as the bottom man for approximately one year. On the paper machine, claimant plugged rolls on the winder (Dr. Sataloff described the winder as the loudest machine in a paper mill.) Claimant moved from the winder to the shipping department where he worked for approximately two years and then moved to the wood yard before transferring to the maintenance department. Claimant worked in the maintenance department at the time the facility was purchased by Weyerhaeuser and has continued in that position through the ownership of the facility by Weyerhaeuser and respondent. Claimant offered testimony that as a child he suffered hearing loss in his left ear when a cherry bomb was exploded in a can. According to claimant since this incident occurred, he has been very aware of protecting his hearing. Respondent introduced into evidence records dated September 22, 1965, prepared upon claimant’s separation from the Army. One such record introduced as Respondent’s Exhibit No. 1 Page 17 states:
[4] Claimant introduced into evidence as Claimant’s Exhibit No. 1 Page GL00050 documents entitled Listing of Audiometric Test Data. This document reflects audiogram results from the years 1982, 83, 84, and 85, prior to respondent purchasing the paper mill facility. These audiograms reflect measurable hearing loss. Respondent introduced audiogram results prepared in the years 1977, 79, 80, and 81. Each of these audiograms record claimant’s history of a firecracker exploding by claimant’s left side as a child. They each reflect both high and low frequency changes, with a notation on the 1977 report of hearing below normal. Most interestingly, claimant introduced correspondence from Dr. Winston dated October 18, 1994, which states:“21 year old white male with known hearing deficiency since age 7. Lately has noted occasional tinnitus. No history of repeated otitis media. Exam — normal TM’s bilaterally. Audiogram, two times, are inconsistent but point to high pitch neurosensory hearing loss bilaterally with mild loss in left ear.
[5] When asked in his deposition what other etiological factors may be present in Mr. Bennett’s situation, Dr. Winston testified:In summary, Mr. Bennett has bilateral, sensor neural hearing loss but is greater in the high frequencies than the low frequencies and worse on the left side than the right side. He has a considerably lengthy history of noise exposure as a hunter, helicopter maintenance personnel in the military, and working in the maintenance department at the paper mill for the last 25 years. It is very probable that some degree of his hearing loss in both ears is due to this complex noise history; however, there may be other etiological factors present.
[6] Although Dr. Winston testified that a majority of claimant’s hearing loss is “probably noise-induced.” We cannot find that claimant has proven by a preponderance of the evidence that the hearing loss is related to claimant’s employment with respondent. [7] The burden of proof rests upon the claimant to prove the compensability of his claim. Ringier America v. Comles, 41 Ark. App. 47, 849 S.W.2d 1 (1993). There is no presumption that a claim is indeed compensable. O.K. Processing, Inc. v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979). The party having the burden of proof on the issue must establish it by a preponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (1987) (Repl. 1996). In determining whether a claimant has sustained his or her burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704; Wade v. Mr. C Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989); and Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987). [8] The evidence reveals that at the time claimant began his employment at the Dierks facility, a hearing conservation program was not in place. After Weyerhaeuser acquired the facility, Weyerhaeuser implemented a hearing conservation program and issued hearing protection devices as well as implemented annual hearing tests. When respondent acquired the Pine Bluff facility, respondent continued on with the hearing conservation program implemented by Weyerhaeuser. In addition, respondent appeared to take a stricter stance regarding the enforcement of the program. At the hearing held on April 29 and 30, 1996, respondent contended that the scientific evidence supports a finding that any gradual onset hearing loss sustained by claimant as a result of his employment achieved a maximum amount of loss prior to claimant’s employment with respondent. In support of this contention, respondent offered the deposition of Dr. Joseph Sataloff. Dr. Sataloff is a preeminent authority on occupational hearing loss in this country. Dr. Sataloff is board certified in ear, nose and throat medicine and is a Senior Professor of Otology at Thomas Jefferson University. Dr. Sataloff has published numerous books on hearing loss and over 125 papers which specifically address occupational hearing loss. Dr. Sataloff’s textbook on hearing loss is used in every medical school in the country and contains over 900 pages alone on the issue of occupational induced hearing loss. Dr. Sataloff was a scientific member of the committee that wrote the OSHA noise regulations in the early 1970’s for the Secretary of Labor and was Chairman of the Committee of the AMA for hearing impairment which devised the method by which hearing impairment is calculated. During his deposition, Dr. Sataloff was asked to explain the basis for the American Academy of Occupational Medicine position that maximum level hearing loss for gradually induced hearing loss reaches a maximum level of loss in about 10 to 15 years. Specifically, Dr. Sataloff stated:A. First of all, this is a complex case, which you can tell by my report, in that I do think that noise is probably a predominant factor, but he’s had many sources of noise exposure. He indicated 25 years at the paper mill as a maintenance man working in a variety of areas. In addition to that, he had other exposures, avocational and other occupational exposures, if the military is considered occupational.
And, in honesty, that is a professional out because this is a gentleman that I would want to see an otologist or ear specialist to look at to make sure there were not some other underlying factors. So it’s just a matter of this being a case where definitive answers aren’t up front for some of his configuration changes.
[9] In this regard, Dr. Sataloff was specifically asked:A. Well, many of us in the field have looked at hundreds of thousands, probably millions of audiograms and have found that after a person works 10 or 15 years, it’s generally 12 years, in a noisy environment, the amount of hearing loss he sustains from a loud job reaches a maximum and does not continue to get worse from noise exposure. It gets worse as he gets older and other causes. But it stays the same after that. So that the maximum amount of hearing loss that’s caused can pretty well be determined after a person is 10, 12 years on his job. Of course, if he gets another job that’s louder, that’s different. But if he works in a very noisy job, like a textile mill operator, and has a hearing loss, then that noise he no longer hears because he’s hard of hearing and it doesn’t do him any further damage. That’s why you should hire these people, they’re both trained and they have a hearing loss. You just protect them from getting worse and they do pretty well.
Q. In the particular cases that we’re talking about today, Gaylord Container Corporation purchased a facility in Pine Bluff, Arkansas, and began its operation in January of 1986. And we’re talking about employees who worked for the previous owners of the facility for sometimes as much as 20 years prior to that date. Does that affect the amount of occupationally noise-induced hearing loss you would expect to find, considering only the exposure at Gaylord?
A. Was the exposure at Gaylord just about the same as it was in previous jobs, the same job requirement?
Q. Essentially the same job requirements.
A. The amounts of hearing loss they had when they left their previous job would be the maximum amount that’s produced certainly in 20 years. And they’re hard of hearing. If they are hard of hearing, they would not be aggravated by their present job.
Q. What if a person had worked that 20 years and had not already become hard of hearing?
A. Well, if he works on this job and it makes him hard of hearing, you’ve got to find out what else caused that hearing loss because the chances are there must be other causes. He’s already 20 years older, for example. And there are many other things that set in at that stage. Here you have to make a specific diagnosis in each case.
Q. And would that tend, if there is a continuation, would that tend to rule out occupational noise exposure as the cause?
A. It would help, yes, sir.
[10] Dr. Sataloff was provided with information regarding the hearing conservation program implemented by respondent after its purchase of the Pine Bluff facility. When asked if the program was an appropriate program, Dr. Sataloff stated:A. I would say it’s a very appropriate and very good program. And I would commend them for having such a program.
Q. There will probably be some testimony in this case that previous owners were somewhat lax in their enforcement of their use of safety equipment, including ear plugs. Have you seen instances where, when a program changes, that it meets with some employee resistance?
A. Almost always.
[11] Dr. Sataloff was asked to assume that during claimant’s first 15 or 20 years of employment at the paper mill facility enforcement of a hearing conservation program was rather lax, but during the past 8 or 9 years, the enforcement of hearing conservation was more widespread and accepted. Then he was asked if such assumption would “further decrease the chance of this latter exposure causing injury to these workers.” To which Dr. Sataloff responded “Absolutely. If it was implemented the way they say here, I would say the employees did not sustain any additional aggravation.” [12] During cross-examination, Dr. Sataloff was asked further about the 10 to 12 year exposure resulting in maximum amount occupational induced hearing loss. Specifically, the following dialogue transpired:Q. Do you think the memorandum concerning enforcement being stricter and things of that nature is an appropriate method to overcome that resistance?
A. Yes, sir. Very much so. They did a very good job protecting their employees starting in 1986, just what OSHA recommended.
Q. Now, isn’t it true that after the 10 to 15-year period when noise-induced hearing loss affects the 3,000, 4,000 range, that you can expect, if one continues to stay in high noise levels, let’s say TWAs again of 95 to 105, that that prolonged exposure will now affect hearing below the 3,000 hertz range?
A. I think if it were going to affect it, it would affect it within the first 10 or 12 years. That loss occurs, now they’ve been in there for 20 years, there are other causes of hearing loss.
Q. Well, isn’t it true that the lower ranges take a lot longer to affect than the higher range?
A. That’s never been established. But it may be true. There’s a considerable difference. Dr. Glorig, for example, believes that a five or 10 dB loss in the low frequencies can occur after 15 years. But it’s pretty hard to say. We don’t have enough scientific evidence.
Q. You wouldn’t rule it out, would you?
A. Five dB? I would not.
Q. No, no, I mean that after 15 years of exposure to high levels of noise of the level that I just spoke of would then begin to affect the 1,000 and 2,000 hertz range?
A. More than five or 10 dB? No, sir, not at all.
Q. But within that, at least you’re going to — you don’t have any dispute then with the five to 10 dB range?
A. If the person is working in very loud noise.
Q. What do you consider to be very loud noise?
[13] Dr. Sataloff was also asked if after years of exposure to hazardous level of noise whether the lower frequency range may continue to worsen even after the higher frequency range has leveled off to which he responded “Yes sir. While they’re still exposed before 15 or so years, yes, sir.” It was pointed out to Dr. Sataloff that in a previous deposition he did not qualify a response to such a question to be within the first 15 or so years to which he responded “Well, that’s noise exposure. That was the qualification of the noise exposure.” [14] In response to this argument, claimant introduced the deposition of Michael E. Winston, a Ph.D. in audiology. Although Dr. Winston’s CV was marked as an exhibit to his deposition, the deposition introduced into evidence in this case fails to include a copy of that exhibit. Dr. Winston does not treat persons for noise induced hearing loss rather, he evaluates the loss of hearing sustained by individuals. He does not make a medical differential diagnosis. Dr. Winston testified in his deposition that he does not believe that the level of hearing loss will reach a maximum hearing loss after a certain number of years of exposure. Specifically, Dr. Winston testified:A. Oh, 98 to 100 dBA or more. However, by this time, he’s wearing ear protectors in that noise. Everybody is. So nowadays, when we see this in the past 10 years, it’s not noise.
[15] With regard to this opinion, Dr. Winston has not offered any evidence to explain why he disagrees with this finding. While critical of the American Occupational Medical Association Noise and Hearing Conservation Committee, Dr. Winston admitted that he has undertaken no statistical analysis of the criteria with regard to the 10 to 15 year rule for maximum hearing loss for occupational induced hearing loss and even admitted that such theory “may be statistically accurate.” [16] After considering the qualifications of Dr. Sataloff and Dr. Winston, we find that greater weight should be placed upon Dr. Sataloff’s testimony with regard to whether a person reaches a point of maximum loss after 15 years of exposure. Dr. Sataloff is a preeminent medical doctor specializing in the field of hearing loss. His book entitled Occupational Hearing Loss is utilized in medical schools throughout the country. Dr. Sataloff explained in detail that the scientific basis for his opinion regarding maximal loss after 15 years is accepted by the scientific community. According to Dr. Sataloff, there is not enough scientific evidence to support the theory of additional hearing loss after 15 years. This theory is proposed and accepted by the American Academy of Occupational Medicine. Dr. Sataloff testified that this committee developed a number of criteria to help doctors differentiate the cause of hearing loss. Dr. Sataloff testified that the criteria developed by this committee has been:I have heard theories in the past years proposed by individuals that there is a maximal point at which hearing does not continue to deteriorate. I do not believe that to be a correct statement.
While it may be statistically appropriate, individually there are those individuals who’ve lost major amount of hearing loss in the progressive fashion over a long period of time due to what we believe was excessive noise exposure.
So I do not believe that there is a ceiling affect at which point beyond, regardless of length of exposure, you do not acquire further hearing loss.
[17] The evidence reveals that claimant had worked for respondent’s predecessors for over 18 years by the time claimant became employed by respondent. The evidence further reveals that claimant’s audiograms performed prior to claimant’s employment with respondent documented measurable hearing loss. Moreover, Dr. Winston acknowledged that there are “other etiological factors present.” Accordingly, in light of Dr. Sataloff’s testimony regarding maximum hearing loss for noise induced hearing loss after 15 years of exposure, we find that claimant has failed to prove by a preponderance of the evidence that he sustained any occupationally related hearing loss during the course and scope of his employment with respondent. [18] In this regard, we note that the Administrative Law Judge suggested in his opinion that the respondent expanded its operation and increased the noise levels after purchasing the plant in late 1985. However, we find that the evidence does not support this suggestion. After reviewing the testimony of the claimant, Dr. Sataloff, Dr. Winston and Dr. Rimmer, we cannot find that claimant was, in fact, exposed to any greater degree of noise after respondent purchased the facility. Therefore, we cannot find that claimant’s employment with respondent in any way aggravated any pre-existing hearing loss. We further find that claimant has failed to prove that respondent is responsible for his binaural hearing impairment since as established above, claimant’s occupational noise induced hearing loss was found to have reached a point of maximum loss prior to claimant commencing his employment with respondent. Therefore, we find that the decision of the Administrative Law Judge must be and hereby is reversed. [19] IT IS SO ORDERED.Reviewed by over a dozen scientists and many more in lots of different disciplines. . . . it takes a long ordeal to get agreement in things like this in medicine. And this was published after many consultations and deliberations by experts.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[20] Commissioner Humphrey dissents. [21] DISSENTING OPINION[22] I respectfully dissent from the majority opinion finding that claimant has failed to demonstrate by a preponderance of the evidence that he sustained a compensable gradual onset hearing loss as a result of his employment with respondent. [23] To support the denial of benefits, the majority relies on the testimony of Dr. Joseph Sataloff, a proponent of the so-called 15-year rule. According to the American Occupational Medical Association’s Noise and Hearing Conservation Committee’s Guidelines for the Conduct of an Occupational Noise-Induced Hearing Loss, the rule is as follows: “Given stable exposure conditions, 3,000, 4,000 and 6,000 Hz will reach an asymptote (maximum level) in about ten (10) to fifteen (15) years.” [24] As the majority points out, Claimant’s expert, Dr. Michael Winston, an audiologist, does not support this theory. In his deposition he discussed this issue and his comments are as follows:
[25] In my opinion, the 15-year rule is problematic because it fails to allow for individual differences. It is a generalization which should not be embraced as a bright-line rule with respect to hearing loss. [26] The majority opinion makes the following observation: “Although Dr. Winston’s CV was marked as an exhibit to his deposition, the deposition introduced into evidence in this case fails to include a copy of that exhibit.” This oversight is used to bolster the majority’s finding that Dr. Sataloff’s opinion is entitled to greater weight with respect to the 15-year rule. This Commission has previously relied on Dr. Winston’s expert testimony. See, Carol L. Loy v. Alcoa, Full Commission Opinion filed February 6, 1998 (E303147). Moreover, respondents did not challenge Dr. Winston’s qualifications. In fact, counsel for respondents stipulated to Dr. Winston’s qualifications in the field of audiology. [27] Therefore, I respectfully dissent from the majority opinion. [28] PAT WEST HUMPHREY, CommissionerI have heard theories in past years proposed by individuals that there is a maximal point at which hearing does not continue to deteriorate. I do not believe that to be a correct statement. While it may be statistically appropriate, individually there are those individuals who’ve lost major amount of hearing loss in a progressive fashion over a long period of time due to what we believe to be excessive noise exposure. So I do not believe that that there is a ceiling effect at which beyond that, regardless of length of exposure, you do not acquire further hearing loss.