CLAIM NO. E206791


Before the Arkansas Workers’ Compensation Commission

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by THOMAS H. McGOWAN, Attorney at Law, Little Rock, Arkansas.

Respondent represented by MICHAEL J. DENNIS, Attorney at Law, Pine Bluff, Arkansas.

Decision of Administrative Law Judge: Affirmed, as modified.

[2] Claimant appeals an opinion of the Administrative Law Judge filed on August 25, 1993 finding that claimant was entitled to permanent anatomical impairment benefits for loss of hearing in an amount equal to 11.52%.

[3] Claimant has the burden of proving by a preponderance of the evidence that he is entitled to compensation. Stone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (1988); Ark. Code Ann. § 11-9-705 (a)(3) (Supp. 1993). Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers’ Compensation Commission. Central Maloney, Inc. v.York, 10 Ark. App. 254, 663 S.W.2d 196 (1984). After our denovo review of the entire record, we find that claimant has met his burden of proof and accordingly, affirm the opinion of the Administrative Law Judge, as modified herein.

[4] Respondent instituted a safety program regarding hearing protection. Respondent had audiograms performed on its employees at various times and subsequently voluntarily paid permanent anatomical impairment benefits to certain employees. However, after utilizing the results of a 1980 audiogram, respondent determined that claimant was not entitled to any benefits for permanent disability. Claimant contended that the results of a 1991 audiogram should be used and would result in a permanent anatomical impairment of 23.43%.

[5] By deposition, Dr. Joseph Sataloff testified about noise-related hearing loss. After consideration of Dr. Sataloff’s credentials, we find that his opinion is entitled to great weight. Dr. Sataloff opined that noise-related hearing loss is complete after 10 to 12 years. Claimant’s employment began with respondent in 1970 and the first audiogram was performed in 1971. There is no evidence in the record concerning claimant’s ability to hear prior to his employment with respondent. Thus, we find that any noise-related hearing loss documented in 1971 must be considered as preexisting claimant’s employment with respondent and is not the liability of respondent. Following the 1971 audiogram done 18 months after claimant went to work in March 1970, the next hearing tests were performed in 1980 and 1983. Since Dr. Sataloff has opined that noise-related hearing losses become maximized in 10 to 12 years, the 1980 audiogram, done in December 1980, could be compared to the 1971 test to ascertain the hearing loss between 1970 and 1980. However, using an abundance of caution, we have chosen to employ the 1983 audiogram, taken almost 13 years after claimant was hired by respondent, for comparison purposes. Using the 1983, rather than the 1980 test results produces a result that favors claimant in an amount less than one percent — a 12.5% impairment (1983) versus an 11.57% impairment (1980). Thus, claimant’s entitlement to permanent disability benefits should be determined by subtracting the results of the 1971 audiogram from the results of the 1983 audiogram.

[6] Therefore, utilizing the American Medical Associations’ Guides to the Evaluation of PermanentImpairment and the results of the 1971 and 1983 audiograms, we find that claimant’s noise-related hearing loss is 13.75%. Dr. Sataloff, in his October 5, 1992 deposition, opined that some of this loss was attributed to gunfire while hunting. Because he did not specify the percentage to be deducted for gunfire, we decline to do so as well. After deducting the preexisting hearing loss of 1.25% from the 13.75% level in 1983, we conclude that claimant’s permanent anatomical impairment is 12.5%. The Administrative Law Judge’s opinion is modified accordingly.

[7] By stipulating that no permanent impairment benefits had been paid and contending that none were owed, respondent clearly controverted claimant’s entitlement to any benefits for permanent anatomical impairment. Therefore, we find that respondent is liable for the maximum statutory attorney’s fee based on permanent impairment benefits awarded herein.

[8] Accordingly, we modify the opinion of the Administrative Law Judge to find that claimant is entitled to permanent anatomical impairment benefits for loss of hearing in an amount equal to 12.5 percent. Additionally, we affirm the opinion of the Administrative Law Judge finding that respondent has controverted claimant’s entitlement to permanent disability benefits. Respondent is directed to comply with the award set forth herein. All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, we find that claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00.


FRANK B. NEWELL, Special Chairman

[10] Commissioner Humphrey concurs.

[11] Commissioner Tatum dissents.