CLAIM NO. E303991
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 11, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by PHILIP E. KAPLAN and SILAS H. BREWER, Attorneys at Law, Little Rock, Arkansas.
Respondents represented by MICHAEL J. DENNIS, Attorney at Law, Pine Bluff, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
[1] OPINION AND ORDER[2] Respondent appeals from a decision of an administrative law judge filed on May 9, 1997, finding that claimant demonstrated by a preponderance of the evidence that he sustained hearing loss which is causally related to his employment with respondent employer, and that he proved entitlement to permanent partial disability benefits based on an anatomical impairment rating of 5.6%. Further, the administrative law judge found that claimant is entitled to medical benefits in the form of amplification devises. [3] After conducting a de novo review of the record, we find that claimant has proven by a preponderance of the evidence that the hearing loss he sustained is causally related to his employment with respondent. Therefore, the administrative law judge’s decision in this regard must be affirmed. However, we also find that claimant failed to demonstrate that amplification devises are reasonably necessary for the treatment of his compensable injury. Therefore, we must reverse the administrative law judge in this regard. [4] Claimant began working for the facility currently known as Gaylord Container Corporation in 1980. The company was owned by Weyerhaeuser when claimant was hired. In 1982, claimant was laid off from his job. Claimant testified that between his lay off from Weyerhaeuser and his employment with respondent employer, he was not exposed to high levels of noise. Respondent employer purchased the paper mill from Weyerhaeuser in December of 1985. In 1989, claimant was hired by respondent employer and his employment continued until 1995. Claimant resigned due to medical problems unrelated to this claim. He was 58 years old at the time of his resignation. [5] Prior to 1980, claimant’s employment history included jobs as a house painter, for the Seven-Eleven Corporation and as a pipe fitter for Brown and Root Construction Company. Also, he served in the Army. Claimant testified that he worked as a radio mechanic for an artillery unit. However, claimant explained that he was not exposed to artillery fire during exercises. He stated that following his lay off from Weyerhaeuser, he performed maintenance work for Brown and Root. Claimant testified that he had previously been a hunter. It is claimant’s testimony that he did not begin to notice a problem with his hearing until 1992 or 1993. In 1993, he had an audiogram at the union’s behest. Further, there was an incident at the plant in 1992 or 1993 wherein another employee attempted to warn claimant he was in danger; however, claimant was unable to hear the admonition. He stated that his co-worker had to grab him by the shoulder in order to get his attention. [6] A point of contention in this case is which audiogram is appropriate to use in determining claimant’s hearing loss. Dr. Michael Winston, an audiologist, performed an audiogram on September 15, 1994. He testified that claimant’s audiogram revealed a configuration which was consistent with noise-induced hearing loss. Using the American Academy of Otolaryngology percentages, which is presumably synonymous with the AMA Guides, he determined that claimant’s binaural hearing impairment was 5.6 % using the claimant’s 1994 audiogram. [7] Dr. Joseph Sataloff does not agree. Using the AMAGuides, he determined that claimant had an impairment rating of 0% using one of the claimant’s 1992 audiogram rather than the claimant’s 1994 audiogram. Without explanation, Dr. Sataloff stated in a letter dated September 20, 1995, that “[t]he audiogram of 1994 is not quite as reliable as previous audiograms, and none of the changes compared to 1992 can be considered as due to occupational noise exposure.” It appears from his letter of September 20th that Dr. Sataloff was under the impression that when an audiogram was performed in January of 1992, claimant had worked in the facility for some 11 years. In this regard, Dr. Sataloff’s letter states: “In 1992, eleven years after starting employment, he still had normal hearing in both ears in all of the important speech frequencies.” However, this statement indicates an important misconception of the claimant’s work history on Dr. Sataloff’s part. In this regard, claimant’s employment at the paper mill was interrupted by a layoff in 1982, his employment did not resume until 1989, and he was not exposed to high levels of noise during his 7 year absence. Therefore, after considering the fact that Dr. Sataloff gave absolutely no explanation in his 1995 letter or in his deposition as to why he considered the claimant’s 1994 audiogram less reliable than the claimant’s 1992 audiograms, and after also considering the fact that Dr. Sataloff had a misconception as to the claimant’s actual employment history at the plant, we find that Dr. Sataloff’s two statements that (1) the claimant’s 1994 audiogram is not as reliable as previous audiograms, and (2) that none of the claimant’s hearing changes after 1992 can be due to occupational noise exposure are each entitled to essentially no weight. [8] Based upon the evidence of claimant’s exposure to noise while working at respondent, his lack of nonwork-related exposure to high levels of noise and Dr. Winston’s opinion that claimant sustained occupationally induced hearing loss, we find that claimant has proven by a preponderance of the evidence that he sustained hearing loss which is causally related to his employment with respondent. [9] In our view, it is appropriate to use the audiogram performed by Dr. Winston in 1994 in order to determine claimant’s impairment rating. Dr. Winston testified that the absence of historical audiograms will not compromise a later diagnosis of noise-induced hearing loss. He stated that most of his work is done without the benefit of serial audiograms. Further, claimant testified that he did not begin to notice a problem with his hearing until 1992 or 1993, and the claimant continued to work for the respondent until 1995. Therefore, we find that claimant is entitled to permanent partial disability benefits based on the 5.6% impairment rating assigned by Dr. Winston under the AMA Guides formula. Moreover, we find no justification under the AMA Guides for an adjustment to claimant’s impairment rating due to alleged “presbycusis” (an age-related process), as the dissent suggests doing. In this regard, Dr. Winston did not propose any adjustment to claimant’s impairment rating due to his age or other alleged non-occupational source in either his 1995 letter or in his deposition testimony. Further, Dr. Winston offered testimony regarding whether compensation for occupational hearing loss should be adjusted to account for presbycusis. He stated that:
[10] Further, Dr. Winston offered an opinion with respect to the age at which individuals begin to show presbycusis effects. He testified that as a general rule, this occurs over the age of 60. He added that he would not expect presbycusis to “play a demonstrable part” in the hearing loss of an individual under the age of 60. Claimant was 57 years old when Dr. Winston performed the audiogram in 1994. [11] We are aware that Dr. Sataloff does not concur with the opinion offered by Dr. Winston with respect to the 25-decibel fence. Moreover, we are cognizant of Dr. Sataloff’s book which indicates that, statistically, between the ages of 45 and 65, an individual loses 1/2 decibel per year. However, we also point out that neither Dr. Sataloff, the AMA Guides which Dr. Sataloff chaired, or the American Occupational Medical Association’s Noise and Hearing Conservation Committee’s Guidelines submitted into evidence, have indicated that an impairment calculation under the AMA Guides formula should be modified with the dB per year reduction after age 45 suggested by the dissent in this case. The dissent has incorrectly referred to the dissent’s proposed dB per year reduction after age 45 as “Dr. Sataloff’s recommendation.” In fact, that statement is nothing more than a general statistic from Dr. Sataloff’s book. Dr. Sataloff’s true “recommendation” is the AMA Guides formula which he helped create and which uses a 25 dB fence, not a dB per year reduction after age 45. The dB per year reduction proposed by the dissent is the dissent’s formula not Dr. Sataloff’s formula. [12] With respect to claimant’s claim for hearing amplification devises, Dr. Winston opined that claimant is apotential candidate, adding that “I would rate him as a borderline candidate for the use of amplification.” Based on Dr. Winston’s opinion, we find that claimant has failed to demonstrate that hearing amplification devises are reasonably necessary for the treatment of his compensable injury. [13] Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that claimant has proven by a preponderance of the evidence that he sustained hearing loss which is causally connected to his employment with respondent, and his binaural hearing impairment is 5.6%. Accordingly, the decision of the administrative law judge must be affirmed in these regards. We also find that claimant failed to demonstrate that amplification devises are reasonably necessary for the treatment of his compensable injury. Therefore, we find that the administrative law judge’s decision in this regard must be reversed. [14] 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 administrative law judge’s decision pursuant to Ark. Code Ann. § 11-9-809 (Repl. 1996). For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 pursuant to Ark. Code Ann. § 11-9-715 (Repl. 1996). [15] IT IS SO ORDERED.Regarding the formula that is currently the one that seems to be the most often utilized, which is the American Academy of Otolaryngology’s criteria which is the four-frequency average, as well as the original AMA three-frequency average. Given the fact that both of those utilize a 25-decibel hearing loss average fence, I think that more than compensates for any change of hearing that should be attributed to presbycusis.
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner
[16] Commissioner Wilson dissents. [17] DISSENTING OPINION[18] I respectfully dissent from the majority opinion. The record consists of several audiogram results, the first two of which were prepared while claimant was an employee of Weyerhaeuser. Respondent submitted claimant’s audiogram results to Dr. Joseph Sataloff, a preeminent scholar in the hearing loss field. Dr. Sataloff authored a report on claimant’s audiogram dated September 20, 1995, setting forth his opinion. Specifically, this report states:
[19] A review of the record does reveal that Dr. Sataloff was misinformed regarding claimant’s employment history. Apparently, Dr. Sataloff was not informed of claimant’s lay-off in 1982 and re-hire in 1989. However as noted by Dr. Sataloff, in 1992, after claimant had been employed by respondent for three years, claimant still had “normal hearing in both ears and all the important speech frequencies.” Dr. Sataloff was of the opinion that the 1994 audiogram was not as reliable as previous audiograms and explained that any changes between 1992 and 1994 were not due to occupational noise exposure. Although Dr. Sataloff did not elaborate on this opinion, a review of Dr. Sataloff’s deposition reveals that noise induced hearing loss affects the higher frequencies in the 3000 and 4000 Hz levels. When comparing the December 1992 audiogram with claimant’s September 1994 audiogram there was no change in these levels for claimant’s left ear and only a 5 decibel change in claimant’s right ear. Specifically, at the 3000 Hz level claimant’s hearing actually improved 5 decibels from 1992 through 1994 while it decreased 5 decibels at the 4000 level during this same time frame. Accordingly, in my opinion, whether the 1992, or 1994 audiograms are used to determine claimant’s hearing impairment, if any, the final results will be the same. It just so happens that Dr. Sataloff found the 1992 results to be more reliable. [20] Dr. Sataloff is of the opinion that claimant has not sustained a hearing loss as a result of gradual induced noise exposure sufficient enough to warrant a physical impairment rating. The majority has relied upon Dr. Winston’s testimony that the impairment rating formulas implemented by the AMA GuidesI was pleased to review the records on Edward Beck who is 58 years old and started his employment at Gaylord Paper in 1981. He has a history of hunting, but he has been using ear protectors throughout his employment. On his first audiogram, ten months after starting his employment, he showed a high frequency sensorineural dip in both ears. This was probably present for many years from his previous employment and gun shooting. In 1992, eleven years after starting employment, he still had normal hearing in both ears in all the important speech frequencies. He does have a bilateral high frequency sensorineural loss that is consistent with a diagnosis of noise induced hearing loss; however, he has not reached a compensable level according to the AMA formula and has zero degree of impairment.
The audiogram of 1994 is not quite as reliable as previous audiograms, and none of the changes compared to 1992 can be considered as due to occupational noise exposure. He has 0% impairment from any occupational noise exposure. Thank you.
allows a 25 dB fence which would account for any hearing loss associated with presbycusis. However, Dr. Sataloff, one of the doctors who helped create the formula utilized by the AMA Guides
explained this 25 dB fence:
Q. The American Medical Association formula has built into it a 25 decibel, I think it’s called, referred to as a fence, but a subtraction from the impairment calculation. Do you know why that is the case?
A. Well, the 25 dB fence was originally at 500, 1000, and 2,000 cycles until our committee was urged and had a lot of pressure to include 3,000 cycles for many reasons, some of them justified. The 25 dB means that until you get 25 decibel average hearing loss at 500, 1,000 and 2,000 cycles, you have no trouble hearing. It’s practically within normal fluctuation. It’s only when you get above 25 dB and considerably above that that you have clinical symptoms and everyday difficulty from hearing loss. So below 25 dB, you have no impairment and no handicap symptoms. And this was confirmed by excellent scientific study.
* * *
Q. Now, as I understand the low fence, the 25 dB low fence, the 25 dB low fence is to account for presbycusis, is it not?
A. No, sir. The high frequencies above 3,000 cycles are assumed to be worse than the thresholds below 3,000 cycles. That’s where the presbycusis factor is important.
Q. Well, are you telling me that the 25 dB low fence doesn’t have anything to do with presbycusis?
A. That’s correct.
Q. It is true, is it not, as stated in your book, that one can assume to lose a certain amount of dB for every year between 45 and 65?
A. That’s a statistical average, yes.
Q. So that between 45 and 65, you lose one dB a year, so —
A. Half a dB a year.
[21] Accordingly, I simply cannot find that Dr. Winston’s testimony to the contrary is credible. While it is the duty of the Commission to resolve conflicting medical evidence, we are not at liberty to totally ignore and disregard credible, competent, medical evidence. The majority has failed to explain why it finds Dr. Winston’s testimony regarding the 25 dB fence and presbycusis to be correct and entitled to any weight when faced with an explanation from Dr. Sataloff who actually had a hand in the development of the hearing loss impairment formula which is clearly contradictory. When one wants to know the reason for the 25 dB fence, I am convinced that Dr. Sataloff, the actual person who had a hand in the creation of this 25 dB fence is in a much better position to explain it. As explained by Dr. Sataloff, it has nothing to do with age or presbycusis. [22] The majority has assumed that Dr. Sataloff utilized the January 1992 audiogram to calculate a 0% impairment rating. However, Dr. Sataloff appeared to acknowledge in his deposition that two audiograms were actually performed in 1992, and he never clarified which audiogram he relied upon. A 0% impairment is possible using the January 1992 audiogram. Likewise, a 0% impairment is conceivable when a reduction of 1/2 dB per year for every year over the age of 45 is applied to the December 1992 audiogram. [23] When claimant’s age is factored in and one-half dB a year for every year after claimant reached the age 45 is subtracted from each of the frequencies (regardless of whether the December 1992 or September 1994 audiograms are used) the evidence reflects that claimant’s hearing loss is not sufficient to warrant a permanent impairment rating. Claimant, with a date of birth of May 28, 1937, was 57 years of age at the time claimant underwent the audiogram in September of 1994. Using Dr. Sataloff’s recommendation of one-half dB per year reduction for age related hearing loss beginning with age 45, claimant’s audiogram results for eachfrequency should be reduced by 6 dB. Utilizing the AMA Guides tothe Evaluation of Permanent Impairment, 4th Edition, claimant’s audiogram results would only account for a total decibel sum of hearing threshold level of 100 for each ear which amounts to a 0% hearing loss. Accordingly, even assuming that claimant has sustained some hearing loss as a result of his exposure to noise at work, applying the statistical average of 1/2 dB per year loss after age 45, claimant has not proven by a preponderance of the evidence that he has sustained a hearing impairment for which respondent is liable. Accordingly, I would reverse the decision of the Administrative Law Judge, awarding claimant benefits for hearing impairment. Therefore, for those reasons set forth herein, I must respectfully dissent from the majority opinion. [24] MIKE WILSON, Commissioner