COLSON v. INTERNATIONAL PAPER CO., 1995 AWCC 37

CLAIM NO. E200043

KENNETH COLSON, EMPLOYEE, CLAIMANT v. INTERNATIONAL PAPER CO., SELF-INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 3, 1995

Upon review before the FULL COMMISSION, 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 in part and reversed in part.

[1] OPINION AND ORDER
[2] This matter comes on for review by the Full Commission from the decision of the Administrative Law Judge filed on August 25, 1993 finding that claimant has proven by the preponderance of the evidence that he sustained a 20.19% permanent impairment for hearing loss. However, we reverse the determination that respondent controverted this claim.

[3] Claimant contends that he is entitled to a 34.37% permanent partial disability for his hearing loss. Respondent contends that claimant is entitled to a 20.19% permanent partial impairment for hearing loss which they have accepted and paid. A hearing was held and an Administrative Law Judge found in favor of the respondent as to the issue of permanent partial disability. However, the Administrative Law Judge also found that respondent had controverted the payment of the permanent disability benefits in excess of 8.75%.

[4] The Administrative Law Judge’s decision that claimant sustained a 20.19% permanent partial impairment for hearing loss is supported by the preponderance of the evidence.

[5] Dr. Sataloff offered the most credible medical evidence. Dr. Sataloff has practiced as a specialist in the field of otology for over 35 years. He has specialized in the study of the effects of noise exposure upon the hearing mechanism and is a well-established leader in this field. Dr. Sataloff was chairman of the committee that developed the AMA formula used to rate impairment due to noise induced hearing loss. In his deposition, Dr. Sataloff stated that there are many causes of hearing loss. These include diseases such as diabetes and leukemia, exposure to loud noises over a period of time, shooting firearms, and hearing loss attributable to the natural aging process. Dr. Sataloff reviewed the medical information in claimant’s history and reached a medical conclusion that two separate diagnoses of claimant’s hearing loss were appropriate. Dr. Sataloff determined that claimant’s hearing loss is not completely attributable to on-the-job noise and is separate from the loss due to the use of firearms. Thus, Dr. Sataloff proposed reducing claimant’s impairment by a percentage for shooting shotguns.

[6] Dr. Sataloff in a September 3, 1991 report stated:

On the basis of the findings and criteria, there is an excellent indication that Mr. Colson’s hearing loss is, to a great extent, due to genetic, progressive nerve deafness. If he has worked around the paper machines in the first ten years without ear protection, (this information is not available in the records), it is possible that some of the high frequency hearings loss is due to both occupational noise and gunshooting. The audiogram of 5/11/75 would be the maximum amount of occupationally induced hearing loss, and this would undoubtedly include his gunshooting, and about a 15% deduction could be made for outside noise contribution. If it is decided that this indeed occupational hearing loss, I believe that genetic, progressive nerve deafness is the most likely diagnosis, however, with some slight contribution by noise of all sources. The very reduced discrimination in both ears substantiates the diagnosis of genetic, progressive nerve deafness since it indicates that the nerve endings rather than the cochlear hair cells have been substantially damaged.

[7] It is apparent that some of claimant’s hearing loss is work-related and no reason to dispute it. Therefore, the question becomes whether the Workers’ Compensation Commission should use the 1975 (or 1972) audiogram given by an untrained audiologist or the 1982 audiogram given by a trained audiologist. Seemingly, respondent disregarded the audiograms given in the 1970’s not merely because these were given by untrained or at least uncertified personnel, but because, as a result of this, it was thought that they would likely contain mistaken findings. However, when performing calculations, it appears that many of the tests produce variable results even when done by certified personnel. After performing several calculations using the 1982 and the 1987 audiogram, both of which were done by certified personnel, without a gunfire discount, the 1982 audiogram yields a permanent impairment of 33.54%. The 1987 audiogram, again without the gunfire discount, yields a permanent impairment of 32.5. This implies that claimant’s hearing improved over the five-year period in question. This is not plausible. Therefore, we are of the opinion, that the 1972 test which was recommended to be used by Dr. Sataloff is appropriate.

[8] Based upon our review of the entire record, it is our opinion that the Administrative Law Judge correctly determined that the preponderance of the evidence shows claimant is entitled to 20.19% permanent partial impairment for hearing loss. Therefore, we affirm this portion of the Administrative Law Judge’s decision.

[9] Based upon the September 3, 1991 report, respondent deducted 15% from the total impairment based upon the use of firearms and accepted and paid that amount. Subsequently, in Dr. Sataloff’s deposition, clarification was made. He stated that he did not intend for respondent to subtract 15% from the total impairment but had meant for respondent to take 15% of the total impairment and then deduct the amount for use of firearms. At this point, respondent immediately recalculated the impairment amounts and paid claimant the entitled benefits resulting in 20.19% permanent impairment rating. Respondent did not controvert this claim.

[10] Claimant must prove controversion by the preponderance of the evidence. Walter v. Southwestern Bell,17 Ark. App. 43, 702 S.W.2d 822 (1986); Hamrick v. ColsonCoal, 271 Ark. 740, 610 S.W.2d 281 (1981). In Hamrick, the court also pointed out:

Moreover, it is well-settled that the mere failure of an employer to pay compensation benefits does not amount to controversion, especially in instances when the carrier accepts the injury as compensable and is attempting to determined the extent of disability.
(Emphasis supplied.)

[11] 271 Ark. App. P. 743, See also Walter v. Southwestern Bell,supra.

[12] In the Hamrick case, claimant’s counsel argued that “nothing would have been paid unless appellate’s had hired an attorney.” Claimant’s counsel, in the present case, appears to be making the same argument. However, the Supreme Court rejected this argument as a basis for controversion and affirm the Commission in holding that there was, in fact, no controversion by the respondent.

[13] In this case, it is clear that respondent was not controverting benefits. They accepted the opinion of Dr. Sataloff the first time and calculated benefits based upon their interpretation of his report. Furthermore, they forwarded this report to Mr. Sataloff who apparently inadvertently agreed to their calculation. However, subsequently, during his deposition, Dr. Sataloff made his opinion more clear. At that point, respondent immediately accepted the additional amounts and forwarded that amount to claimant. There is no indication that respondent’s actions would have been different if claimant had not been represented. Respondent was merely investigating and collecting medical information to evaluate the extent of disability. Respondent accepted the additional permanent partial disability after a complete thorough evaluation. There is no indication that carriers should be penalized by controversion under these facts. To the contrary, the Commission would be a disservice to the intent of the law by imposing the penalty of controversion under these facts. Such a penalty actually would totally thwart any incentive for a respondent carrier to, in good faith, pay and accept permanent partial disability benefits rather than litigate “a difficult decision”. In this case, it is clear that there are two reasonable interpretations of Dr. Sataloff’s September 3, 1991 report. As soon as Dr. Sataloff’s intent was made clear, the additional amounts were paid.

[14] Furthermore, simply because benefits are delayed does not amount to controversion. Bridgeway Pulpwood v.Baker, 7 Ark. App. 214, 646 S.W.2d 711 (1983).

[15] The respondent did not controvert the payment of the additional permanent partial impairment. Therefore, the facts in this case do not indicate that claimant has proven by the preponderance of the evidence that respondent controverted the additional permanent partial disability benefits. Thus, we reverse this portion of the Administrative Law Judge’s opinion.

[16] IT IS SO ORDERED.

FRANK NEWELL, Special Chairman ALLYN C. TATUM, Commissioner

[17] Commissioner Humphrey dissents.