CLAIM NO. E304021
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 12, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE PHILIP E. KAPLAN and the HONORABLE SILAS H. BREWER, Attorneys at Law, Little Rock, Arkansas.
Respondent represented by the HONORABLE MICHAEL J. DENNIS, Attorney at Law, Pine Bluff, Arkansas.
Decision of Administrative Law Judge: Affirmed in part; affirmed as modified in part.
[1] OPINION AND ORDER[2] The respondent appeals an opinion and order filed by the administrative law judge on April 25, 1997. In that opinion and order, the administrative law judge found that the respondent failed to prove by a preponderance of the evidence that the present claim is barred by the statute of limitations. The administrative law judge also found that the claimant sustained an injury to his hearing arising out of and during the course of his employment. In addition, the administrative law judge found that the respondent is liable for the costs associated with providing the claimant hearing amplification devices for both ears. The administrative law judge also found that the respondent is liable for a 45.4% permanent impairment to the claimant’s hearing capacity. [3] After reviewing the respondent’s notice of appeal, we find that the respondent has elected not to appeal the administrative law judge’s finding that the statute of limitations does not bar the present claim. After conducting a de novo review of the entire record, we find that the claimant proved by a preponderance of the evidence that bilateral hearing aids are reasonably necessary for treatment of the claimant’s compensable hearing impairment. Therefore, we find that the administrative law judge’s decision in this regard must be affirmed. In addition, we find that the greater weight of the credible evidence in the record establishes that the claimant sustained a 4.7% permanent impairment to his hearing capacity causally related to his employment with the respondent. Therefore, we find that the administrative law judge’s decision in this regard must be affirmed as modified. [4] The claimant became employed at the respondent in 1952. The claimant transferred to the Pine Bluff mill in 1958. The claimant testified that he worked in the laboratory his first 9 months, then transferred to maintenance and has worked in maintenance since that transfer. The claimant testified that he tended the number one and two machines at the Georgetown facility, and that these were noisy. The claimant testified that his specialty was pipe fitter before “multi-craft” was started. The claimant testified that during his work in maintenance the paper machine and mill were noisy. [5] The testimony of Mr. George McCarthy indicates that the plant made hearing protection devices available to employees in the early 1970’s and that hearing protection became mandatory in the early 1980’s. The testimony of Mr. Bernard Burns also indicates that the respondent began conducting noise surveys in approximately 1969. The record includes a series of audiograms for the claimant from testing beginning in 1972 and continuing through 1994. [6] As to the nature and extent of the claimant’s occupational hearing loss, Dr. Daniel Orchik, the head of audiology at the Shay Clinic in Memphis, Tennessee, testified on behalf of the claimant and opined that the claimant has sustained a 45.4% impairment to his hearing using the “Oregon” formula, and that all of the claimant’s current hearing impairment is causally related to the claimant’s employment. Dr. Joseph Sataloff, an otologist whom the respondent has consulted with regard to implementation of their hearing conservation program for over 25 years, testified on behalf of the respondent. Dr. Sataloff’s testimony indicates that he believes the claimant has probably experienced a 7-9% impairment to his hearing capacity causally related to his employment using the AMA Guides to the Evaluation of PermanentImpairment (hereafter “AMA Guides”). [7] After reviewing the testimony of the claimant, Dr. Orchik, Dr. Sataloff, and all other evidence in the record, we find that the greater weight of the credible evidence in the record establishes that the claimant has sustained a 4.7% impairment to his hearing capacity causally related to his employment with the respondent. [8] Initially, we note that we have recently conducted a de novo
review in a series of hearing loss cases in which Dr. Orchik also advocated application of the “Oregon” formula as opposed to theAMA Guides formula for purposes of calculating permanent hearing impairment ratings. In the present case, Dr. Orchik opined that the AMA Guides formula, which measures hearing thresholds at 500 Hz, 1000 Hz, 2000 Hz, and 3000 Hz, fails to account for important high frequency conversational speech above 3000 Hz. According to Dr. Orchik, the “Oregon” formula, which also includes threshold measurements at 4000 Hz and 6000 Hz in calculating an impairment rating, more accurately reflects actual hearing impairment because a significant amount of speech information (15% to 25%) is above 3000 Hz. [9] In assessing the weight to be accorded Dr. Orchik’s testimony in this regard, we note that the 4th edition of the AMA Guides
(1993 Edition), indicates that the criteria for determining hearing impairment in the AMA Guides were adapted from information provided by the American Academy of Otolaryngology-Head and Neck Surgery. In addition, we note that the claimant has not presented into evidence any research studies or reports of any nature which indicate any scientific basis to support the claimant’s assertion that this Commission should abandon the AMA Guides formula for the “Oregon” formula. Finally, we note that Dr. Sataloff, who served as Chairman of the committee that prepared the AMA Guides
impairment formula, testified that the AMA Guides formula was well established by a study at the University of Pittsburgh, that there has yet to be any scientific study to refute it, and that the AMAGuides formula is used in almost all states. After considering the testimony of Dr. Sataloff, the testimony of Dr. Orchik, and all evidence properly in the record, we find that the proper formula for calculating noise induced hearing impairment under the Arkansas Workers’ Compensation Law is the AMA Guides formula. [10] In addition, we find that the preponderance of the credible evidence in the record establishes that the appropriate audiogram in the record for calculating the claimant’s occupational noise induced hearing impairment is the claimant’s 1972 audiogram, and our calculations using the AMA Guides formula using the claimant’s June 22, 1972, audiogram indicates that the claimant sustained a 4.7% hearing impairment as of that date. [11] In reaching this conclusion, we note that, based on information that he received from the claimant, Dr. Orchik opined that he believed all of the claimant’s hearing loss to date is causally related to the claimant’s employment through 1995. However, Dr. Sataloff testified that studies show that occupational noise-induced hearing loss essentially reaches a maximum level after ten to twelve years of constant exposure, although an additional 5 — 10 Db threshold increase may occur at the lower frequencies even after ten to twelve years. Dr. Sataloff’s testimony in this regard appears consistent with the 1989 “Occupational Noise-Induced Hearing Loss” criteria adopted by the American College of Occupational Medicine, and attached to Dr. Sataloff’s deposition. In this regard, criteria no. 7 states “Given stable exposure conditions, 3000, 4000, and 6000 Hz will usually reach an asymptote (maximum level) in about ten (10) to fifteen (15) years.” Dr. Orchik apparently agrees in principle to criteria no. 7, but apparently considers further loss at low frequencies possible or likely even after 10 — 15 years. In this regard, Dr. Orchik testified:
[12] In the present case, we find that the greater weight of the evidence in the record indicates that the claimant received his greatest degree of noise exposure during his earliest years of his employment with the respondent. In reaching that conclusion, we note that Dr. Orchik has not testified to any specific information which might have led him to conclude that the claimant did not receive his maximum degree of noise exposure during his early employment years, so that all of the claimant’s current loss might be attributable to occupational noise exposure. Likewise, Dr. Orchik did not testify regarding the extent that additional loss at 2000 Hz after 10-15 years would actually affect this or any other worker’s hearing impairment. [13] Dr. Sataloff testified that he reviewed the claimant’s records, and that he believed the claimant’s hearing impairment rating should be based on the claimant’s 1972 audiogram, performed approximately 20 years after the claimant became employed by the respondent. [14] In light of the claimant’s testimony that he generally worked in noisy areas of the plant, the evidence that hearing protection became available in the early 1970’s and that hearing protection became mandatory in the early 1980’s, together with the lack of any specific evidence in the record that the claimant ever received any unusual noise exposure after 1972, we accord great weight to the opinion of Dr. Sataloff that the claimant’s 1972 audiogram is the appropriate audiogram for determining the claimant’s work-related noise-induced hearing loss. However, although Dr. Sataloff has indicated that this audiogram would support a 7-9% hearing impairment rating, our application of theAMA Guides formula, to the claimant’s June 22, 1972, audiogram indicates only a 4.7% hearing impairment. Therefore, for the reasons discussed above, we find that the administrative law judge’s decision in this regard must be affirmed as modified. [15] Finally, we note that Dr. Sataloff opined in a 1993 letter that the claimant would benefit from two hearing aids, and Dr. Orchik has also concluded that the claimant’s hearing loss would best be compensated for by using two hearing aids. Consequently, we find that the claimant in the present case proved by a preponderance of the evidence that amplification devices for both ears are reasonably necessary for his work-related hearing loss. Therefore, we find that the administrative law judge’s decision in this regard must be affirmed. [16] 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 in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996). For prevailing in part on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996). [17] IT IS SO ORDERED.Q. Given stable exposure conditions losses of three thousand (3,000), four thousand (4,000), and six thousand (6,000) hertz will usually reach a maximum level in about ten to fifteen (15) years?
A. Three, four, and six thousand (6,000) hertz very often, yes. Now, if you are saying there is absolutely no change beyond that, I would disagree. But if you are saying that the predominant nature of hearing loss at those frequencies is occurrent, I would say that’s true.
Q. All right, so if we’re using the AMA Guides formulas, then picking one, picking an audiogram that occurs fifteen (15) years into the exposure should reveal the greatest amount of hearing loss attributable to the occupational exposures, shouldn’t they?
A. No, because it doesn’t take into account the fact that with prolonged exposure at high levels of noise, noise-induced hearing loss can bleed or seep into frequencies below three thousand (3,000) hertz, especially two thousand (2,000) hertz.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[18] Commissioner Humphrey concurs in part and dissents in part. [19] CONCURRING AND DISSENTING OPINION[20] I concur in part and respectfully dissent in part from the majority opinion. I concur with the finding that claimant has demonstrated the reasonableness and necessity of bilateral hearing aids for the treatment of his work-related hearing loss. However, I cannot agree that claimant’s permanent impairment rating should be modified in the manner indicated by the majority. [21] Respondent’s expert, Dr. Sataloff, opined that claimant’s 1972 audiogram should be used in calculating his hearing impairment. The majority affords great weight to the testimony of Dr. Sataloff in this regard. However, Dr. Sataloff also indicated that the 1972 audiogram would justify an impairment rating of 7-9%. Nevertheless, the majority determined that Dr. Sataloff misapplied the AMA Guides and reduced claimant’s permanent impairment rating to 4.7%. Although this is a small discrepancy, it calls into question the testimony of Dr. Sataloff. [22] Based on the foregoing, I concur in part and respectfully dissent in part. [23] PAT WEST HUMPHREY, Commissioner