CLAIM NO. E304130
DON PERRY REYNOLDS, EMPLOYEE, CLAIMANT v. INTERNATIONAL PAPER COMPANY, SELF-INSURED EMPLOYER, RESPONDENT 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 28, 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 49.7% 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 loss. 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 establishes that the claimant sustained a 12.2% 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 first became employed at the respondent’s paper mill in 1962 and worked between 1962 and 1965 as a plugger and laborer on the paper machines. After approximately 8 months away from the respondent’s plant, the claimant returned to work on the paper machines. The claimant testified that he then worked in the extruder department for a few months before transferring to maintenance. The claimant testified that in maintenance he has worked on the paper machines, in the power plant and in the water plant. The claimant testified that he has been wearing hearing protection most of the time when working around noise, since the time hearing protection became available in the 1970’s. [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 49.7% total 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 experienced a 12.2% impairment to his hearing capacity causally related to his employment using the AMAGuides to the Evaluation of Permanent Impairment (hereafter “AMAGuides”). [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 12.2% 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 establishes that the appropriate audiogram in the record for calculating the claimant’s occupation noise induced hearing impairment is the claimant’s 1984 audiogram. [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. However, Dr. Sataloff testified 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:
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.
[12] In the present case, we find that the greater weight of the evidence in the record indicates that the claimant experienced his highest level of constant noise exposure long before 1984. In reaching that conclusion, we note that the claimant’s own testimony indicates that the claimant began using hearing protection in noisy areas in the 1970’s, indicating that the claimant’s highest level of noise exposure occurred between 1962 and that time in the 1970’s when the claimant began using hearing protection in noisy areas. [13] Dr. Sataloff testified that based on his review of the claimant’s records, and using the claimant’s 1984 audiogram (performed approximately 22 years after the claimant first became employed by the respondent) the claimant had sustained a work-related hearing impairment of 12.2% under the AMA Guides
formula. Our calculations using the claimant’s 1984 audiogram are consistent with Dr. Sataloff’s calculations applying the AMAGuides formula. [14] In light of the claimant’s testimony regarding his work areas and noise exposure, 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 1984, we accord greater weight to the opinion of Dr. Sataloff that the claimant’s 1984 audiogram is the appropriate audiogram for determining the claimant’s work-related noise-induced hearing loss, than to the opinion of Dr. Orchik that a later audiogram closer to the date of the hearing is more appropriate. Consequently, for the reasons discussed herein, we find that the greater weight of the credible evidence establishes that the claimant has sustained a 12.2% impairment to his hearing capacity causally related to his employment. Therefore, 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 that the claimant would benefit from one hearing aid for the claimant’s work-related hearing loss. Dr. Orchik, an audiologist whose clinic obviously actively engages in fitting amplification devises, has concluded that the claimant’s hearing loss would best be improved by using two hearing aids. In light of the audiograms and testimony indicating that the claimant has experienced sufficient work-related threshold shifts to have sustained a permanent anatomical impairment in each ear under the AMA Guides formula, Dr. Sataloff’s acknowledgment that the claimant would benefit from a hearing aid, and Dr. Orchik’s expertise as an audiologist (i.e., fitting hearing amplification), we find that the claimant in the present case proved by a preponderance of the evidence that amplification devices for each ear 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.
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 in the finding that claimant has demonstrated the reasonableness and necessity of bilateral hearing aids. However, I must respectfully dissent from the finding that claimant’s permanent impairment totals only 12.2% as a result of his employment with respondent. [21] Dr. Sataloff’s rating is based on an audiogram conducted in 1984. He is a proponent of the so-called 15-year rule, which the majority accurately summarized. In my opinion the 15-year rule is troublesome because it fails to allow for individual differences. It is a generalization that should not be embraced as a bright-line rule with respect to hearing loss. [22] Dr. Orchik opined that all of claimant’s hearing loss is attributable to occupational exposure to noise and advocated the use of a later audiogram. I agree. [23] Based on the foregoing, I concur in part and respectfully dissent in part from the majority opinion. [24] PAT WEST HUMPHREY, Commissioner