SHULTS v. GAYLORD CONTAINER CORP., 1998 AWCC 190

CLAIM NO. E304142

WILLIAM SHULTS, EMPLOYEE, CLAIMANT v. GAYLORD CONTAINER CORP., EMPLOYER, RESPONDENT and CNA INSURANCE CO., CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 29, 1998

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

Claimant represented by PHIL KAPLAN and SILAS H. BREWER, Attorneys at Law, Little Rock, Arkansas.

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

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] The respondent appeals an order of the Administrative Law Judge filed May 9, 1997 finding that William Shults sustained a compensable gradual onset hearing loss arising out of and in the course of his employment with respondent and that respondent is responsible for claimant’s 19.8% permanent binaural impairment and reasonable hospital and medical expenses to include binaural amplification devices. Based upon our de novo review of the entire record, we find that claimant has failed to meet his burden of proof, therefore, we find that the decision of the Administrative Law Judge must be and hereby is reversed. [3] The evidence reveals that claimant began working for respondent’s predecessors in September of 1968. Specifically, claimant was hired by Dierks Paper Company on September 3, 1968, and has continued to work at this paper mill facility since that time. About the time claimant was hired by Dierks, Weyerhaeuser purchased Dierks Paper Company. The record further reflects that in December of 1985 respondent, Gaylord Container Corporation purchased the assets of this Weyerhaeuser Paper Mill Facility. On or about January 1, 1986, respondent assumed the business of Weyerhaeuser pursuant to the asset purchase and real estate exchange agreement made on December 21, 1985. This asset purchase and real estate exchange agreement was introduced into evidence by respondent and specifically provides that respondent will not assume or be liable for any of Weyerhaeuser’s liabilities or obligations whether arising out of any claims for workers’ compensation or otherwise. [4] The evidence reflects that sometime during Weyerhaeuser’s ownership of the Paper Mill, Weyerhaeuser required hearing tests of its employees. Claimant introduced documentation reflecting that claimant underwent a hearing test at least as early as October of 1978. This test result, introduced into evidence as Claimant’s Exhibit No. 1, Page GL00107 reveals noticeable and appreciable hearing loss in the higher frequency levels, specifically the 3000 and 4000 Hz’s. Claimant’s Exhibit No. 1, Page GL00101 entitled Listing of Audiometric Test Data compiles several audiogram results for claimant dated October 23, 1982, November 2, 1984, and October 4, 1985 all of which were prepared prior to claimant’s being employed by respondent. Like the test results from 1978, these results reveal an appreciable loss of hearing in the higher frequency levels. Claimant offered testimony that at one point, he went to a doctor on his own and was advised that he needed hearing aids. However, claimant did not follow through with the recommendation and never obtained the amplification devices. Claimant testified that he was uncertain of the date that he went to the doctor, but did acknowledge that at the time of his October, 1980 hearing test, the audiologist made a notation that claimant had seen a doctor following his last test. [5] The burden of proof rests upon the claimant to prove the compensability of his claim. Ringier America v. Comles, 41 Ark. App. 47, 849 S.W.2d 1 (1993). There is no presumption that a claim is indeed compensable. O.K. Processing, Inc. v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979). The party having the burden of proof on the issue must establish it by a preponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (1987) (Repl. 1996). In determining whether a claimant has sustained his or her burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704; Wade v. Mr. C Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989); and Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987). [6] The evidence reveals that at the time claimant began his employment at the Dierks facility, a hearing conservation program was not in place. After Weyerhaeuser acquired the facility, Weyerhaeuser implemented a hearing conservation program and issued hearing protection devices as well as implemented annual hearing tests. When respondent acquired the Pine Bluff facility, respondent continued on with the hearing conservation program implemented by Weyerhaeuser. In addition, respondent appeared to take a stricter stance regarding the enforcement of the program. At the hearing held on April 29 and 30, 1996, respondent contended that the scientific evidence supports a finding that any gradual onset hearing loss sustained by claimant as a result of his employment achieved a maximum amount of loss prior to claimant’s employment with respondent. In support of this contention, respondent offered the deposition of Dr. Joseph Sataloff. Dr. Sataloff is a preeminent authority on occupational hearing loss in this country. Dr. Sataloff is board certified in ear, nose and throat medicine and is a Senior Professor of Otology at Thomas Jefferson University. Dr. Sataloff has published numerous books on hearing loss and over 125 papers which specifically address occupational hearing loss. Dr. Sataloff’s textbook on hearing loss is used in every medical school in the country and contains over 900 pages alone on the issue of occupational induced hearing loss. Dr. Sataloff was a scientific member of the committee that wrote the OSHA noise regulations in the early 1970’s for the Secretary of Labor and was Chairman of the Committee of the AMA for hearing impairment which devised the method by which hearing impairment is calculated. During his deposition, Dr. Sataloff was asked to explain the basis for the American Academy of Occupational Medicine position that maximum level hearing loss for gradually induced hearing loss reaches a maximum level of loss in about 10 to 15 years. Specifically, Dr. Sataloff stated:

A. Well, many of us in the field have looked at hundreds of thousands, probably millions of audiograms and have found that after a person works 10 or 15 years, it’s generally 12 years, in a noisy environment, the amount of hearing loss he sustains from a loud job reaches a maximum and does not continue to get worse from noise exposure. It gets worse as he gets older and other causes. But it stays the same after that. So that the maximum amount of hearing loss that’s caused can pretty well be determined after a person is 10, 12 years on his job. Of course, if he gets another job that’s louder, that’s different. But if he works in a very noisy job, like a textile mill operator, and has a hearing loss, then that noise he no longer hears because he’s hard of hearing and it doesn’t do him any further damage. That’s why you should hire these people, they’re both trained and they have a hearing loss. You just protect them from getting worse and they do pretty well.

[7] In this regard, Dr. Sataloff was specifically asked:

Q. In the particular cases that we’re talking about today, Gaylord Container Corporation purchased a facility in Pine Bluff, Arkansas, and began its operation in January of 1986. And we’re talking about employees who worked for the previous owners of the facility for sometimes as much as 20 years prior to that date. Does that affect the amount of occupationally noise-induced hearing loss you would expect to find, considering only the exposure at Gaylord?
A. Was the exposure at Gaylord just about the same as it was in previous jobs, the same job requirement?

Q. Essentially the same job requirements.

A. The amounts of hearing loss they had when they left their previous job would be the maximum amount that’s produced certainly in 20 years. And they’re hard of hearing. If they are hard of hearing, they would not be aggravated by their present job.
Q. What if a person had worked that 20 years and had not already become hard of hearing?
A. Well, if he works on this job and it makes him hard of hearing, you’ve got to find out what else caused that hearing loss because the chances are there must be other causes. He’s already 20 years older, for example. And there are many other things that set in at that stage. Here you have to make a specific diagnosis in each case.
Q. And would that tend, if there is a continuation, would that tend to rule out occupational noise exposure as the cause?

A. It would help, yes, sir.

[8] Dr. Sataloff was provided with information regarding the hearing conservation program implemented by respondent after its purchase of the Pine Bluff facility. When asked if the program was an appropriate program, Dr. Sataloff stated:

A. I would say it’s a very appropriate and very good program. And I would commend them for having such a program.
Q. There will probably be some testimony in this case that previous owners were somewhat lax in their enforcement of their use of safety equipment, including ear plugs. Have you seen instances where, when a program changes, that it meets with some employee resistance?

A. Almost always.

Q. Do you think the memorandum concerning enforcement being stricter and things of that nature is an appropriate method to overcome that resistance?
A. Yes, sir. Very much so. They did a very good job protecting their employees starting in 1986, just what OSHA recommended.

[9] Dr. Sataloff was asked to assume that during claimant’s first 15 or 20 years of employment at the paper mill facility enforcement of a hearing conservation program was rather lax, but during the past 8 or 9 years, the enforcement of hearing conservation was more widespread and accepted. Then he was asked if such assumption would “further decrease the chance of this latter exposure causing injury to these workers.” To which Dr. Sataloff responded “Absolutely. If it was implemented the way they say here, I would say the employees did not sustain any additional aggravation.” [10] During cross-examination, Dr. Sataloff was asked further about the 10 to 12 year exposure resulting in maximum amount occupational induced hearing loss. Specifically, the following dialogue transpired:

Q. Now, isn’t it true that after the 10 to 15-year period when noise-induced hearing loss affects the 3,000, 4,000 range, that you can expect, if one continues to stay in high noise levels, let’s say TWAs again of 95 to 105, that that prolonged exposure will now affect hearing below the 3,000 hertz range?
A. I think if it were going to affect it, it would affect it within the first 10 or 12 years. That loss occurs, now they’ve been in there for 20 years, there are other causes of hearing loss.
Q. Well, isn’t it true that the lower ranges take a lot longer to affect than the higher range?
A. That’s never been established. But it may be true. There’s a considerable difference. Dr. Glorig, for example, believes that a five or 10 dB loss in the low frequencies can occur after 15 years. But it’s pretty hard to say. We don’t have enough scientific evidence.

Q. You wouldn’t rule it out, would you?

A. Five dB? I would not.

Q. No, no, I mean that after 15 years of exposure to high levels of noise of the level that I just spoke of would then begin to affect the 1,000 and 2,000 hertz range?

A. More than five or 10 dB? No, sir, not at all.

Q. But within that, at least you’re going to — you don’t have any dispute then with the five to 10 dB range?

A. If the person is working in very loud noise.

Q. What do you consider to be very loud noise?

A. Oh, 98 to 100 dBA or more. However, by this time, he’s wearing ear protectors in that noise. Everybody is. So nowadays, when we see this in the past 10 years, it’s not noise.

[11] Dr. Sataloff was also asked if after years of exposure to hazardous level of noise whether the lower frequency range may continue to worsen even after the higher frequency range has leveled off to which he responded “Yes sir. While they’re still exposed before 15 or so years, yes, sir.” It was pointed out to Dr. Sataloff that in a previous deposition he did not qualify a response to such a question to be within the first 15 or so years to which he responded “Well, that’s noise exposure. That was the qualification of the noise exposure.” [12] In response to this argument, claimant introduced the deposition of Michael E. Winston, a Ph.D. in audiology. Although Dr. Winston’s CV was marked as an exhibit to his deposition, the deposition introduced into evidence in this case fails to include a copy of that exhibit. Dr. Winston does not treat persons for noise induced hearing loss rather, he evaluates the loss of hearing sustained by individuals. He does not make a medical differential diagnosis. Dr. Winston testified in his deposition that he does not believe that the level of hearing loss will reach a maximum hearing loss after a certain number of years of exposure. Specifically, Dr. Winston testified:

I have heard theories in the past years proposed by individuals that there is a maximal point at which hearing does not continue to deteriorate. I do not believe that to be a correct statement.
While it may be statistically appropriate, individually there are those individuals who’ve lost major amount of hearing loss in the progressive fashion over a long period of time due to what we believe was excessive noise exposure.
So I do not believe that there is a ceiling affect at which point beyond, regardless of length of exposure, you do not acquire further hearing loss.

[13] With regard to this opinion, Dr. Winston has not offered any evidence to explain why he disagrees with this finding. While critical of the American Occupational Medical Association Noise and Hearing Conservation Committee, Dr. Winston admitted that he has undertaken no statistical analysis of the criteria with regard to the 10 to 15 year rule for maximum hearing loss for occupational induced hearing loss and even admitted that such theory “may be statistically accurate.” [14] After considering the qualifications of Dr. Sataloff and Dr. Winston, we find that greater weight should be placed upon Dr. Sataloff’s testimony with regard to whether a person reaches a point of maximum loss after 15 years of exposure. Dr. Sataloff is a preeminent medical doctor specializing in the field of hearing loss. His book entitled Occupational Hearing Loss is utilized in medical schools throughout the country. Dr. Sataloff explained in detail that the scientific basis for his opinion regarding maximal loss after 15 years is accepted by the scientific community. According to Dr. Sataloff, there is not enough scientific evidence to support the theory of additional hearing loss after 15 years. This theory is proposed and accepted by the American Academy of Occupational Medicine. Dr. Sataloff testified that this committee developed a number of criteria to help doctors differentiate the cause of hearing loss. Dr. Sataloff testified that the criteria developed by this committee has been:

Reviewed by over a dozen scientists and many more in lots of different disciplines. . . . it takes a long ordeal to get agreement in things like this in medicine. And this was published after many consultations and deliberations by experts.

[15] The evidence in this case reveals that claimant had been working for respondent’s predecessors for over 18 years at the time claimant became employed by respondent. The evidence further reveals that claimant’s audiograms taken prior to claimant’s employment with respondent revealed claimant had “measurable impairment in 1980, well before respondent purchased the facility.” (See Dr. Winston’s deposition) Accordingly, in light of the scientific evidence established through Dr. Sataloff’s deposition that a person exposed to occupational noise will reach a point of maximum hearing loss after at least 15 years of exposure, we find that claimant has failed to prove by a preponderance of the evidence that he sustained any hearing loss during the course and scope of his employment with respondent. In this regard, we note that the Administrative Law Judge suggested in his opinion that the respondent expanded its operation and increased the noise levels after purchasing the plant in late 1985. However, we find that the evidence does not support this suggestion. After reviewing the testimony of the claimant, Dr. Sataloff, Dr. Winston and Dr. Rimmer, we cannot find that claimant was, in fact, exposed to any greater degree of noise after respondent purchased the facility. Therefore, we cannot find that claimant’s employment with respondent in any way aggravated any pre-existing hearing loss. We further find that claimant has failed to prove that respondent is responsible for his binaural hearing impairment since as established above, claimant’s occupational noise induced hearing loss was found to have reached a point of maximum loss prior to claimant commencing his employment with respondent. Therefore, for those reasons discussed herein, we find that the decision of the Administrative Law Judge must be and hereby is reversed. [16] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[17] Commissioner Humphrey dissents. [18] DISSENTING OPINION
[19] I respectfully dissent from the majority opinion finding that claimant has failed to demonstrate by a preponderance of the evidence that he sustained a compensable gradual onset hearing loss as a result of his employment with respondent. [20] To support the denial of benefits, the majority relies on the testimony of Dr. Joseph Sataloff, a proponent of the so-called 15-year rule. According to the American Occupational Medical Association’s Noise and Hearing Conservation Committee’s Guidelines for the Conduct of an Occupational Noise-Induced Hearing Loss, the rule is as follows: “Given stable exposure conditions, 3,000, 4,000 and 6,000 Hz will reach an asymptote (maximum level) in about ten (10) to fifteen (15) years.” [21] As the majority points out, Claimant’s expert, Dr. Michael Winston, an audiologist, does not support this theory. In his deposition he discussed this issue and his comments are as follows:

I have heard theories in past years proposed by individuals that there is a maximal point at which hearing does not continue to deteriorate. I do not believe that to be a correct statement. While it may be statistically appropriate, individually there are those individuals who’ve lost major amount of hearing loss in a progressive fashion over a long period of time due to what we believe to be excessive noise exposure. So I do not believe that that there is a ceiling effect at which beyond that, regardless of length of exposure, you do not acquire further hearing loss.

[22] In my opinion, the 15-year rule is problematic because it fails to allow for individual differences. It is a generalization which should not be embraced as a bright-line rule with respect to hearing loss. [23] The majority opinion makes the following observation: “Although Dr. Winston’s CV was marked as an exhibit to his deposition, the deposition introduced into evidence in this case fails to include a copy of that exhibit.” This oversight is used to bolster the majority’s finding that Dr. Sataloff’s opinion is entitled to greater weight with respect to the 15-year rule. This Commission has previously relied on Dr. Winston’s expert testimony. See, Carol L. Loy v. Alcoa, Full Commission Opinion filed February 6, 1998 (E303147). Moreover, respondents did not challenge Dr. Winston’s qualifications. In fact, counsel for respondents stipulated to Dr. Winston’s qualifications in the field of audiology. [24] Therefore, I respectfully dissent from the majority opinion. [25] PAT WEST HUMPHREY, Commissioner