CLAIM NO. E304948
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 24, 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. 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 25.6% 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 decision regarding the statute of limitations issue. After conducting a de novo review of the entire record, we find that the greater weight of the credible evidence in the record establishes that the claimant sustained a 0% impairment to his hearing capacity causally related to his employment with the respondent. In addition, we find that the claimant has failed to prove by a preponderance of the evidence that hearing amplification devices are reasonably necessary for treatment of that portion of the claimant’s hearing loss causally related to his employment. Therefore, we find that the administrative law judge’s decision must be reversed. [4] The claimant became employed at the respondent’s paper mill in 1958. The claimant testified that he worked in the labor pool for approximately one to two years, then worked as a pipe fitter helper for approximately one to two years. The claimant then moved back to the labor pool driving a flatbed truck and then to the auto garage. The claimant testified that he keeps all of the light trucks running. The claimant testified that the noise levels in the garage are not high enough to require ear plugs. However, the claimant testified that he has occasion to work on equipment in different parts of the mill, including trucks on the paper machine. In addition, the claimant testified that he worked in the plant during shutdowns. [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 1995. [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 25.6% 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 0.0% 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 0.0% 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 under the AMA Guides formula is the claimant’s 1981 audiogram, and consistent with Dr. Sataloff’s calculations, our calculations indicate that the claimant sustained a 0.0% hearing impairment under the AMA Guides formula using the claimant’s August 12, 1981 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 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 employment with the respondent. In reaching that conclusion, we note that although Dr. Orchik has essentially opined that all of the claimant’s hearing loss between 500 Hz and 6000 Hz to date is work-related, Dr. Orchik has not identified any specific information in the record which may have led him to conclude that this claimant did not receive his maximum degree of noise exposure during his early employment years. Likewise, Dr. Orchik did not testify regarding the extent that additional loss specifically at 2000 Hz after 10 — 15 years would have affected the claimant’s work-related impairment if the claimant had in fact sustained a maximum level of constant exposure within 10-15 years. [13] Dr. Sataloff testified that he reviewed the claimant’s records, and that the claimant’s 1981 audiogram, performed approximately 23 years after the claimant first began employment with the respondent, was the appropriate audiogram for calculating the claimant’s work-related impairment rating. [14] In light of the claimant’s testimony that he generally worked in the garage for the majority of his entire employment, 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 1981, we accord great weight to the opinion of Dr. Sataloff that the claimant’s 1981 audiogram is the appropriate audiogram for determining the claimant’s work-related noise-induced hearing loss. Based on that audiogram, we find that the claimant has sustained a 0.0% impairment to his hearing capacity causally related to his employment. [15] Finally, we note that Dr. Orchik has testified that the claimant would benefit from hearing amplification in both ears. However, as discussed, Dr. Orchik has attributed all of the claimant’s present hearing loss to his work environment, which we find is contrary to the greater weight of the credible evidence in this case. Dr. Sataloff also testified that the claimant would benefit from hearing amplification at present, but Dr. Sataloff opined that the claimant’s current degree of hearing loss is age-related. Moreover, Dr. Sataloff testified that based on the degree of hearing loss that the claimant had sustained at the time of the 1981 audiogram, the claimant would not have much symptomology, and Dr. Sataloff testified that the claimant’s current need for hearing amplification is not related to the claimant’s occupational noise exposure. After considering the testimony of Dr. Sataloff, the testimony of Dr. Orchik, and all other evidence properly in the record, we find that the claimant failed to prove by a preponderance of the evidence that hearing amplification is reasonably necessary for that degree of hearing loss causally related to the claimant’s employment. [16] Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the administrative law judge’s findings awarding permanent disability benefits and medical treatment must be, and hereby are, reversed. [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 dissents. [19] DISSENTING OPINION[20] I respectfully dissent from the majority opinion that claimant failed to prove the reasonableness and necessity of hearing aids, and that he did not sustain any permanent impairment to his hearing capacity as a result of his employment with respondent. [21] Dr. Orchik, an audiologist, testified that all of claimant’s hearing loss is attributable to occupational exposure to noise. He stated that the configuration of claimant’s audiogram is consistent with noise-induced hearing loss. I am not unmindful that Dr. Sataloff is of the opinion that claimant’s hearing loss is age-related. However, Dr. Orchik testified that while physicians have specialized knowledge with respect to the identification and treatment of ear diseases, audiologists provide instruction to physicians with regard to noise exposure levels, as well as to the cause and extent of hearing loss. According to Dr. Orchik, audiologists are trained in the assessment of different types of hearing loss, noise exposure levels, and ascertaining the relationship between these elements. Accordingly, it is my opinion that the testimony of Dr. Orchik is entitled to great weight. [22] Dr. Sataloff’s 0% permanent impairment rating is based on an audiogram conducted in 1981. He is of the opinion that claimant’s hearing loss is age-related. Dr. Sataloff 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. [23] Dr. Orchik also opined that claimant would benefit from the use of bilateral hearing aids. I deem the testimony of Dr. Orchik to be credible on this issue as well. Therefore, I find that bilateral hearing aids are reasonably necessary for the treatment of claimant’s work-related hearing loss. [24] Based on the foregoing, I respectfully dissent. [25] PAT WEST HUMPHREY, Commissioner