ERNEST E BRADLEY, Applicant
DAIMLERCHRYSLER CORP, Employer
DAIMLERCHRYSLER CORP, Insurer
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.
The findings and order of the administrative law judge are affirmed.
Dated and mailed August 31, 2006
bradlen . wsd : 101 : 8 ND § 5.19
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
1. Facts; posture.
This is a hearing loss case that arises without application on the department's own motion. See Valentine v. Industrial Commission, 246 Wis. 297, 300-01 (1944). At hearing, no testimony was taken, though exhibits were introduced.
The applicant worked for American Motors Corporation from 1960 to 1967. From 1965 to 1970 he owned a gas station, and worked there as well. He worked for American Brass as a pipe fitter from 1969 to 1979, and he was exposed to noise in this job.
In 1979, the applicant returned to American Motors (later known as, JeepEagle.) Before that, however, he underwent a pre-employment audiogram on August 14, 1979 (Respondent's exhibit 4), which showed an average 35 dB loss in his right ear and 10 dB loss in the left at the relevant frequencies.
The applicant worked for JeepEagle through December 1988 or January 1989. At that point, DaimlerChrysler (1) "bought out" Jeep Eagle. The details of that transaction -- whether a stock purchase or an asset purchase -- are not in the record.
Shortly before DaimlerChrysler bought out JeepEagle, JeepEagle paid the applicant $2,378.86 in permanent partial disability for a 9.1 percent binaural hearing loss. The payment was made on December 23, 1988 for the hearing loss the applicant had at the time of the buyout. See Department's exhibit 2.
Following the buyout, the applicant was an employee of DaimlerChrysler until he retired in February 2002. After retiring from DaimlerChrysler, the applicant underwent a post-employment audiogram on September 17, 2002. DaimlerChrysler paid $9,020.60 in permanent partial disability based on this audiogram. Department exhibit 5. The Department has ordered DaimlerChrysler to pay an additional $3,135.46 for the hearing loss documented by this audiogram. DaimlerChrysler appeals.
The department determines compensation for binaural occupational hearing loss under Wis. Stat. § 102.555 and Wis. Admin. Code § DWD 80.25. The department's method in determining the compensation due for hearing loss under the code provision involves several steps, which may be roughly summarized as follows:
In this case, the calculation is complicated by accounting for the pre-existing hearing loss shown in the August 1979 audiogram done before the applicant returned to employment with AMC, as well as accounting for the 9.1 percent hearing impairment measured in December 1988 when DaimlerChrysler bought out American Motors or JeepEagle.
The main issue in this case is how the 9.1 percent loss measured when DaimlerChrysler bought JeepEagle should be accounted for. The commission understands DaimlerChrysler's position to be that the loss measured at that time (December 1988) should be treated as a "pre-existing loss" contemplated in Wis. Stat. § 102.555(8), with the actual decibel level or "loss" (or the percentage of compensable impairment) subtracted from the corresponding figures from the September 2002 post-retirement audiogram. The department did not treat the payment in 1988 as reflecting a pre-existing loss -- as would have been the case if the applicant had switched employers at that time -- but rather as an advance payment of the entire hearing loss suffered by the applicant since resuming employment with DaimlerChrysler's predecessor, American Motors (or JeepEagle), in 1979.
2. Measurement at 1000 Hz in the left ear.
Before reaching the issue of how the payment made in December 1988 should be accounted for, the commission addresses an ancillary issue raised by the respondent: a dispute about the dB loss at the 1000 Hz frequency in the left ear, as measured in the applicant's September 17, 2002 post-retirement audiogram.
The record contains a document identified as the "Audiological Test Results" dated September 17, 2002. Department exhibit 5, last page. The Audiological Test Results contain a chart measuring "Hearing Threshold Level in dB" at various "Frequenc[ies] in Hz" (Hearing Threshold Chart). The measurements shown in the Hearing Threshold Chart are apparently recorded in the Average Level A/C Table. The Hearing Threshold Chart contains measurements using markings as follows:
"X" (left ear, air conduction reading)
"O" (right ear, air conduction reading)
"[" (a right-opening bracket to indicate right ear, bone conduction reading), and
"]" (a left-opening bracket to indicate left ear, bone conduction reading).
This Audiological Test Results also contains a table labeled "Average Level, AC" (Average Level A/C Table). The air conduction measurements -- the measurements shown by the "X" and "O" -- on the Hearing Threshold Chart are carried over to the Average Level A/C Table for every frequency but the left ear at 1000 Hz. At that frequency, the "X" reading is at 60 dB as shown on the chart, but 50 dB is recorded on the table. The department based its calculation on a 60dB level or "loss" at 1000 Hz, explaining that the 50 dB figure was for the 750 Hz level, not 1000 Hz (Department's Exhibit 3).
DaimlerChrysler asserts that the 50 dB loss recorded on the table is based on the bone conduction reading for the 1000 Hz level in the left ear. Indeed, the left ear bone conduction measurement at 1000 Hz on the Hearing Threshold Chart is 50 dB. DaimlerChrysler contends that Dr. Dankle, the medical expert, deliberately substituted a bone conduction reading at the 1000 Hz level and that his expert medical judgment on this point cannot be second-guessed.
The commission, of course, may not rely on cultivated intuition to disregard an uncontradicted expert medical opinion. Leist v. LIRC, 183 Wis. 2d 450, 457 (1994). However, the respondent asks the commission to assume that Dr. Dankle consciously or deliberately chose to use the bone conduction reading for the left ear 1000 Hz measurement -- as opposed to the air conduction readings he recorded on the Average Level A/C Table for all other frequencies -- even though his report is completely silent about the anomaly. (2)
The commission is not persuaded that the recording of a 50 dB level or loss at 1000 Hz reflects a conscious exercise of expertise. Rather, this appears to be an unexplained, inadvertent inconsistency. On this point, the commission observes that the Average Level A/C table may be reasonably inferred to address air conduction measurements. The commission concludes that the department correctly used the 60 dB measurement at the left ear 1000 Hz level.
3. Credit for loss shown and paid based on December 1988 audiogram.
The main issue is how to account for what DaimlerChrysler characterizes as the pre-existing hearing loss, or previous deafness, shown in the December 1988 audiogram. Wisconsin Stat. § 102.555(8) provides:
102.555(8) An employer is liable for the entire occupational deafness to which his or her employment has contributed; but if previous deafness is established by a hearing test or other competent evidence, whether or not the employee was exposed to noise within the 2 months preceding such test, the employer is not liable for previous loss so established nor is the employer liable for any loss for which compensation has previously been paid or awarded.
The department did not deduct the decibel loss or hearing impairment percentage shown in the December 1988 audiogram, but rather gave DaimlerChrysler a credit for the dollar amount that JeepEagle paid based on that audiogram. In essence, the department did not consider the December 1988 payment as being for a "pre-existing loss" or "previous deafness," but simply as an advance on the total hearing loss due to employment since 1979 at American Motors, JeepEagle, and DaimlerChrysler as one employer, measured as of the time of the applicant's retirement in 2002. This, DaimlerChrysler asserts, overcompensated the applicant.
The department's calculations are shown in Department exhibit 4. Using the
September 2002 post-employment audiogram, the department averaged the 30 dB, 40
dB, 85 dB and 100 dB losses shown at the various frequencies in the right ear,
to come up with a 63.77 dB loss in the right ear. The department then subtracted
out the pre-existing right ear 35 dB loss shown in the August 1979
pre-employment audiogram, but added back in the 30 dB threshold level to get to
the "correct place" in the chart at Wis. Admin. Code DWD 80.25, pursuant to its
policy with respect to pre-existing losses. (3)
This resulted in a right ear average decibel loss of 58.77 dB. Using 25 dB, 60
dB, 45 dB, and 60 dB losses in the left ear, the department calculated an
average 47.50 dB loss in the left ear. (4)
The right and left ear decibel losses result in a percentage loss of 46.4 percent and 28.8 percent respectively. Following the five-to-one weighted average specified in the administrative code, the Department found a 31.74 percent binaural loss from employment since 1979 with AMC, JeepEagle, and DaimlerChrysler. At the weekly PPD rate for 2002 of $212, this totaled $14,534.72. From this it subtracted the $2,378.66 that JeepEagle paid in December 1988 and the $9,020.60 that DaimlerChrysler more recently paid on the September 2002 audiogram. It ordered DaimlerChrysler to pay the remainder, $3,135.46.
DaimlerChrysler appears to accept the 31.74 percent loss for employment after 1979 derived from the September 2002 post-retirement audiogram, assuming of course that a 60 dB loss is used for the 1000 Hz frequency measurement in the left ear. However, DaimlerChrysler asserts the proper course is to subtract out the underlying 9.1 percentage hearing binaural hearing loss -- or the corresponding binaural decibel loss -- on which JeepEagle based its payment in 1988, rather than the $2,378.66 payment itself. DaimlerChrysler brief, last three paragraphs on page 4.
Accepting, then, that the September 2002 post-retirement audiogram shows a total 31.74 percent binaural loss attributable to employment after 1979, subtracting the 9.1 percent loss based on the December 1988 audiogram would leave 22.64 percent. Applying the 216-week base and the $212 PPD rate for 2002, the total additional payment attributable to employment after 1988 would be $10,367.30, not the $12,156.06 figure the department obtained. (5) Under DaimlerChrysler's calculations, DaimlerChrysler would only owe an additional $1,346.70, not the $3,135,46 the department assessed. (6)
The department based its determination on an implicit finding that there is one continuing employer from 1979 to 2002 for worker's compensation purposes -- and one continuing hearing loss -- despite the intervening buyout in 1988. (7) However, DaimlerChrysler assumes that pre-existing loss or previous deafness may be measured in December 1988 when DaimlerChrysler bought out JeepEagle.
The commission cannot accept DaimlerChrysler's calculation. Wisconsin Stat. § 102.55(4) provides in part:
...In cases covered by this subsection, "time of injury", "occurrence of injury", or "date of injury" shall, at the option of the employee, be the date of occurrence of any of the following events to an employee:
(a) Transfer to nonnoisy employment by an employer whose employment has caused occupational deafness;
(b) The last day actually worked before retiring, regardless of vacation pay or time, sick leave or any other benefit to which the employee is entitled;
(c) Termination of the employer-employee relationship; or
(d) Layoff, provided the layoff is complete and continuous for 6 months.
Like the department, the commission concludes the applicant has worked for one employer since 1979, whether called American Motors, JeepEagle, or DaimlerChrysler. Because there was no termination of the employer-employee relationship in December 1988, and because there is no proof of a removal from noisy employment or a six month layoff before the applicant's retirement in 2002, DaimlerChrysler may not validly claim a "date of injury" establishing a pre-existing hearing loss, or previous deafness, based on the audiogram done on December 23, 1988. Instead of deducting a decibel or percentage loss based on that audiogram, then, the department properly treated the $2,378.66 payment as an advance on the total loss for which DaimlerChrysler was liable as measured following the applicant's retirement. See Wis. Stat. 102.555(8).
Taken to its extreme, DaimlerChrysler's method of calculation could allow an
employer to fragment an occupational hearing loss claim into multiple smaller
claims at lower permanent partial disability rates based on multiple dates of
injury, rather than a single claim with a single end-of-employment date of
injury contemplated by Wis. Stat. § 102.555(4). The commission realizes the
December 1988 buyout makes this case appear distinguishable from others where an
employer requires periodic hearing tests during the course of employment. (8) However, on the record before it, the commission, like the ALJ and the department, concludes DaimlerChrysler and JeepEagle should be treated as a single employer.
cc:
Attorney Thomas M. Rohe
Attorney Karl A. VanDeHey
DaimlerChrysler Corp., Lexington KY
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