JOHN M CARD, Applicant
BARTINGALE MECHANICAL INC, Employer
REGENT INSURANCE CO, Insurer
Bartingale Mechanical Insurance Company (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on April 7, 2008. Briefs were submitted based on the stipulated facts. At issue is whether or not the applicant sustained an occupational hearing loss attributable to his employment with Bartingale Mechanical, with an occupational date of injury on September 30, 2004. If such compensable injury is found, then the nature and extent of disability, as well as the cost of a hearing aid obtained in 2004, are also at issue.
Based on the stipulated facts, the commission affirms the administrative law judge's ultimate findings of an occupational hearing loss injury and liability for the 2004 hearing aid; however, the commission substitutes the following for the administrative law judge's Findings of Fact:
The relevant facts were stipulated without a hearing. The applicant worked approximately 100 days as a pipefitter in noisy employment for Bartingale Mechanical. His last day of work for Bartingale was September 30, 2004, which he claims as his occupational hearing loss date of injury, pursuant to Wis. Stat. 102.555(4)(c). That statute allows employees who have sustained occupational hearing loss to choose as the date of injury the last day of employment with the liable employer. The general rule for occupational disease, that the last employer whose employment contributed to the occupational disease is liable for the entire occupational disease compensation,(1) is applicable to occupational hearing loss with two fine tunings under Wis. Stat. § 102.555.
The first fine tuning is that the employee must have "...worked in noisy employment for a total period of at least 90 days for the employer from whom the employee claims compensation." (Wis. Stat. § 102.555(7). As previously noted, it was stipulated that the applicant worked in noisy employment for Bartingale Mechanical for a period of approximately 100 days. Accordingly, this statutory requirement was met.
The second find tuning is found in Wis. Stat. § 102.555(8), which provides:
"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."
Dr. S. Fredric Horwitz' credible medical opinion leads to the factual inference that the applicant's employment with Bartingale Mechanical between September 2003 and September 2004, contributed to his occupational hearing loss. Respondents did not establish by hearing test or other competent evidence that there was previous deafness from another source.
In the petition, respondents argue that another employer, Intrastate Piping, was the most recent employer for whom the applicant worked in a 90-day period, and that therefore Intrastate Piping is liable for the applicant's occupational deafness. There are two reasons why this argument fails. First, there is no medical opinion in the stipulated record that specifically identifies Intrastate Piping as an employer whose employment of the applicant contributed to his occupational deafness. Dr. John Wiersma did state in his report that his discussion with the applicant led him to believe "...that all of his [the applicant's] jobs were very similar with the noise exposure." Dr. Wiersma also wrote that he believed Bartingale Mechanical "...was not the last employer who contributed to [the applicant's] occupational deafness." However, Dr. Wiersma did not offer an opinion as to which employer he did believe was the last contributory employer, or why he did not believe that it was Bartingale Mechanical. His report does not include any specific mention of Intrastate Piping. Given this record, it would be highly speculative to find that the applicant's employment with Intrastate Piping contributed to his occupational hearing loss. Dr. Horwitz credibly opined that the applicant's work exposure with Bartingale Mechanical materially contributed to his hearing loss.
Second, even were it to be found that the applicant's employment with Intrastate Piping contributed to his occupational hearing loss, the last employer for whom the applicant had worked in noisy employment for a period of at least 90 days was Bartingale Mechanical not Intrastate Piping (see the stipulated "Service Detail Report" that lists the applicant's employers and employment dates). The applicant worked for Bartingale Mechanical up to September 30, 2004, which was after his last employment with Intrastate Piping. The "last employer" rule only requires that the final period of employment have been with an employer in the chain of occupational causation to make that employer liable. That employer is liable even if the worker's final period of employment with it did not include exposure to noise.(2)
Respondents additionally argue that because the applicant's employment with Bartingale Mechanical that took place after his employment with Intrastate Piping was for a period of less than 90 days, that fact relieves Bartingale Mechanical from liability. The 90-day rule of Wis. Stat. § 102.555(7), as it relates to Bartingale Mechanical, was satisfied prior to the applicant's last period of employment for that employer. Just as there is no requirement that the last period of employment with the liable employer have been in noisy employment, there is no requirement that the last period of employment with the liable employer have been for a period of 90 days. It was stipulated that prior to his last day of work for Bartingale Mechanical the applicant had worked for that employer for more than 90 days in noisy employment.
The administrative law judge addressed the majority of his decision to the issue of how the "90 days" referred to in Wis. Stat. 102.555(7), should be calculated. Does the statutory phrase refer to 90 calendar days, 90 consecutive days of some type of employment, 90 work days, or 90 days of actual noisy employment? In a decision issued by the commission in 1998, it was found that the statute meant 90 calendar days with the causative employer, regardless of how many days in that 90-day period there had been actual exposure to noise. (3) An earlier department decision found that there had to have been 90 days of exposure to employment that was actually noisy each day.(4) As previously noted, it has been stipulated that the applicant worked for approximately 100 days in noisy employment with Bartingale Mechanical. The commission herein finds that the "90 days" referred to in the statute does not require consecutive days of any kind, because the word "consecutive" is not found in the statute. Whether or not the "90 days" refers to calendar days, work days, or days of actual noisy employment need not be decided in the applicant's case, because the stipulated facts satisfy all of these contingencies. The commission declines to address an issue not necessary to be decided.
Accordingly, respondents are liable for the applicant's occupational hearing loss with the date of injury being September 30, 2004. This results in compensation due the applicant in the amount of $19,511.20, less a 20 percent attorney's fee. The sum of $3,200 is also due the applicant as reimbursement for his 2004 hearing aid expense. Jurisdiction will be reserved with respect to the possibility of future medical expense, including additional hearing aid expense.
The administrative law judge's Findings of Fact are set aside and the above commission findings substituted therefor. The administrative law judge's ultimate finding of an occupational hearing loss with a date of injury on September 30, 2004, is affirmed. Within 30 days from this date, respondents shall pay to the applicant compensation in the amount of Fifteen thousand six hundred eight dollars and ninety-six cents ($15,608.96), as well as reimbursement for his hearing aid in the amount of Three thousand two hundred dollars ($3,200); and to applicant's attorney, Douglas Q. Johnson, fees in the amount of Three thousand nine hundred two dollars and twenty-four cents ($3,902.24).
Jurisdiction is reserved for future medical expense including hearing aid expense.
Dated and mailed October 27, 2008
cardjo . wrr : 185 : 6 ND § § 3.4; 5.19
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
cc:
Attorney Douglas Johnson
Attorney Timothy Yanacheck
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