JACK JAMES FALK, Applicant
MEMORIAL MEDICAL CENTER INC, Employer
UNITED WISCONSIN, 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. Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed April 30, 2009
falkjac : 185 : 5 ND 3.42, 5.19
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Respondents point to Wis. Admin. Code DWD 80.25(2), and assert that because the DVD entered into evidence by the applicant did not constitute scientific testing of the noise levels to which he was exposed in the employer's building, there is no credible evidence that the applicant was exposed to harmful levels of noise. However, the applicant's testimony provided a proper foundation for the DVD, which the commission found to be probative evidence. The applicant spoke in a normal tone of voice throughout the DVD, which assisted the commission in engaging the level of noise recorded. The applicant also noted that his work required him to regularly stand next to one of the loudest blowers recorded in respondents' noise testing studies, in order to clear clumps of fuel material that would clog the boiler's augur.(1)
As noted in Wis. Admin. Code § DWD 80.25(5), the diagnosis of hearing loss is based not only upon the results of otological and audiometric examinations, but also upon "the occupational and medical history." The applicant was exposed to high levels of noise in the employer's building, as verified by his credible testimony, by the medical history recounting such exposure, and by the DVD evidence. While the noise level studies provided by respondents constitute useful evidence, in weighing the results of those studies against the other evidence of record, the commission infers that they do not credibly refute the inference of exposure to harmful noise levels over years of employment with the employer. Neither do the studies credibly refute the medical causation opinion submitted by Dr. Hamp, which is based on credible evidence of harmful noise exposure.(2)
Finally, respondents point to Dr. Wiersma's opinion given in his Supplemental Report dated December 10, 2007, in which that physician indicated that because the applicant's audiograms do not uniformly show "a deep notch of (sic) around 3,000 to 4,000 hertz," the applicant's sensorineural hearing loss is "probably of a genetic type." However, the audiogram charting in evidence most commonly shows significant, accelerated loss at 2,000 to 4,000 hertz, which is roughly consistent with Dr. Wiersma's opinion concerning the typical audiogram presentation for occupational hearing loss. Dr. Wiersma's opinion of "probable" genetic hearing loss is not credible, given the evidence of prolonged and substantial noise exposure, together with Dr. Hamp's credible medical opinion describing the applicant's occupationally-induced hearing loss.
cc:
Attorney Scott W. Clark
Attorney Melissa A. Kirschner