VERNON LEE, Applicant
A TO Z, Employer
UNITED WISCONSIN, Insurer
The applicant filed a hearing application in December 2007 seeking compensation for occupational hearing loss. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on July 22, 2008.
Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, an average weekly wage at the statutory maximum for the calculation of permanent partial disability compensation, and a compensable bilateral hearing loss arising out of the applicant's employment with the employer based on a date of injury of April 1, 2007 (the applicant's last day of work.) The respondent also conceded and paid permanent partial disability compensation (including the fee of the applicant's attorney) at $13,978.22 for a 24.7 percent binaural hearing loss. At issue is the extent of disability beyond that conceded.
The commission issued its decision in this matter on April 30, 2009. On May 21, 2009, the respondent moved the commission to reconsider its decision, to which the applicant responded by brief dated May 22, 2009. On May 27, 2009, the commission set aside its April 30, 2009 decision pursuant to Wis. Stat. § 102.18(4)(b).
Upon reconsideration, and having again reviewed the evidence submitted to the ALJ, the commission makes the following:
The applicant was born on October 29, 1939. He was employed by Marek Group, also known as A to Z Printing, from August 1994 to April 2007, when he retired. He worked as a lead man in the laminating department, where he "set up equipment, maintained quality, and trained operators." The job was noisy, and the respondent concedes some degree of occupational hearing loss caused by his employment.
At issue here is whether the respondent may take a deduction for the applicant's pre-employment hearing loss. The applicant worked for Western Printing/Golden Books from 1958 to 1970, and then again from 1986 to 1994. He worked at Wisconsin Screen from 1970 to 1986. Both were noisy employment. Indeed, the applicant acknowledged having some hearing loss before beginning work at Marek Group, though "not as much as I have now."
The applicant had a hearing test done on June 25, 1991, which would have been while employed at Western Printing and before he started working for the employer. The applicant testified he had worked the day before the hearing test, running a mounting machine. More specifically, the test was Tuesday morning at 9 a.m., and the applicant had last worked from 11 p.m. Sunday evening to 7 a.m. Monday morning. He recalled the test as being short and "not much detail" in comparison to testing he has had more recently. It appears from exhibit 2 that the audiogram was done as part of a physical he had that day, and that he told the doctor whom he saw that he had some hearing loss for years. The doctor's diagnostic impression included "acoustic trauma."
The applicant then began working for the employer in 1994. After retiring in April 2007, the applicant underwent a second audiogram done on August 24, 2007. Audiograms were also done as part of the examinations by the applicant's and respondent's medical experts, respectively, on September 4, 2007 and May 29, 2008.
In January 2008, based on its reading of the September 4, 2007 audiogram alone, the department initially calculated the respondent's liability for the applicant's binaural hearing loss at 59.47 percent (or 128.45 weeks at $262 per week totaling $33,653.90).
However, based on its reading of the June 25, 1991 audiogram results and the September 4, 2007 audiogram results--and subtracting the pre-existing loss shown in the 1991 audiogram--the department recalculated the respondent's liability for the applicant's occupational hearing loss at 14.94 percent (or 32.27 weeks at $262 per week tolling $8,454.74). The administrative law judge, finding the 1991 audiogram was competent evidence of pre-existing deafness, entered an order awarding compensation in accordance with the department's recalculation.
In its April 2009 decision, the commission reversed the ALJ, and held the respondent liable for the 59.47 percent binaural loss ($33,653.90) originally calculated by the department. As noted above, the commission subsequently set aside that decision upon the respondent's request for reconsideration.
The relevant statutes and administrative code provisions provide:
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.
DWD 80.25 Loss of hearing. The department adopts the following standards for the determination and evaluation of noise induced hearing loss, other occupational hearing loss and accidental hearing loss:
...
(3) MEASURE OF HEARING ACUITY. The use of pure tone air and bone conduction audiometry performed under proper testing conditions is recommended for establishing the hearing acuity of workers. The audiometer should be one which meets the specifications of ANSI standard 53.6-1969 (4). The audiometer should be periodically calibrated. Preemployment records should include a satisfactory personal and occupational history as they may pertain to hearing status. Otological examination should be made where indicated.
(4) FORMULA FOR MEASURING HEARING IMPAIRMENT. For the purpose of determining the hearing impairment, pure tone air conduction audiometry is used, measuring all frequencies between 500 and 6,000 Hz. This formula uses the average of the 4 speech frequencies of 500, 1,000, 2,000, and 3,000 Hz. Audiometric measurement for these 4 frequencies averaging 30 decibels or less on the ANSI calibration does not constitute any practical hearing impairment. A table for evaluating hearing impairment based upon the average readings of these 4 frequencies follows below. No deduction is made for presbycusis.
(5) DIAGNOSIS AND EVALUATION. The diagnosis of occupational hearing loss is based upon the occupational and medical history, the results of the otological and audiometric examinations and their evaluation.
While Wis. Stat. § 102.555(8) is written in the passive voice--"unless previous deafness is established"--only the employer or insurer would have any interest in establishing previous deafness. It is reasonable, therefore, to require the respondent to offer a reliable test showing previous hearing loss rather than putting the burden on the applicant to prove the test offered by the employer is incompetent or unreliable.
In another case involving a pre-employment audiogram, the commission concluded:
It might seem unfair to place the liability for the applicant's hearing loss on the employer. However, the general rule in occupational disease cases is the entire amount of liability for an occupational disease is imposed on the last employer whose employment contributed to the disease, even if other employment contributed to the progression of the industrial disease, because "the law of averages will equalize burdens imposed by this act among the employers and the compensation insurers of this state." Employers Mutual Life Ins. Co. v. McCormick, 195 Wis. 410, 414-16 (1928); Travelers Ins. Co. v. ILHR Department, 85 Wis. 2d 776, 784 (Ct. App., 1978). This general rule is recognized in the very opening sentence of sec. 102.555(8), Stats., which states that "an employer is liable for the entire occupational deafness to which his or her employment has contributed," unless he or she can establish previous deafness by a hearing test or other competent evidence. Again, the employer in this case has failed to provide a reliable test or other evidence showing previous deafness.
Herbert Hall v. Algoma Hardwoods Inc., WC Claim No. 92092988 (LIRC, October 31, 1994)(1)
In this case, the applicant asserted that the 1991 audiogram is not competent evidence of the applicant's preexisting hearing loss. The respondent, for its part, asserted the 1991 audiogram is competent and may be used as the basis for a deduction for pre-existing deafness under Wis. Stat. § 102.555(8). The commission rejected that assertion in its April 30, 2009 decision because the audiogram did not include hearing level measurements at the 3000 Hz frequency and because it declined to interpolate a reading at that level based on the measurements at the 2000 Hz and 4000 Hz frequencies. In its April 30, 2009 decision, the commission explained:
The administrative rule governing hearing loss contemplates a measurement at 3000 Hz. The respondent asserts in its brief that the department averages the 2000 Hz and 4000 Hz numbers in such situations, but as the applicant points out there is no statute, rule or other written document verifying this policy. Further, even assuming the department follows the practice of averaging or interpolating numbers from incomplete audiograms in cases where no one challenges the accuracy of the audiogram, that does not mean that practice must govern when a party challenges the audiogram.
The commission declined to interpolate a missing hearing level measurement decibel level at 3000 Hz in Calderon v. Brand Insulation, WC Claim No. 95013880 (LIRC, April 30, 1996). Further, in this case, there is no expert medical evidence to establish that the department's practice of interpolating or averaging hearing level measurements between frequencies to determine a "missing" measurement is reasonable. While the respondent's expert, Dr. Nordstrom, did opine that the 1991 audiogram showed a pre-existing loss, he came up with an entirely different, and lower, percentage of pre-existing loss than that determined by the department.
On reconsideration, the respondent contends that, even assuming no measurable hearing loss in either ear at the 3000 Hz frequency, the 1991 audiogram still establishes a measurable pre-existing loss based on the hearing levels as demonstrated at the other specified frequencies. Indeed, it calculates 48.8 percent binaural loss on that basis.
On reconsideration, the commission again concludes that the record does not support the interpolation of a hearing level measurement at 3000 Hz based on the measurements at the 2000 Hz and 4000 Hz frequencies in the 1991 audiogram. However, the commission declines to reach the merits of the respondent's assertion on reconsideration that a deduction for pre-existing hearing loss should be allowed based on the 1991 audiogram by assuming no measurable hearing loss in either ear at the 3000 Hz frequency.
The commission finds that a 48.8 percent binaural loss suggested by the respondent on reconsideration represents the minimum for which the respondent is liable on the applicant's hearing loss claim. The 48.8 percent loss applied to the 216-week base for total deafness under Wis. Stat. § 102.555(4), results in 105.408 weeks of compensation, totaling $27,616.90. Prior to the hearing, the respondent conceded a 24.7 percent for binaural hearing loss, or 53.352 weeks of permanent partial disability totaling $13,978.22. The additional amount of disability compensation awarded per this order beyond that previously conceded is thus $13,638.67, all of which is now accrued.
The applicant's attorney is entitled under Wis. Stat. § 102.26 to the direct payment of an attorney fee under this order set at 20 percent of the additional amounts awarded. The fee is $2,727.73 (0.20 times $13,638.67). That amount, plus costs of $189.82 shall be deducted from the applicant's award and paid to his attorney within 30 days. The amount payable to the applicant within 30 days is $10,721.12, which equals the additional amounts awarded ($13,638.67) less the attorney fees ($2,727.73) and costs ($189.82).
The commission declines to issue at this time a final order finding that the respondent is entitled to a deduction for pre-existing hearing loss. Fairness and considerations of due process require that the Work Injury Supplemental Benefit Fund (the Fund), which may be liable for any pre-existing hearing loss established by the respondent,(2) be heard on the issue of the competency of the 1991 audiogram.
This matter is therefore remanded to the department:
(1) for further hearing to allow the impleader and participation of the Fund, and
(2) for an order that deals with claims the applicant may have against:
(a) the Fund for compensation for pre-existing hearing loss, and
(b) the respondent, for additional compensation for hearing loss beyond that awarded under this order.
Because the medical experts agree that the applicant would benefit from hearing aids, this order shall be left interlocutory to permit further orders and awards for medical expenses.
NOW, THEREFORE, the Labor and Industry Review Commission makes this:
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part.
Within thirty days, the employer and its insurer shall pay all of the following:
1. To the applicant, Vernon Lee, Ten thousand seven hundred twenty-one dollars and twelve cents ($10,721.12) in disability compensation.
2. To the applicant's attorney, Daniel J. Kelley, Two thousand seven hundred twenty-seven dollars and seventy-three cents ($2,727.73) in attorney fees and One hundred eighty-nine dollars and eighty-two cents ($189.82) in costs.
This matter is remanded to the Department of Workforce Development, Division of Worker's Compensation for further proceedings as set out in this decision.
Dated and mailed lee
leeve . wrr : 101 : 1 ND ? 5.19
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
cc:
Attorney Daniel Kelley
Attorney Jennifer Barwinski
Ms. Abby Butler
Mr. Lowell Nass
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