DENNIS WIEBE, Applicant

DEPT OF ADMINISTRATION, Employer

DEPT OF ADMINISTRATION, 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 July 16, 2006
wiebede : 185 : 5 ND ? 5.19

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

Respondents emphasize Dr. Nordstrom's opinion that the rapid progression of hearing loss the applicant sustained between the years 1998 and 2008 was "inconsistent with noise exposure." Dr. Nordstrom explained that he believed the noise level data indicated the applicant had not been exposed to any prolonged, significant noise; that when the applicant was exposed to loud levels of noise he utilized protective hearing devices; and that the majority of hearing loss due to noise exposure "...occurs in the first approximately 15 years."

Dr. Nordstrom did not provide an alternative explanation for the applicant's bilateral sensorineural hearing loss, except to refer to another physician's vague January 2006 clinical reference to the applicant having "...had significant noise exposure, particularly in his younger years." Dr. Nordstrom also referred to the fact that the applicant's parents both wore hearing aides late in life, and opined "...so part of this may be genetic."

There are a number of difficulties with Dr. Nordstrom's opinion. First, even assuming there was a nonwork-related factor or factors that contributed to the applicant's hearing loss, if the work-related exposure constituted a substantial contributory causative factor to such loss, the entire loss is compensable.(1) Dr. Horwitz credibly opined that the predominately high frequency, neurosensory hearing loss most marked at 4,000 Hz, with some recovery at 6,000 and 8,000 Hz, was quite consistent with the applicant's history of noise exposure and acoustic trauma in the workplace. The applicant was exposed to loud noise at the employer's workplace over a period of approximately 15 years, and the late-in-life hearing loss that the applicant's parents experienced does not in itself credibly establish any pathological or hereditary condition. Dr. Horwitz additionally noted that the applicant did not serve in the military, has no history of medical conditions that might have affected his hearing, and has no history of significant recreational noise exposure.

Based on the credible, unrebutted testimony given by the applicant and his coworker, Robert Staley, it is evident that contrary to Dr. Nordstrom's understanding, the applicant was consistently exposed to very loud noise in his employment with the employer. As noted by the administrative law judge, respondents submitted noise surveys of the employer's Heat and Power Plant and Powerhouse, but not of the General Executive Facility buildings where the applicant spent the vast majority of his time. Additionally, the applicant credibly testified that nobody at the employer's workplace suggested or developed a program for utilizing hearing protection, and that he and his coworkers eventually requested protective devices on their own through the employer's purchasing agent. The applicant further testified that after he obtained earmuffs, he wore them as often as he could, but there were times where he could not wear them. Dr. Nordstrom appears to have been under the misapprehension that the applicant wore earmuffs throughout his career with the employer, and always when exposed to loud noise at the employer's workplace.

As previously noted, Dr. Nordstrom did not provide a credible explanation for the applicant's hearing loss that would not include workplace exposure. Dr. Horwitz credibly opined that the workplace exposure with the employer was causative. In this context, it is also significant that Wis. Admin. Code ch. DWD 80.25(4), provides that no deduction from measured hearing impairment is to be made for presbycusis.(2) Therefore, even assuming the applicant sustained a degree of natural hearing loss attributable to presbycusis, such loss would not be deductible from his compensable hearing loss.

In summary, the applicant presented credible and substantial evidence demonstrating that he sustained an occupational hearing loss arising out of and in the course of his employment with the employer.

cc: Attorney Douglas Johnson
Attorney David A. Hart

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(1)( Back ) See White v. LIRC, 2000 WI App 244, ? 26, 239 Wis. 2d 505, 620 N.W.2d 422; Universal Foundry Co. v. DILHR, 82 Wis. 2d 479, 487-88 n. 5, 263 N.W.2d 172 (1978). An exception to this rule of law is found in Wis. Stat. ? 102.555(8), which provides for deduction of previous hearing loss established by a hearing test or other competent evidence, but no such previous hearing loss was credibly established in the applicant's case.

(2)( Back ) Presbycusis is defined as progressive, bilaterally symmetrical perceptive hearing loss with age. Dorland's Illustrated Medical Dictionary, Twenty-ninth Edition (1994).  

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