MICHAEL STANKE, Applicant
TEXTRON INC, Employer
TEXTRON INC, Insurer
In April 2009, the applicant filed an application for hearing seeking compensation for hearing loss from day-to-day noise exposure with an April 27, 2001 date of injury. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on October 7, 2009. Prior to the hearing, the self-insured employer conceded jurisdictional facts, an average weekly wage as of the date of injury at or above the statutory maximum, and a compensable hearing loss injury. At issue before the ALJ was the nature and extent of disability and the employer's liability for medical expenses. Additionally, the parties agreed that the employer had previously paid the applicant $5,427.27 in disability compensation.
On February 11, 2010, the ALJ issued his decision awarding additional compensation in the amount requested by the applicant. The employer filed a timely petition for commission review.
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 makes the following:
The applicant was born in 1956. He worked at Textron Inc., f/k/a Jacobson (Jacobson Textron), from February 1986 to April 2001 when the plant closed. The applicant did not have hearing loss when he started with the Jacobson Textron.
The applicant was a tool and die maker. The machines in the machines in the tool room where he worked--grinders and milling machines--were very noisy. He generally did not wear hearing protection.
While the applicant was working at Jacobson Textron, he also worked part-time as a tool and die marker for another employer, Neilson, for whom he had worked full-time since October 1985. He estimated he worked 40 to 50 hours a week at Jacobson Textron and 20-plus at Neilson.
After he was laid off by Jacobson Textron, the applicant resumed working full time at Neilson, where he worked in the EDM wire machine room. The EDM wire machine cuts hardened steel for dies, gauge or parts by electricity under water; it does not require grinding. Asked to rate the noise levels on a scale of 1-10, the applicant described Jacobson Textron as 5 to 8, Neilson in the machine shop at night as 2 to 6, and Neilson currently in the EDM wire room as 0 to 2.
During his employment at Jacobson Textron, the applicant underwent audiograms, apparently on an annual basis. The last one was done in late 2000, five months before he was laid off by Jacobson Textron in April 2001. Although it showed a binaural hearing loss of 17.6 percent, the applicant testified he did not notice any hearing loss at that time. However, in 2004-05, he began to notice he was having trouble hearing in conversation.
Since his layoff from Jacobson Textron in April 2001, the applicant has undergone two hearing tests. The first, done at Beltone on August 29, 2007, shows a 17.1 percent binaural hearing loss. (Exhibit 2.) The second, done at Wheaton Franciscan on August 4, 2008, shows a 36.8 percent binaural hearing loss, (Exhibit B.)
The applicant testified that the testing booth at Wheaton Franciscan was superior to the booth at Beltone. At least, he could not hear background noise at Wheaton Franciscan, but could at Beltone. He testified, too, that the doctor at Wheaton Franciscan examined his ears for blockage or wax buildup.
Following the audiograms, medical personnel at both Beltone and Wheaton Franciscan recommended hearing aids. The applicant obtained the aids three days before the hearing, and testified they helped, but took some getting used to. He did not get the hearing aids earlier as he could not afford them; apparently at this point Beltone has agreed to provide the aids on the assumption the self-insured employer will pay for them. Transcript, page 28.
Both sides, of course, offer expert medical opinion. The applicant relies on the opinion of the Wheaton Franciscan doctor, Terry C. Liu, M.D., who reported:
The patient told me that he has a long standing history of noise exposure. He was employed at Jacobson Textron from February 1985 to March 2001, during which time he was exposed to noise. The patient, apparently, had serial audiograms done at Jacobson Textron to monitor his hearing. The hearing did show deterioration over time in both ears. Initial thresholds were within the normal range, but deteriorated to an average of about 41 decibels. The patient also, apparently, had noise exposure at Nielson Machines as the e patient worked their part time, but apparently did use hearing protection at Nielson.
The patient denies any family history of hearing loss...
On examination, patient's ears were within normal limits bilaterally. The tympanic membranes were also within normal limits.
The patient seems to have a sensory neural hearing kiss affecting both ears that seems to be noise induced given the pattern of hearing loss. I do believe that his exposure to noise while he was working at Jacobson Textron was at least a material contributory causative factor in the onset or progression of his hearing loss.
The applicant probably would benefit from hearing aids and would likely require in-ear hearing aids.
The self-insured employer obtained a medical records review from Steven K. Dankle, M.D., whose initial report dated July 7, 2009 who went through the applicant's medical history and opines:
...the best estimate of maximum degree of hearing loss that can be attributed to Mr. Stanke's employment with Textron, Inc., would be based upon an audiogram that was conducted five months prior to the conclusion of a 16-year period of employment. It is certainly more accurate a representation of the maximum degree of hearing loss that would have been sustained as a result of occupational noise exposure during the term of employment with Textron, Inc., than would be an audiogram that was conducted seven years later. Mr. Stanke clearly has a significant high-frequency sensorineural hearing loss and would be an appropriate candidate for hearing aid amplification as a result of this loss.
Dr. Dankle filed a supplemental report on August 26, 2009, after reviewing serial audiograms conducted between 1986 and 2000. He reported:
...the initial audiogram available, which was obtained in March of 1985, reveals a noncompensable degree of hearing level with a four-frequency pure tone average of 18dB left and 15dB right. Subsequent audiograms revealed deterioration in Mr. Stanke's higher tones. You have also forwarded to me an audiogram that was done on August 29, 2007. This audiogram reveals a 17.1% of bilateral hearing impairment.
Based upon my review of these initial records, I would amend my previous opinion to state that [the] audiogram of August 29, 2007 provides the best estimate of the maximum level of hearing loss that might be attributable to Mr. Stanke's employment with Textron. This is because this is the best audiometric result obtained subsequent to his last day of work with Textron. Any additional hearing loss beyond this amount would be concluded to be unrelated to occupational exposure which concluded in 2001.
The occupational deafness statute provides in relevant part:
102.555 Occupational deafness; definitions
(1) In this section:
(a) "Noise" means sound capable of producing occupational deafness.
(b) "Noisy employment" means employment in the performance of which an employee is subjected to noise.
(c) "Occupational deafness" means permanent partial or permanent total loss of hearing of one or both ears due to prolonged exposure to noise in employment.
...
(4) Subject to the limitations provided in this section, there shall be payable for total occupational deafness of one ear, 36 weeks of compensation; for total occupational deafness of both ears, 216 weeks of compensation; and for partial occupational deafness, compensation shall bear such relation to that named in this section as disabilities bear to the maximum disabilities provided in this section. 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;216
(c) Termination of the employer-employee relationship; or
(d) Layoff, provided the layoff is complete and continuous for 6 months.
...
(6) The limitation provisions in this chapter shall control claims arising under this section. Such provisions shall run from the first date upon which claim may be filed, or from the date of subsequent death, provided that no claim shall accrue to any dependent unless an award has been issued or hearing tests have been conducted by a competent medical specialist after the employee has been removed from the noisy environment for a period of 2 months.
As set out above, both medical experts agree that the applicant sustained occupational hearing loss arising out of his employment with Jacobson Textron. The primary issue in this case is the extent of the disability from the compensable hearing loss. Based on the record before it, the commission credits Dr. Dankle's second opinion, and concludes the applicant sustained a 17.1 percent binaural loss.
The commission cannot accept the 36.8 percent loss based on Dr. Liu's opinion and the 2008 Wheaton Franciscan audiogram for two reasons. First, the commission cannot conclude that the much higher percentage of hearing loss shown in the 2008 Wheaton Franciscan audiogram, as compared to the 2007 Belton audiogram, can be explained by a quieter testing booth or a more thorough ear examination. The fact the booth was noisier at the Beltone testing facility would have, one assumes, artificially increased the loss shown in the Beltone audiogram, not lessened it. Additionally, the applicant testified that he received more thorough examination at Wheaton Franciscan because his ears were checked for blockage like earwax. Again, if outer ear or middle ear blockage like earwax was present at the time of the Beltone audiogram, but missed because of a less thorough examination, one would expect the Beltone audiogram result to overstate, not understate, hearing loss because it would include the conductive hearing loss caused by the blockage or earwax in addition to the sensorineural loss caused by the occupational noise exposure. In short, the aspects of the Wheaton Franciscan audiogram which the applicant testified were superior to the Beltone audiogram do not establish that the Beltone audiogram inaccurately understated the applicant's hearing loss when that audiogram was done in August 2007.
Second, the commission does not read Wis. Stat. § 102.555(8) to suggest that Jacobson Textron should be liable for deafness that was, or may have been, caused by occupational exposure caused after he left their employment because the statute says "an employer is liable for the entire occupational deafness to which his or her employment has contributed." Wisconsin Stat. § 102.555(4) sets out the guidelines for determining the date of injury. The statutory framework supports the conclusion that that an employer's liability for the entire occupational deafness to which his or her employment has contributed is determined based on employment exposure as of the date of injury. The statutory reference to "the entire occupational deafness to which the employment contributed" is intended to make it clear that an employer is liable for pre-existing loss, unless a reliable audiogram permitting the measurement of the pre-existing loss is put into evidence. It does not mean that an employer liable additional occupational hearing loss caused by additional injurious exposure with a subsequent employer after the date of injury.(1)
The applicant, of course, argues that there was no noisy exposure at Neilson after he left Jacobson Textron. Even so, the 2008 Wheaton Franciscan audiogram would show an unexplained increase in hearing loss well out of line with any of the earlier audiograms, including the 2007 Beltone audiogram done only a year earlier. As the commission has previously recognized,(2) and as the treatise included in the record in this case at exhibit 1(3) states, hearing loss injury caused by noise exposure is not progressive in nature after an employee is removed from the noisy employment. Jacobson Textron should not be liable for the increased loss showing up in 2008, whether it is simply unexplained or is due to subsequent exposure with another employer.
The final question is whether to use the late 2000 audiogram done while the applicant was still employed with Jacobson Textron (showing a 17.6 percent loss) or the 2007 audiogram done at Belton six years later (showing a 17.1 percent loss). The commission believes that Dr. Dankle correctly opines the applicant's hearing loss should be based on the 2007 Belton audiogram.
Superficially, it may not make seem to make sense to reject the 2008 Wheaton Franciscan audiogram but accept the 2007 Beltone audiogram, when both were done years after the employment at Jacobson Textron ended. However, the commission does not reject the 2008 Wheaton Franciscan audiogram not because of its age
per se, but because it shows an unexplained increase in hearing loss well out of line with any of the earlier audiograms, including the 2007 Beltone audiogram.
Further, the law tends to disfavor audiograms done while a worker is still
exposed to noise,(4) as such audiograms tend to overstate hearing loss. In other words, while occupational hearing loss is permanent, there is a short-term "bounce-back" period after the exposure to the noise ends when the hearing recovers somewhat. See
Herbert Hall v. Algoma Hardwoods, WC claim no. 92025988 (LIRC, October 31, 1994). Thus, under the facts of this case, 2000 audiogram can reasonably be viewed as overstating the loss due to occupational exposure as of the date of injury at Jacobson Textron.
Applying the 17.1 percent binaural loss to the 216-week base under Wis. Stat. § 102.55(8) results in 36.94 weeks of permanent disability compensation. At the weekly rate of $184, the statutory maximum for injuries in 2001, this results in an award of $6,796.22, all of which is accrued. The applicant approved the withholding of a fee, which is set at 20 percent, or $1,359.24. The applicant is entitled to the remainder $5,436.98.
The transcript of the hearing indicates that the self-insured employer had previously paid the applicant $5,427.27 in disability compensation, leaving $9.71 outstanding. The transcript also indicated the employer intended to pay his attorney $1,356.81 in fee, for which it is entitled a credit if such payment has been made.
The applicant has incurred reasonable and necessary medical expenses to cure and relieve the effect of the work injury, as documented in exhibit A, specifically, $288 from Wheaton Franciscan Medical Group, of which $71.23 has been adjusted from the bill and $216.77 remains outstanding. That amount shall be paid by the employer. The employer may, of course, take a credit for any payments it already made on this charge.
In addition, both Dr. Liu and Dr. Dankle opine that the applicant needs hearing aids, and the applicant's attorney requested "an interlocutory order for future hearing aid and necessary medical expenses." According, this order shall be left interlocutory to permit the payment of additional reasonable and necessary medical expenses as may arise in the future.
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 30 days from the date of this order the self-insured employer shall pay all of the following:
1. To the applicant, Michael Stanke, Nine dollars and seventy-one cents ($9.71) in disability compensation.
2. To the applicant's attorney, Daniel J. Kelley, One thousand three hundred fifty-six dollars and eighty-one cents ($1,356.81) in attorney fees.
3. To Wheaton Franciscan Medical Group, Two hundred sixteen dollars and seventy-seven cents ($216.77) in medical expense.
Jurisdiction is reserved for further orders and awards as are warranted.
Dated and mailed September 20, 2010
stankem . wrr : 101 : 1 ND6 6.20
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Because this issue turned solely on the credibility of the medical experts, neither of whom testified at the hearing, the commission did not confer with the presiding ALJ concerning witness credibility and demeanor. See Hermax Carpet Marts v. LIRC, 220 Wis. 2d 611, 617-18 (Ct. App. 1998).
cc:
Attorney Daniel J. Kelley
Attorney Robert P. Ochowicz
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