NANCY K BERRES, Applicant

LUBE DEVICES INC, Employer

HARTFORD CASUALTY INS CO, 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.

 
April 21, 2011
berrena.wsd:175:9 ND6 6.20

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

The employer contends in its petition for commission review the administrative law judge erred in determining the applicant was subjected to sufficient noise in the workplace to have caused at least some portion of her hearing loss resulting in a compensable hearing loss and permanent disability based upon the audiogram of March 16, 2010, resulting in an award of permanent disability of $23,389.08. The employer contends the administrative law judge should have credited the opinion of Dr. Long who prepared a report on behalf of the employer dated April 5, 2010. Dr. Long concluded that within a reasonable degree of medical certainty the applicant's noise exposure to industrial related noise while employed with the employer has not caused or materially or substantially contributed to her current hearing loss. Dr. Long stated the fact the applicant's hearing has been diminished at the onset of her employment suggests that she likely has either genetically inherited traits that make her at a higher risk of developing sensorineural hearing loss, in addition to underlying age-related hearing loss known as presbycusis.

The applicant testified to her noise exposure with the employer. The applicant testified that in her new area designated RC100 she worked around several other co-workers all using their own air hoses which were quite loud. The applicant testified that she could be using the air gun from a very short period of time to several hours at a time during the day to tighten bolts, and to loosen bolts and other functions. The applicant explained that most of the time there were two people using two separate air guns at the same time, as well as two separate air hoses which compounded the noise exposure.

Although the applicant was never personally examined by Dr. Horwitz the applicant testified that she spoke with Dr. Horwitz who prepared a report on her behalf and she explained her work environment to him. Dr. Horwitz stated in a letter dated January 22, 2010 the applicant is a 69-year-old assembly technician with the employer who worked through March 1, 2009 and was exposed to the noise of air hoses, air guns, the banging sound of stocking shelves and site plugs. Dr. Horwitz stated the applicant's audiologic data dating back only to 1997 reveals a very significant progressive bilateral, slightly asymmetrical, predominantly high frequency, neurosensory hearing loss that is quite consistent with her history of noise exposure and acoustic trauma in the workplace.

Dr. Horwitz noted the applicant has no history of military service and no history of hearing loss in her family, and no history of medical conditions that might have affected her hearing or noise exposure outside of the workplace. Dr. Horwitz opined to a reasonable degree of medical certainty the applicant's long exposure to noise on the job with the employer has either caused or was a material contributory causative factor contributing to her current hearing impairment. In addition, Dr. Horwitz stated in a letter dated June 4, 2010 he had thoroughly reviewed the work history, medical history, and audiologic data for the applicant and concluded the applicant sustained very substantial noise exposure with the employer from 1992 through March 2009.

Dr. Horwitz reiterated the applicant's audiologic data reveals a very significant progressive bilateral predominantly high frequency neurosensory hearing loss that is quite consistent with a history of noise exposure and acoustic trauma in the workplace. The commission credits Dr. Horwitz' assessment. The evidence indicates the applicant had prolonged exposure to loud noise in the workplace, and the commission credits Dr. Horwitz' assessment that the noise was sufficient to at least be a contributory causative factor in the nature and onset of her hearing loss. The evidence was sufficient to establish that Dr. Horwitz had an accurate and adequate history of the applicant's work for the employer. Although the administrative law judge did not credit all of the applicant's testimony of the severe nature of her exposure to noise in the workplace, he clearly found her credible that she in fact was consistently exposed to noise in the workplace sufficient to cause occupational deafness. The commission has found nothing to warrant overturning the administrative law judge's credibility determination.

The evidence did not indicate the applicant had any other noise exposure outside of the workplace which would have led to her sensorineural hearing loss. There was no evidence presented as a baseline for the applicant's hearing at the time she began work for the employer in 1992. The noise study performed by the employer in 2010 in Exhibit 2 was performed after the applicant had stopped working for the employer. Although the applicant may have been able to alleviate some of the hearing loss by wearing hearing protection, the employer takes the applicant as is. The evidence did not establish the applicant was required to wear hearing protection in the workplace. Based on the applicant's credible testimony of her exposure to noise in the workplace, and based on Dr. Horwitz' examination and audiologic data, and given Dr. Horwitz' assessment, the evidence was sufficient to establish the applicant's work for the employer was at least material contributory causative factor in the onset or progression of her hearing loss.

cc: Attorney Douglas Q. Johnson
Attorney Michael P. McFarlane

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