STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

MARTIN INDA, Applicant

D H BLATTNER & SONS INC, Employer

TIMME CONSTRUCTION, Employer

RELIANCE INS CO, Insurer

NORTH RIVER INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996013860

The employer, Timme Construction submitted a petition for commission review alleging error in the administrative law judge's Findings and Order dated January 26, 1998. The employer, D H Blattner and Sons, Inc., submitted a cross-petition and both Timme Construction and Blattner & Sons submitted briefs. At issue is whether at the time of the alleged injury the applicant was performing services growing out of and incidental to his employment, whether the injury arose out of his employment and the nature and extent of disability and liability for medical expenses.

The commission has carefully reviewed the entire record in this matter, and hereby sets aside the Finding and Order above and substitutes the following therefore:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant worked for more than 30 years operating heavy equipment in the construction industry including caterpillars and dump trucks. The applicant worked for Timme Construction Company from July 1992 to July 1994 as a heavy equipment operator and the work was very noisy and he did not wear ear protection. The applicant subsequently worked with Mann Brothers and E & H Earth Movers which was not as noisy prior to starting work with Blattner & Sons on June 27, 1995. The applicant worked with Blattner from June 27, 1995 until November 18, 1995 and operated heavy equipment such as bulldozers and Caterpillars. The applicant's hearing loss began before he started working with Timme Construction and it was a gradual hearing loss. The applicant had his last hearing test in the 1950's when he went into the military service.

The employer introduced evidence of a deposition taken from the applicant in November 1996. The applicant indicated in his deposition that when comparing his hearing of September 1994 as compared with December 1995 that his hearing was about the same. However, the applicant admitted in his deposition that it was a difficult thing to compare over time whether his hearing had worsened. The applicant also indicated that the D-10 bulldozer that he operated for Blattner was noisy and had a much bigger motor than other machines that he had operated, and even though it had air conditioning in an enclosed cab it was still noisy work. The applicant also engaged in recreational activities such as deer hunting with a rifle and also bow hunting. The applicant testified that his work with Blattner & Sons operating heavy equipment affected his hearing.

The applicant's treating physician, Dr. Glascoe, performed an audiogram in March 1996 which found significant hearing loss bilaterally. Dr. Glascoe attributed the applicant's hearing loss to an exposure to significant levels of noise while working for Blattner & Sons with a date of injury of November 1996. Dr. Glascoe opined that the applicant suffered 50 percent hearing loss along with his moderate severe high frequency hearing loss, and that he lost his ability to recognize about 40 percent of single syllable words read to him when he is not allowed to lip read.

Timme Construction submitted a report from Dr. Dunlap who stated that the applicant had worked in construction for over 30 years operating equipment that has been noisy enough to eventually cause a hearing loss in spite of newer equipment including an enclosed cab. Dr. Dunlap stated that he had reviewed the deposition in which the applicant stated that he was not aware of any subjective change in his hearing during his employment with Blattner & Sons, and Dr. Dunlap indicated that this did not establish that no damage occurred even during that relatively short period of time of employment with Blattner & Sons. Dr. Dunlap noted that the applicant's audiogram of March 2, 1996 suggested that he had significant problems in hearing normal conversation with a speech discrimination score of 40 percent and 32 percent in the right and left ears respectively. Dr. Dunlap stated that in the absence of a preemployment audiogram that documents hearing levels equal to the audiogram of March 2, 1996, the applicant has incurred a material progression of an industrial noise exposure hearing loss. Dr. Dunlap indicated in a subsequent letter dated December 19, 1997, that it was his medical opinion to a reasonable degree of medical certainty that the applicant's work for Blattner & Sons was a material contributory causative factor in the progression of his noise-induced hearing loss.

Blattner & Sons submitted a report from Dr. Blatnik who opined that the applicant has a sensenorial hearing loss in both ears which is consistent with noise-induced hearing loss. Dr. Blatnik concluded that the exposure with Blattner & Sons was not the cause of his hearing loss but rather the exposure to noise at Timme Construction Company was the cause of his hearing loss. The commission credits the reports from Dr. Glascoe and Dr. Dunlap that the applicant's work for Blattner & Sons was a material contributory causative factor in the progression of his noise induced hearing loss.

Blattner & Sons contend that the applicant did not meet the statutory requirement for the number of work days required for a claim for occupational hearing loss. Under Wis. Stat. § 102.555(7) no payment shall be made to an employe under this section unless the employe shall have worked in noisy employment for a total period of at least 90 days for the employer from whom the employe claims compensation. The commission interprets § 102.555(7) to require a total period of 90 calendar days of noisy employment which would include weekends, in order to meet the requirement. Nothing in the statute indicates that the legislature intended to limit the 90-day period to only working days. Timme Construction notes in its brief that the statute is silent on the way the 90 days is to be calculated and that calculating the total period of employment by the calendar day method would certainly be in accord with what the average person would likely infer from the question: How long were you employed by the employer? The commission agrees.

The statute refers to a total period of employment of at least 90 days, and not work days or some other classification. The evidence in this case, indicates that the applicant worked with Blattner & Sons from June 27, 1995 until November 18, 1995 a period of more than 90 days of noisy employment. Therefore, the applicant met the requirement of Wis. Stat. § 102.555(7) that he work in noisy employment for a total period of at least 90 days for the employer. Further, the commission finds that Blattner & Sons is responsible for all of the hearing loss alleged by the applicant as the applicant's last employer responsible for the hearing loss. There is no evidence of any prior audiogram to establish a preexisting hearing loss. Dr. Dunlap credibly opined that the applicant's work for Blattner & Sons was a material contributory causative factor in the onset of his occupational hearing loss. Further the fact that the applicant admitted that he had some hearing loss while working for Timme Construction can not form a basis to apportion the amount to be paid for an occupational hearing loss. The commission did not find Dr. Blatnik's opinion that the applicant's hearing loss was only attributable to his work for Timme Construction to be credible. Since Blattner & Sons was the applicant's last employer and his work for Blattner & Sons was a material contributory causative factor in the onset of his hearing loss, and there is no audiogram to establish previous deafness, Blattner & Sons, Incorporated is responsible for all of the applicant's hearing loss. Blattner & Sons, Incorporated and it's insurer are responsible for the applicant's occupational hearing loss as well as hearing aide expense in the amount of $1,250.

NOW, THEREFORE this

ORDER

The Findings and Order of the administrative law judge are set aside and the commission's Findings and Order substituted therefore. Within 30 days from date, Blattner & Sons, Incorporated and Reliance Insurance Company shall pay to the applicant as compensation for his hearing loss, Thirteen thousand six hundred two dollars and sixteen cents ($13,602.16); to Local 139 of the Operating Engineer Health Benefit Fund, One thousand eighty-one dollars ($1081.00) and to the applicant, One hundred sixty-nine dollars ($169.00) as reimbursement for medical supplies.

Dated and mailed: June 25, 1998
indamar.wpr : 175 : 8  ND § 5.19

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge on the demeanor and credibility of witnesses. Credibility of witnesses was not an issue in the commission's decision. Rather, the commission disagreed with the administrative law judge's interpretation of Wis. Stat. § 102.555(7) and the authority to apportion the benefits between the two parties in this case.

cc: ATTORNEY DAVID A PIEHLER
TERWILLIGER WAKEEN PIEHLER & CONWAY SC

ATTORNEY LISA F KINNEY
COUSINEAU MC GUIRE & ANDERSON

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