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

PATRICK H EATON, Applicant

CITY OF MILWAUKEE POLICE DEPT, Employer

CITY OF MILWAUKEE, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996037112

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.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed August 19, 1999
eatonpa.wsd : 175 : 7 ND §5.19

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer contends in its petition for commission review that the administrative law judge erred in awarding the applicant eight percent permanent partial disability for bilateral hearing loss, and that the hearing loss should have been awarded according to the worker's compensation division worksheet dated October 8, 1997. However, Dr. Prudlow, who had treated the applicant for ten years, credibly noted in his WC-16-B that the applicant had hearing difficulty and findings of bilateral high frequency sensorineural deafness attributable to unprotected exposure to noise on the shooting range in the 1960's prior to the use of ear plugs or ear muffs, and to exposure to siren noise. Dr. Prudlow indicated that the applicant's bilateral sensorineural hearing loss as demonstrated by the audiogram on March 30, 1998 was unchanged from prior testing on March 28, 1996, September 14, 1995 and June 28, 1994 and February 6, 1992. Dr. Prudlow assessed the applicant with eight percent permanent partial disability due to his bilateral occupational hearing loss. Upon review of the medical evidence presented in the record the commission credits Dr. Prudlow's assessment.

The employer also contends that the employer should not be responsible for medical expenses awarded by the administrative law judge with a date of service prior to the date of injury which is February 26, 1996 the applicant's last date of work prior to retiring. The employer contends that liability does not exist in this case of an occupational hearing loss until the date of injury is established in accordance with Wis. Stat. § 102.555(4). However, pursuant to the commission's holding in Vanroy v. Thilmany Pulp and Paper Company, WC no. 96031330 (LIRC, June 5, 1997) the administrative law judge appropriately ordered the payment of medical expense for hearing aid and related expenses. The commission noted in Vanroy that the situation was analogous to cases covered by Wis. Stat. § 102.42(1) which allows the retroactive payment of medical expenses incurred before a worker knows he has an occupational disease. The commission noted that a worker cannot establish a date of injury without retiring or separating from employment, and that it seemed unfair and contrary to the evident purpose of Wis. Stat. § 102.42 to put the worker in the situation of choosing between quitting and receiving compensation for a hearing aid, and therefore the commission ordered the insurer to pay for a hearing aid purchased years earlier prior to the date of injury. The commission's order and rationale was affirmed in Brittenham v. Rural Mutual Ins. Co., WC no. 95018770 (LIRC, March 5, 1998). Similarly, the commission finds in this case that the administrative law judge appropriately ordered the payment of medical expense for a hearing aid and related expenses incurred prior to the date of injury to be paid by the employer related to his occupational hearing loss.

cc: ATTORNEY RICHARD J REITER
CLAIMS ADJUSTER SPECIALIST
CITY OF MILWAUKEE

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]