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

FRIEDA STERNBERG, Applicant

BROAN MFG CO INC, Employer

NATIONAL UNION FIRE INS CO OF PITTSB, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1999-025352

In May 1999, the applicant filed an application for hearing, claiming compensation for occupational deafness from exposure to harmful noise. A hearing was held before an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development in this matter on August 29, 2000.

At the time of the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage at the statutory maximum for the purposes of determining the compensation rate for permanent partial disability. At issue was whether the applicant sustained an injury in the form of hearing loss arising out of and occurring while performing services growing out of and incidental to her employment with the employer with a date of injury of August 31, 1994, if she gave sufficient legal notice of the injury to the employer, and the nature and extent of disability resulting from that injury. Also at issue was whether there had been bad faith or inexcusable delay in payment under Wis. Stat. § § 102.18(1)(bp) and 102.22(1).

The ALJ concluded that the applicant's claim was not barred by Wis. Stat. § 102.12. He also concluded that the applicant sustained an injury arising out of her employment with the employer, while performing services growing out of and incidental to that employment, resulting in an occupational hearing loss at 33.60 percent compared to occupational deafness in both ears. He awarded disability compensation at $9,943.26, as well as hearing aide expenses of $2,949. However, finding neither bad faith nor unreasonable delay in payment, the ALJ dismissed the applicant's claims under Wis. Stat. § § 102.18(1)(bp) and 102.22(1).

The respondent filed a petition for commission review. On appeal to the commission, the respondent states it has now conceded and paid workers compensation benefits totaling $4,566.14, including $700 in medical expenses and permanent partial disability of $3,866.14 for occupational deafness at 13.1 percent compared to total occupational deafness of both ears. Respondent's brief dated November 27, 2000, pages 4-5. The respondent's position on appeal is that its liability should be limited to that amount. For her part, the applicant contends the ALJ's disability award should be affirmed, but she re-asserts her claim of bad faith and unreasonable delay.

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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Facts.

The applicant was born in 1926. She worked for the employer for twenty-five years, from 1967 to her retirement in May 1991. During some period of her employment, she testified, she worked on the assembly line, which she described as not too noisy. She also worked in the compression room and the conveyor line, which she described as very noisy. She testified that the last years at the employer were the noisiest.

The employer brought in sound surveys from the area where the applicant worked at the time of her retirement. Exhibit 4, 5 and 6. These were done in 1981, 1990 and 1991, and they all showed noise levels at 77-84 decibels.

The noise surveys seem to indicate a pretty constant noise level in 1981 and 1991. However, although the synopsis of the hearing testimony does not reflect it, the respondent asserts as a fact in its brief that:

"Mr. Marofske [the employer's safety manager] testified that an overhead conveyor was actually installed near Applicant's work area sometime between 1984 and 1986. Noise levels after that time, therefore, would have been somewhat higher."

Respondent's November 27, 2000, brief, page 10.

Several audiograms have been submitted in this case to document the extent of the applicant's hearing loss:

• By Beltone Hearing Center in February 1988 (three years before the applicant retired); it shows a 13.1 percent loss. (Exhibit 3).
• By Beltone in March 1999 (eight years after the applicant's retirement); it shows what the employer represents is a 25.87 loss. (Exhibit 9).
• By the applicant's medical expert (Jennings) in May 1999; it shows a 33.60 percent loss (employer rates it at 35.2 percent) (Exhibit B).
• By the respondent's independent medical examiner (Dankle) in October 1999; it shows what the commission calculates to be a 34 percent loss (Exhibit 2). (1)
• By Beltone in April 2000; according to the employer it shows a 25.6 percent loss. (Exhibit 10).

The employer's independent medical examiner, S.K. Dankle, M.D., examined the applicant in October 1999. His earliest report is at exhibit 2, and dated November 22, 1999. The doctor states that the applicant told him her employment was exceptionally noisy, and that noise levels were measured at 79 to 81 dB. He noted no "employment audiograms" were done, but that he had Beltone (2) audiograms from February 1988 and March 1999. Dr. Dankle noted that the February 1988 audiogram showed an average decibel loss of 83 dB in the left ear and 39 dB in the right ear. The March 1999 audiogram showed substantial deterioration in comparison.

Dr. Dankle went on to explain that the February 1988 audiogram was the best representation of her hearing loss due to occupational noise exposure while working for the employer. He explained that typically the maximum loss occurred by the 15th to 20th year of employment, assuming stable noise exposure levels during that period of time. He noted also that occupational hearing loss does not continue to worsen after removal from the noisy environment, and opined that the worsening in the applicant's hearing after February 1988 is due to substantial otologic co-morbidity (which the commission assumes means normal aging.) Dr. Dankle thus rated a 13.1 percent loss related to employment, based on the February 1988 Beltone audiogram.

Dr. Dankle's certified report at exhibit 2, while it refers to the Beltone audiograms done in February 1988 and March 1999, does not include those audiograms as attachments. Instead, the doctor included an audiogram done in his office in October 1999 which showed loss, as the commission calculates it, at 34 percent. Nonetheless, it is the February 1988 audiogram done at Beltone that Dr. Dankle opines most reasonably rates the applicant's occupational hearing loss.

In a follow-up report in January 2000 (exhibit 1), Dr. Dankle noted his earlier opinion that the applicant did experience a noise-induced hearing loss related to employment with the employer. Dr. Dankle also reiterated his opinion that the degree of disability based on the audiometric results closest to her last day of work-this would be the February 1988 audiogram done at Beltone-showed a 13.1 percent loss. He went on to opine that the applicant had sustained substantial additional hearing loss thereafter which was not compensable.

Regarding the issue of the reasonable and necessary treatment expense, Dr. Dankle opined that the applicant's hearing loss at the time of her retirement from the employer was mild, and easily rehabilitated with a conventional hearing aid costing $600 to $800 dollars. He acknowledged that the applicant's current level of significantly worsened loss might require more technologically-sophisticated hearing aid instruments, but stated that if so the need for more sophisticated hearing aids would not be related to her employment.

The report from the applicant's medical expert, Richard P. Jennings, D.O., is at exhibit B. He examined the applicant on May 5, 1999, and opined she probably had bilateral sensorineural hearing loss. As noted above, an audiogram was done at his office on May 5, 1999; it shows a 33.6 percent hearing loss according to the department.

In July 2000, the applicant's attorney wrote to Dr. Jennings asking which better measured the applicant's occupational deafness: the February 1988 Beltone audiogram or Jennings' May 1999 audiogram. Dr. Jennings responded:

"The patient worked [for the employer] from 1967 till May 31, 1991. She retired at age 65. She was around a lot of noise at that time and I felt that given the history of noise exposure and certainly the length of time of this exposure, contributed significantly to this patient's hearing loss. The patient has no other known medical condition, which would contribute to this loss. The best measurement for determining hearing loss is the clinical audiogram done by a clinical audiologist in my office in 1999."

Exhibit D.

2. Recovery barred by Wis. Stat. § 102.12?

On appeal, it appears the respondent has abandoned its claim that the applicant's recovery is barred by Wis. Stat. § 102.12. While the respondent's petition seeks review of the ALJ's entire decision, its brief does not mention that issue, and indeed the employer now concedes its liability for at least some permanent partial disability and medical expense. Moreover, the 30-day notice of injury requirement under Wis. Stat. § 102.12 does not bar recovery if the employer was not misled by the failure of notice, while the requirement that an application be filed within 2 years does not bar recovery if the employer knew or should have known of the injury. In this case, the employer knew that employment in the area where the applicant worked was noisy; indeed, the employer commissioned several noise surveys during and shortly after the applicant's employment. As the ALJ pointed out, the supreme court applies "a less than strict interpretation of the requirement of notice in work[ers] compensation cases." (3)   Given that standard, the ALJ properly determined the applicant's recovery was not barred under Wis. Stat. § 102.12.

3. Causation and extent of disability.

As noted above, the respondent now concedes permanent partial disability for occupational hearing loss at 13.1 percent compared to total occupational deafness of both ears under Wis. Stat. § 102.555. Indeed, its own independent medical examiner, Dr. Dankle, twice opined that the applicant did experience noise-induced hearing loss related to her employment with the employer. See exhibits 1 and 2. The commission concludes from the respondent's concession, and the opinions of both experts, that the applicant sustained occupational deafness arising out of her employment with employer while performing services growing out of and incidental to that employment. The applicant's date of injury under Wis. Stat. § 102.55(4)(b) was in May 1991 when she retired from employer.

The primary issue now is whether the applicant is entitled to compensation for occupational deafness beyond the amount conceded and paid by the respondent under Dr. Dankle's rating. The respondent contends the audiogram done at Beltone in 1988, three years before the applicant retired, which shows a 13.1 percent compensable hearing loss should be used, as Dr. Dankle opined. The applicant contends that the audiogram done by Dr. Jennings in October 1999, eight years after she retired, which shows a 33.60 hearing loss should be used instead, as Dr. Jennings opined.

The commission, like the ALJ, concludes that the audiogram done as part of Dr. Jenning's examination in May 1999 should be used to determine the applicant's occupational hearing loss. However, the commission does not reject the February 1988 audiogram done at Beltone simply because it was done before the applicant's retirement. The commission acknowledges that, as the respondent points out in its brief, part of the reason the law tends to disfavor audiograms done while a worker is still exposed to noise under certain circumstances (4) is that 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, the effect of taking the February 1988 result while the applicant was still working, the respondent argues, would not be to the applicant's detriment but might actually have increased the loss beyond what it really was.

Nonetheless, the commission must still reject using the February 1988 test. First of all, it was done three years before the end of employment, not just a few months. More importantly, Dr. Dankle's conclusion that the February 1988 test was most accurate is based on his belief that the subsequent loss shown in the March 1999 audiogram was age-related. (5)   The additional loss could not have been work-related, Dankle opined, because the maximum occupational hearing loss occurs by the 15th to 20th year of employment, assuming stable noise exposure levels during that period of time. The twentieth year of employment in the applicant's case was 1987, the year before the February 1988 audiogram.

However, the commission cannot conclude that the applicant had "stable noise exposure" between 1967 and 1988. Both sides offer evidence tending to dispute that assumption. The applicant testified that the last years of her employment were the noisiest. The respondent in its brief asserts that the employer's supervisor testified that the work areas became noisier in 1984 or 1986 when an overhead conveyor was installed. In short, the stable noise exposure assumed by Dr. Dankle in opining that the increased hearing loss was age-related is not present. Indeed, increased noise exposure beginning in 1984 or 1986 offers a credible explanation for the increase in loss shown in the 1999 audiogram.

Dr. Jennings, of course, opined that the applicant's exposure to noise at work contributed greatly to her hearing loss, and that she had no other known condition which would contribute significantly to hearing loss. He went on to conclude that the May 1999 audiogram done at his office provided the best measurement of the applicant's hearing loss. Because Dr. Jennings' statement was made in direct response from the applicant's attorney about the best measurement of the applicant's occupational hearing loss, the commission infers that Dr. Jennings meant the May 1999 audiogram best measured the hearing loss caused by the applicant's employment with the employer.

The commission finds Dr. Jennings credible in this regard, and concludes that the May 1999 audiogram provides the best measurement of the applicant's occupational deafness. That audiogram, as indicated above, showed a 33.36 percent hearing loss compared to total occupational deafness in both ears.

4. Medical expense.

Dr. Jennings opined that, ‘in order to help improve her hearing to as best an extent as possible, [the applicant] would need amplification with the use of hearing aids.’ Exhibit D, August 9, 2000 report of Jennings. The commission has previously held that medical expenses may be recovered for hearing devices, even when purchased before the ‘date of injury’ in occupational deafness cases. (6)  In addition, while Dr. Dankle opined that the applicant’s occupational deafness could be reasonably treated with hearing aid devices costing only $600 to $800 a piece, he recognized that her current condition might well require ‘more technologically sophisticated hearing aid instruments.’ Exhibit 1, January 5, 2000 report of Dankle. Because the commission concludes that the hearing loss shown in the 1999 audiogram was due to occupational exposure, it concludes that the occupational exposure made the most costly hearing aids device necessary.

5. Bad faith.

While the applicant did not file a petition for commission review, she contends in her brief to the commission that the ALJ erred in dismissing her claims for bad faith and unreasonable delay under Wis. Stat. § § 102.18(1)(bp) and 102.22(1). The ALJ noted that the respondent paid compensation in accordance with the opinion of its independent medical examiner 26 days after a February 11, 2000 prehearing conference. The applicant contends that the period of delay was much longer, and began to run in November 1999 when IME Dankle opined that the applicant had a compensable hearing loss rated at 13.1 percent. At that point, the applicant contends, the respondent lacked a reasonable basis for denying benefits, and the defendant knew of or recklessly disregarded the lack of a reasonable basis. See North American Mechanical Inc. v. LIRC, 157 Wis. 2d 801, 807 (Ct. App., 1990).

In addressing this contention, the commission notes first that it was raised only in responsive briefs. The commission traditionally accords such arguments relatively less weight for the reasons explained in Deborah Polakowski v. Clearview Nursing Home, WC case no. 96028025 (LIRC, December 17, 1997). (7)   Beyond that, Wis. Admin. Code § DWD 80.70(2) defines bad faith as a denial without credible evidence that the claim is "fairly debatable." Although it was ultimately rejected, the commission concludes that the notice issue under Wis. Stat. § § 102.12 in this case made the claim fairly debatable, at least until the pre-hearing conference when the respondent either was ordered or agreed to pay the amounts in issue.

6. Award.

The commission therefore concludes that, as a result of her compensable work injury, the applicant sustained disability at 33.6 percent compared to occupational deafness in both ears. Using the 216-week base set out in Wis. Stat. § 102.555(4), the applicant is entitled to 72.58 weeks of permanent partial disability. At the weekly rate of $137, the statutory maximum for injuries occurring in 1991, this amount to a total of $9,943.46 in disability compensation, all of which has accrued. Of that amount, the respondent has previously conceded and paid $3,866.14 based on Dr. Dankle's rating, leaving a net amount due in permanent partial disability of $6,077.32.

The applicant approved an attorney fee, set under Wis. Stat. § 102.26 at twenty percent of the additional amount awarded under this decision. The fee is thus $1,215.46, and it shall be paid to the applicant's attorney within 30 days. The remaining amount, $4,861.86, shall be paid to the applicant within 30 days.

The commission further concludes that the applicant incurred reasonable and necessary out-of-pocket medical treatment expense to cure and relieve the effects of the work injury in the amount of $5,057. After subtracting the $700 the respondent employer previously paid toward medical expenses, the amount for which the respondent remains liable in medical expense is $4,357. That amount, too, shall be paid to the applicant within 30 days.

Because the applicant may need additional medical treatment or incur additional medical expense, this order is left interlocutory on the issue to permit compensation for additional medical expenses only. The order is final as to the extent of disability from the applicant's occupational injury. The claims made pursuant to Wis. Stat. § 102.18(1)(bp) and 102.22(1) are dismissed.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed.

Within 30 days from the date of this order, the respondent and its insurer shall pay all of the following:

1. To the applicant, Frieda Sternberg, four thousand eight hundred sixty- one dollars and eighty-six cents ($4,861.86) in disability compensation.

2. To the applicant's attorney, Douglas Johnson, one thousand two hundred fifteen dollars and forty-six cents ($1,215.46) in attorney fees.

3. To the applicant, four thousand three hundred fifty-seven dollars and no cents ($4,357.00) in out-of-pocket medical expense.

The applicant's claims under Wis. Stat. § § 102.18(1)(bp) and 102.22(1) are dismissed.

Jurisdiction is reserved for such further orders and awards as may be warranted.

Dated and mailed April 5, 2001                               [Note regarding April 30, 2001 amendment]
sternbe . wrr : 101 : aty  ND § 5.19  § 8.47  § 7.20

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not confer with the presiding ALJ in this case because it largely affirmed his findings and conclusions. The commission did modify the scope of the interlocutory order, but it did so based on the reports of the medical experts, particularly Dr. Jennings, which indicate that additional treatment in the form of hearing aids may be necessary but do not indicate that the applicant will sustain increased permanent disability from the work injury.

cc:
Attorney Douglas Q. Johnson
Attorney Juliette C. Luther

NOTE:  The decision as it is reproduced here incorporates amendments made to it by a commission order dated April 30, 2001.  That order was accompanied by the following explanation of the reasons for the amendment:

In its April 5, 2001 decision in this matter, the commission ordered the employer and its insurer (collectively, the respondent) to reimburse the applicant for out-of-pocket medical expenses for two hearing aids, one purchased in 1988 for $959 and one purchased in 1999 for $2,049. On April 9, 2001, the commission received a facsimile transmission from the applicant’s attorney alleging an oversight in the commission’s decision, based on the assertion that the applicant further purchased a third hearing aid in 2000, also for $2,049. The applicant’s attorney went on to request the commission to amend its order to order payment for the third hearing aid. The facsimile transmission indicated that courtesy copies were sent to respondent’s attorney. To date, the respondent has not responded to the applicant’s request for an amended order.

ALJ Phillips’s order also did not order payment for the third aid. While the applicant’s December 12, 2000, brief to the commission itself did not expressly seek modification of the ALJ’s order to provide for payment of the third hearing aid, the applicant did attach to her brief a copy of a September 25, 2000 letter to ALJ Phillips requesting that amendment. Once this matter was appealed to the commission, ALJ Phillips, of course, lost jurisdiction to amend his order as the applicant asked.

Respondent’s exhibit 10 documents the purchase of a right ear hearing aid costing $2,049 on April 6, 2000. It also appears from the ALJ’s handwritten notes in the file that the issues included claims for $9,943.40 in TTD, and $4,050 and $959 in hearing aids. From this the commission concludes that the treatment expense related to the third hearing aid was at issue at the hearing.

The commission is also satisfied the expense is justified by the record. The medical experts agree that the applicant has binaural hearing loss, that is, a loss in both ears. Moreover, the applicant’s expert, Richard P. Jennings, D.O., opined she would need application with the use of hearing aids to improve her hearing (exhibit D, August 9, 2000 letter of Jennings). The respondent’s expert admitted that it might be the case the applicant would require more technologically sophisticated hearing aid instruments (exhibit 1, January 8, 2000 letter from Dankle), though he of course opined the need for the more sophisticated aids would not be attributable to employment. Because, as the commission stated in its initial decision, the need for the more sophisticated aids is due work exposure and not aging, the respondent is liable for the more expensive aids for both ears.

In short, the commission’s failure to order payment of the third aid in its initial order was an oversight, and the commission accordingly amends its prior decision.

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Footnotes:

(1)( Back ) Using air conduction when bone conduction numbers unavailable for both ears at 2000 Hz and for the left ear at 3000 Hz.

(2)( Back ) Beltone Hearing Aid Centers sell hearing aids.

(3)( Back ) Kohler Co. v. ILHR Department, 42 Wis. 2d 396, 409 (1969).

(4)( Back ) See for example Wis. Stat. § 102.55(5) to (8).

(5)( Back ) The applicant also points to prior commission holdings to the effect that no deduction may be made for presbycusis (i.e., age-related hearing loss). Those holdings, of course, track a relatively recent administrative rule change, which now prohibits such reductions after having previously allowed them. Wis. Adm. Code § DWD 80.25(4). However, the presbycusis reduction cases deal with the situation where a doctor takes a particular post-employment audiogram, and then tries to apportion the loss shown in that audiogram between occupational loss and age-related loss. That is not the same as saying that a particular audiogram best measures the full extent of occupational loss, and that subsequent loss showing up in later must therefore be age-related. In this case, the question is whether the additional loss shown in the later audiograms is in fact age-related as Dr. Dankle opined.

(6)( Back ) Adrian Van Roy v. Thilmany Pulp & Paper Co., WC claim no. 96031330 (LIRC, June 5, 1997).

(7)( Back ) Robert Wilson v. Urban Artifacts Inc., WC claim no. 1998000072 (LIRC, February 24, 1999), aff'd sub nom. Wisconsin Worker's Compensation Uninsured Employer's Fund v. Urban Artifacts, Case no 99-2413 (Wis. Ct. App., May 9, 2000).

uploaded 2001/04/06