HOWARD PELOT, Applicant
CONSOLIDATED PAPERS INC, Employer
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.
Dated and mailed December 20, 2001
pelotho . wsd : 101 : 8 ND § 5.19 § 8.28
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
1. Facts and posture.
The applicant claims compensation for occupational deafness. The employer and its insurer (collectively, the respondent) do not dispute that the applicant, who worked in the employer's paper mill for 40 years, has occupational deafness. Indeed, the respondents conceded and paid a 12 percent unilateral hearing loss totaling $794.88 based on an audiogram done in 1998. The applicant seeks additional compensation for a bilateral loss at 29.33 percent, amounting to about $11,000 in additional compensation based on audiograms done in 2000 and 2001.
The applicant's hearing loss increased, dramatically, between his 1998 and 1999 audiograms. The applicant's medical expert bases his rating of the occupational hearing loss on audiograms done after the applicant ended his employment in 2000. The respondent's expert opines that the rating for occupational loss should be based on the 1998 audiogram, before the dramatic increase in loss occurred.
Specifically, the applicant's expert, Michael Savage, M.D., saw the applicant in August 2000, shortly after he retired. He marked the "occupational disease" causation box, and attached a written report with the following history:
"He has a long history of noise exposure at work, and for years has had high-pitched constant tinnitus in both ears. He feels his hearing has deteriorated over the years and that it is worse in the left side than the right."
Exhibit A, note of Savage dated August 21, 2000.
Dr. Savage's diagnostic impression was sensorineural hearing loss of noise exposure. He ordered a hearing test that showed moderate to severe loss bilaterally.
The respondent referred the applicant to another doctor, James A. Hamp, M.D., who noted that a comparison of the older audiograms with the newer ones showed "that he has had a loss added on to a chronic high frequency loss primarily new in the lower frequencies in both ears." (1) Dr. Hamp believed that overall, the applicant's hearing loss was classic as severe with high frequency emphasis and significantly reduced speech discrimination in the left ear. He reported:
"I think it is obvious that this gentleman has had noise exposure while involved at Consolidated Paper and I don't think there is any debate about that since he does not have loud avocational exposure and has no other medical disease to explain past or this more recent hearing loss that is at least obvious to me."
Exhibit B, January 31, 2001, report of letter from Hamp to Michelle Bean.
Nonetheless, Dr. Hamp went on to opine:
"I think his change, since 1998, does not appear to be related to his exposure at Consolidated and are from some other causation; perhaps aging or earlier degeneration of the internal hearing system. I would base my calculations of his projected loss and compensation based from either the 1997 or the 1998 audiogram."
Exhibit B, January 31, 2001, report of letter from Hamp to Michelle Bean. Dr. Hamp substantially restated these opinions in Exhibit 3, a narrative report attached to his form practitioner's report.
The respondent also offers "learned treatises," particularly the article "Occupational Noise-Induced Hearing Loss" a position statement of the American College of Occupational and Environmental Medicine available on the Internet at www.acoem.org/paprguid/papers/nihl.htm (the Position Statement.) This document makes several seemingly relevant points concerning occupational noise induced hearing loss:
The ALJ awarded compensation for the applicant's hearing loss based on Dr. Savage's opinion. The respondent appeals.
2. Discussion.
In her decision, the ALJ said of the articles offered by the respondent to supplement the expert medical opinion: "articles such as these, that are not relied upon by treating or examining physicians nor described by them in their reports, are of limited probative value" though they provide general background information. Of course, it is also true that a "learned treatise" may provide a basis for finding legitimate doubt about a claim, apparently even in the absence of oral or written testimony from a medical expert about how the statements in the treatise apply in a particular case. Leist v. LIRC, 183 Wis. 2d 450 (1994). (2) However, in this case, the ALJ quite appropriately concluded the articles in this case have little probative value.
In its brief, the respondent emphasizes the statements from the articles that occupational noise induced hearing loss is almost always bilateral, with similar audiometric patterns, and indeed cites another source saying with continuous noise exposure one should not expect any asymmetry at all. In this case, of course, the applicant's early hearing loss was unilateral, not bilateral, or at least always worse in the left ear than the right. It has never been symmetric, even in 1998 or earlier. Nonetheless, both Dr. Savage and Dr. Hamp concluded the applicant had noise-induced hearing loss. In this, then, the opinions of the actual experts disagree with the conclusion a layperson might draw from the learned treatises.
The respondent also emphasizes the statement from the Position Statement that noise-induced loss almost never produces a profound hearing loss, and that usually, low-frequency limits are about 40 dB and high frequency limits about 75 dB. Here the low-frequency (500Hz and 1000Hz) loss shown in the January 30, 2001, audiogram are 35dB and 35dB in the right ear and 45dB and 50 dB in the left ear. The high-frequency (2000Hz and 3000Hz) loss is 55dB and 60 dB in the right ear and 80 dB in the left ear. These losses were characterized by Dr. Savage as "moderate to severe," not "profound." Nor do the losses deviate greatly from the about 40 dB and 75 dB limits set out in the Position Statement.
The respondent also emphasizes the statement that as the hearing threshold increases the rate of loss decreases. Here, of course, the rate of loss dramatically increased in 1999-2000, well after the hearing threshold had increased. Of course, the Position Statement also states that hearing loss at 3000 Hz, 4000 Hz and 6000 Hz reaches a maximal level of loss after 10 to 15 years, assuming stable exposure conditions. Here the only testimony, that of the applicant, indicates that the workplace grew progressively noisy as time passed, including an increase in noise levels in the last two years. Presumably, the increased loss, as well as the temporary increase in rate of loss, could be explained by the fact the exposure conditions were not stable.
In conjunction with the statement from the treatise that the losses at the 3000 Hz to 6000 Hz part of the frequency range usually reaches a maximal level after 10 to 15 years, the commission must also note that the Position Statement states
"The earliest damage to the inner ears reflects a loss at 3000, 4000, and 6000 Hz. There is always far more loss at 3000, 4000, and 6000 Hz than at 500, 1000, and 2000 Hz. The greatest loss usually occurs at 4000 Hz. The higher and lower frequencies take longer to be affected than the 3000 to 6000 Hz range."
In this case, the hearing loss, including the increased loss in the low end of the frequency range in 1999 and 2000 seems to follow the classic pattern. There is more loss at 3000 Hz than at 500 Hz and 1000 Hz (and in most cases than at 2000 Hz). One can conclude from the audiograms back to 1974 (the reports themselves at Exhibit 2 include the highest part of the range (above 6000 Hz), that it indeed took longer for the low and high end of the range to be affected than the middle part of the range.
The commission appreciates that these conclusions from the cited articles are not necessarily those a medical expert would draw. But they are conclusions that may reasonably be drawn, and they oppose the conclusions for which the respondent offers the articles. The commission thus agrees with the ALJ that the articles have relatively little probative value in this case.
Setting the articles aside, the applicant's expert, Dr. Savage, is not troubled by the increased loss in 1999-2000. The respondent's expert, Dr. Hamp, is troubled, but does not really explain why. Rather, he simply concludes that the 1998 audiograms, rather than the more recent 1999-2000 audiograms showing increased loss, should be used. On the other hand he also suggests the noise exposure at work could also account for the more recent loss:
"I think it is obvious that this gentleman has had noise exposure while involved at Consolidated Paper and I don't think there is any debate about that since he does not have loud avocational exposure and has no other medical disease to explain past or this more recent hearing loss that is at least obvious to me."
Exhibit B, January 31, 2001, report of letter from Hamp to Michelle Bean.
The commission acknowledges that the applicant has the burden of proof, and that the commission must deny benefits if there is a legitimate doubt as to compensability. Leist, supra, at 183 Wis. 2d 457-58. Here, however, the commission declines to find legitimate doubt on the failure of the applicant's expert to respond to an unexplained concern (the increased loss in 1998 and 1999) identified by the respondent's expert. The commission, therefore, concludes that the audiograms performed after the applicant left his employment with the employer provide the best measure of the applicant's occupational hearing loss, and affirms the ALJ's decision.
cc:
Attorney Daniel Schoshinski
Attorney Nelida Cortes
Attorney Philip Lehner
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(1)( Back ) In the narrative report at Exhibit B, Dr. Hamp restates this a little more clearly: Our enclosed audiogram confirms a severe hearing loss in both ears and when compared to your audiograms, it does appear that he has had a loss added on to a chronic high frequency loss, primarily new in the lower frequencies in both ears.
(2)( Back ) Where the court states: "We do not go so far as the court of appeals, however, and require LIRC to provide countervailing medical expert opinions to support a legitimate doubt.. Or, LIRC could have cited to medical text to support its conclusion that someone with a herniated disc would exhibit different symptoms and behavior." Id., at 183 Wis. 2d 461-62.
uploaded 2002/01/02