BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

ANTHONY JAMES ALBERGO, Applicant

AMERICAN MOTORS CORP., Employer

WORKER'S COMPENSATION DECISION
Claim No. 88-070146

Pursuant to the timely petition for review filed by the applicant in the above-captioned matter, the Commission has considered the petition and all relief requested. The Commission has reviewed the applicable records and evidence and finds that the Administrative Law Judge's findings and order are supported thereby. The Commission therefore adopts the findings and order of the Administrative Law Judge as its own.

NOW, THEREFORE, the Labor and Industry Review Commission does

ORDER

That the findings and order of the Administrative Law Judge are hereby affirmed.

Dated and mailed June 7, 1991
ND § 5.19

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner


MEMORANDUM OPINION

The medical literature is clear that bone conduction audiometry is more accurate than air conduction audiometry in measuring sensorineural hearing loss, when a mixed (sensorineural and conductive) hearing loss is present. Dr. Chrzan credibly testified that the applicant's hearing loss was mixed. Therefore, the Commission concluded that the Administrative Law Judge properly inferred that the bone conduction audiogram performed in Dr. Chrzan's office was the appropriate audiogram on which to rely. Dr. Yale's bone conduction audiogram also showed no compensable hearing loss.

Chapter Ind 80.25 (4) of the Wisconsin Administrative Code, which calls for the use of air conduction audiometry in determining hearing impairment, is interpreted by the Commission to be applicable to cases of purely sensorineural hearing loss. In such cases, air conduction audiometry is presumed to be equally as accurate as bone conduction audiometry. To interpret the Administrative Code rule otherwise would lead to the allowance of compensation for conductive hearing loss not arising out of or incidental to noisy employment, which would be contrary to the provisions of section 102.555, Stats. An administrative rule in conflict with a statute is invalid. DILHR v. LIRC, 155 Wis. 2d 256, 268, 456 N.W.2d 162 (Ct. App. 1990).

cc: 
Daniel J. Stangle, Attorney
Michael H. Gillick, Attorney

185 - CD8855

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