JAMES HARTL, Applicant

ALFA LAVAL INC, Employer

LIBERTY MUTUAL FIRE INSURANCE CO, Insurer

The applicant seeks compensation for occupational hearing loss and for associated treatment expense, including hearing aids. An administrative law judge for the Worker's Compensation Division of the Department of Workforce Development heard the applicant's case on March 18, 2002.

Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts. At issue before the ALJ was whether the applicant sustained an occupational hearing loss injury arising out of his employment with the employer, while performing services incidental to or growing from that employment; the nature and extent of disability from the claimed injury; and the respondent's liability for medical expense related to the claimed injury. With respect to the extent of disability, however, the parties admitted that no permanent partial disability compensation would be due, even if an occupationally-caused loss were to be found, because the audiograms offered into evidence showed that the applicant's loss did not reach the threshold level of compensability.

The ALJ issued his decision on June 20, 2002. He found that the applicant had in fact sustained an occupational hearing loss and that the respondent was liable for the reasonable and necessary medical expenses for bilateral hearing aids. The respondent filed a timely petition for review.

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:

The applicant was born in 1935. He worked in the employer's plant for 31 years until his retirement in 2000. He testified that every area where he worked was noisy. He testified particularly that he was assigned the polishing department and specials area of the plant in 1998, and that it was noisy there until silencers were installed on blowers in 1999.

His wife complained about his hearing -- he apparently has trouble with female voices particularly -- leading him to see a doctor about hearing aids. Accordingly, he saw Jeanne S. Vedder, M.D.

Dr. Vedder noted that the applicant felt his hearing might be improved with a hearing aid. She also noted complaints of tinnitus. She noted his 31 years employment for the employer's predecessors, including 20 years as a hand polisher when he was exposed to a noisy environment, and several years before that milling machines which was also very loud.

She concluded:

"Full audiogram shows bilateral symmetrical down-sloping sensorineural hearing loss, with thresholds normal through 1000 Hz and a drop first being measurable at 2000 Hz....

"Assessment. Bilateral symmetrical high frequency sensorineural hearing loss. Risk factors for developing this include age, high cholesterol and noise exposure. It appears that working in a loud environment for many years without hearing protection has contributed to his hearing loss with secondary tinnitus development."

Exhibit C, February 12, 2001 report of Vedder.

An audiogram attached to Dr. Vedder's report shows bone conduction losses in both ears as follows: at 500 Hz, 10 dB; at 1000 Hz, 5 dB; at 2000 Hz, 25 dB; and at 3000 Hz, 50 dB (this appears to be an air conduction reading.) Following the formula at Wis. Admin. Code § DWD 80.25(9), this averages to 22.5 dB in each ear.

However, a 22.5-decibel loss does not translate to any "percent of compensable hearing" under the "hearing impairment table" at Wis. Admin. Code § DWD 80.25(8). Instead, a worker must have greater than a 30-decibel loss in at least one ear before the table will yield any "percent of compensable hearing impairment." Consequently, as the parties agree, the applicant is not entitled to any compensation for permanent partial disability.

The applicant is not seeking disability compensation, however, but reimbursement of medical expenses for a hearing aid. The respondent opposes this claim on two grounds: first, the applicant has not shown his hearing loss was caused by work, so the need for the hearing aid has not been proven to arise out of a work injury; and, second, even if an injury from noise exposure is shown, there is no liability for medical expense incurred to pay for hearing aids when the loss is too low to result in the payment of disability compensation.

With respect to the respondent's argument, that the applicant here has not proven that his hearing loss -- even at the noncompensable less than 30 dB level -- was caused by occupational exposure to noise, Dr. Vedder states:

"It appears that working in a loud environment for many years without hearing protection has contributed to his hearing loss with secondary tinnitus development."

Exhibit C, February 12, 2001 report of Vedder. In general, occupational exposure "causes" an injury, if the injury is a "material, contributory causative factor in the onset or progression of the condition." See Universal Foundry Co. v. ILHR Department, 82 Wis. 2d 479, 487-88, note 5 (1978).

The respondent offers no opinion in rebuttal to Dr. Vedder, but instead contends that Dr. Vedder's opinion does not state causation to the requisite degree of medical probability, emphasizing particularly the doctor's use of the word "appears." However, the supreme court has held that the words "likely," "liable," and "probable" are sufficient to connote reasonable probability as opposed to possibility, whereas "perhaps" or "might be" are insufficient. Unruh v. Industrial Commission, 8 Wis. 2d 394, 401-02 (1959). Further, the court has held that an examiner who prefaces a comment "I feel" is expressing an expert medical opinion equivalent to "I believe." Ibid.

While the Unruh decision does not exactly address the word "appears," it does suggest that the courts are disinclined to take a hypertechnical approach in considering what is necessary to state an expert opinion. Under the facts of this case, Dr. Vedder's use of the word "appears" is sufficient to express an expert medical opinion to a reasonable degree of probability. (1)   Based on Dr. Vedder's unrebutted opinion, the commission concludes that the applicant has shown his loss arose out of his employment.

The respondent further argues that because the work-related noise exposure caused only a 22.5-decibel loss which does not rise to the level of a compensable disability, the applicant may not be compensated for the expense of his hearing aid and attendant medical treatment. However, that argument, and the prior commission decision on which it is based, (2)  confuses loss in terms of "impairment" with "injury."

Under the worker's compensation laws generally, a worker may have a "compensable injury" and incur medical expense even if there is no "compensable loss" in terms of disability or functional impairment. (3)   Moreover, this distinction between "injury" on the one hand, and "disability" or "impairment" on the other, is borne out by the administrative code. In describing how permanent disability is determined, the "hearing impairment table" at Wis. Admin. Code § DWD 80.25(8) refers to "percent of compensable hearing impairment." On the other hand, Wis. Admin. Code § DWD 80.25(6), which authorizes the payment of a hearing aid, states:

"Since a hearing aid relieves from the effect of injury the cost is compensable where prescribed by a physician. [Emphasis added.]"

On this point, the commission also notes the supreme court's policy that Wis. Stat. § 102.42 should be interpreted to allow injured workers to receive the treatment they need. UFE, Inc., v. LIRC, 201 Wis. 2d 274, 288 (1996). Accordingly, while the applicant's occupational hearing loss in this case has not reached the level where permanent partial disability may be paid, the applicant still has an injury which is amenable to treatment, and the respondent is liable for reasonable expenses to cure and relieve the effects of that injury. Under Wis. Admin. Code § DWD 80.25(6), those expenses in this case include hearing aids prescribed by Dr. Vedder.

The applicant has not yet purchased hearing aids. However, exercising his authority under Wis. Stat. § 102.18(1)(b), as affected by 2001 Wis. Act 37, SECTION 21, the ALJ prospectively ordered payment of all reasonable and necessary medical expense associated with the binaural hearing aids. The commission shall follow that course.

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 affirmed.

Within 30 days from the date of this order or within a reasonable time after the expenses are incurred, whichever is later, the respondent and its insurer must pay all reasonable and necessary medical expenses, including evaluation and trial, associated with the binaural hearing aids prescribed for the applicant as a result of his February 28, 2000, occupational hearing loss injury.

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

Dated and mailed January 31, 2003
hartlja . wrr : 101 : 8  ND § 3.42  § 5.19 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

cc: 
Attorney Robert K. Weber
Attorney Michael Marsh

Appealed to Circuit Court. Affirmed  October 9, 2003.

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(1)( Back ) This conclusion is born out by the common usage of the term. Websters Ninth New Collegiate Dictionary, (Merriam-Webster, 1988) defines "appears" in the sense Dr. Vedder used as: 

"4 : to become evident or manifest ," 

while Websters Third New International Dictionary, (Merriam-Webster, 1993) defines the word as: 

"4 a : to be clear to the mind : be obvious or evident b : to reveal itself to an observer or reader : be manifest "

(2)( Back ) Marvin Reinert v. Consolidated Papers, Inc., WC Claim No. 90-053052 (LIRC, November 5, 1991), aff'd sub nom. Reinert v. LIRC, et al., case no. 91-CV-016613 (Milwaukee County Cir. Ct. July 28, 1992).

(3)( Back ) For example, under Wis. Stat. § 102.43 (intro.) an injured worker receives no compensation for the first three days of temporary disability, unless he or she is disabled for a week or more. Thus, if a worker suffers a traumatic accident in which he cuts his hand or sprains his back, leaves work to obtain treatment, and is taken off work for a day, but then returns before losing three days of work and fully recovers, he or she may receive no temporary disability or permanent disability. Nonetheless, since there has been an injury, the insurer must pay the treatment expense to stitch the hand, x-ray the back, or whatever under Wis. Stat. § 102.42. 

uploaded 2003/02/10