ROBERT SAUGER SR, Applicant

C W TRANSPORT WISCONSIN RAPIDS, Employer

WORK INJURY SUPPLEMENTAL BENEFIT FUND, Insurer

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 makes the following:

The ALJ did not hold a hearing in this case, and the parties never agreed to a single stipulation of facts. However, based on the medical records submitted by the applicant, and the separate, proposed stipulations each side has submitted, the commission is satisfied the following facts are not really in dispute.

The applicant claims hearing loss from years of working in the trucking industry. Specifically, he worked 34 years in the trucking industry from 1957 to 1992. He worked for Olson Transportation, and its successor C.W. Transport, from 1957 to 1985, then for Magie Bros. Oil, an Illinois company, from 1985 to 1992.

The applicant had an audiogram to test his hearing in 1992. The audiogram showed a left ear hearing loss of 8.75 percent, and a right ear hearing loss of
22.75 percent. Binaural loss is determined by weighted average under which the lesser loss is given five times the weight of the greater loss. See Wis. Admin. Code DWD 80.25(9). Thus, the applicant's binaural loss was 11.08 percent or less.

The loss was sufficient for the prescription hearing aids back in 1992. See January and February 1992 notes of Suzanne Neumann, M.S. The applicant went ahead and purchased the hearing aids, which were paid for in part by insurance (apparently non-industrial insurance) and in part by the applicant.

In March 1999, seven years after he stopped working, the applicant experienced a sudden, right-sided sensorineural hearing loss. On March 4, 1999, his doctor, Andrew C. Campbell, M.D., began a prednisone steroid therapy and ordered an MRI to rule out an intracranial cause.

The MRI was negative, and steroid treatment helped a little. On March 18, 1999, Dr. Campbell assessed a sudden sensorineural hearing loss, stabilized after steroid treatment.

The applicant underwent several audiograms in March 1999. The parties' stipulations agree about the results of two of them. A March 4, 1999 audiogram showed a 52.25 percent loss in right ear and 14 percent loss in the left, which would result in a binaural loss of 20.375 percent. A March 25, 1999 audiogram showed a 52.5 percent loss in the right ear and a 17.5 percent loss in the left, which would result in a 23.333 percent loss.

In February 2000, the applicant filed an application for hearing, initially seeking compensation for permanent partial disability for hearing loss at 20.33 percent, and for the expense of a hearing aid. The claim was based on a 1985 date of injury, which was the applicant's last day of work with C.W. Transport. There was a delay while the applicant considered interpleading Magie Bros. Oil where he worked from 1985 to 1992.

However, the applicant later dropped its request for interpleader by letter dated January 24, 2002, noting that Magie Bros. was a non-Wisconsin employer. Since the application was based only a 1985 injury for which the 12-year statute of limitations had long since passed, only the Work Injury Supplemental Benefits Fund (the Fund) is potentially liable under Wis. Stat. § 102.66. (1)

In the letter dropping the interpleader request, the applicant also conceded his binaural hearing loss was less than 20 percent, barring recovery against the Fund for permanent partial disability under Wis. Stat. § 102.555(11). (2)    However, the applicant demanded his claim for hearing aids go forward.

The hearing aid claim was then scheduled for a hearing before ALJ McSweeney on September 3, 2002. However, before the hearing, on August 21, 2002, the Fund's attorney wrote to the ALJ and asked the hearing be cancelled and that the case be tried on stipulated facts. The Fund's attorney asserted that because the Fund is not liable for payment of permanent partial disability under Wis. Stat. § 102.555(11), it would not be liable for medical expenses  -- as a matter of law --  under a 1994 LIRC decision, Procopio Sandoval v. City of Milwaukee, WC Claim no. 93033545 (LIRC, May 11, 1994). The applicant's attorney opposed canceling the hearing, disputing the Fund's interpretation of Wis. Stat. § 102.555(11) and the Sandoval case.

Nonetheless, the ALJ cancelled the hearing, and both sides submitted their own version of "stipulated" facts. While the "stipulations" differ primarily on medical issues that need not be resolved to decide the legal issue, the ALJ found them sufficient to permit decision without hearing analogizing the request of the Fund's attorney to a motion for summary judgment under the code of civil procedure. He concluded that the applicant could not recover the expense for the hearing aids as a matter of law, and dismissed the application with prejudice.

Wisconsin Stat. § 102.18(1)(a) permits an ALJ to decide a case by stipulation without a hearing. Here, while the parties submit separate stipulations that are not identical in all respects, the parties agree on the facts material to the question of whether the applicant may bring a claim for hearing aids even though his hearing loss falls below the 20 percent threshold for a permanent partial disability recovery from the Fund under Wis. Stat 102.555(11).

"Occupational deafness" or hearing loss caused by prolonged exposure to noise in employment, is an occupational disease. Wis. Stat. § 102.555(1) and Dischler v. Industrial Commission, 10 Wis. 2d 637 (1960). If a claim of occupational disease is barred solely by the statute of limitations, the department may direct payment of compensation and medical expenses from the Fund. Wis. Stat. § 102.66(1). However, unlike worker's compensation insurers in general, the Fund's liability for compensation is secondary to group insurance paid for in whole or part by an insurer or to a federal insurance or benefit program paying disability or medical benefits.

In addition, Wis. Stat. § 102.555(11) provides that compensation from the Fund for permanent partial disability due to occupational deafness may be paid only where the hearing loss exceeds 20 percent of binaural hearing loss. Here, the applicant admits that there is no liability for hearing loss as the loss is less than 20 percent.

However, since Wis. Stat. § 102.555(11) specifically prohibits only the payment of permanent partial disability compensation for binaural hearing loss less than 20 percent from the Fund, it seems logical to conclude that compensation for medical expenses still should be paid especially as Wis. Stat. § 102.66(1) specifically authorizes the Fund to pay medical expenses. In other words, if Wis. Stat. § 102.555(11) had been intended to prohibit payment of both disability compensation and medical expenses, it would not have used the phrase "compensation ... for permanent partial disability" but perhaps simply "compensation" (3) as used in Wis. Stat. § 102.555(10).

The Fund argues that the Fund is nonetheless not liable under the holding in Procopio Sandoval v. City of Milwaukee, WC Claim no. 93033545 (LIRC, May 11, 1994). That was a hearing loss case which did not involve the Fund or the 20 percent threshold under Wis. Stat. § 102.555(11). Rather, that case --  brought within the statute of limitations -- involved the question of whether hearing aids should be paid by an employer when the worker had sustained a minor occupational hearing loss less than the 30-decibel level necessary to result in any percentage of impairment under the table in Wis. Admin. Code § 80.25(8). (4)    Holding that a loss less than 30 decibels is not an "injury," the commission in Sandoval held the hearing aid was not compensable as necessary to treat an "injury."

The Fund argues that the same rationale should apply under Wis. Stat. § 102.555(11). Thus, if the Fund does not have to pay permanent partial disability for a less than 20 percent hearing loss, the loss should not be considered injury for which medical expense is due.

However, in Sandoval the worker's actual hearing loss from work was less than 30 decibels in either ear, so he had a zero percent permanent partial disability rating. In this case, the applicant's loss under the 1992 audiogram establishes an actual loss well over 30 decibels in each ear resulting in a significant impairment rating. That is, the applicant has an otherwise compensable loss in each ear that would have resulted in the payment of permanent partial disablity had he brought his claim against C.W. Transport back in 1992.

Thus, this case is distinguishable from Sandoval.   Sandoval suggests that the administrative code regards an actual hearing loss of less than 30 decibels is so trivial that it is not really an "injury." On the other hand, this case involves a loss that the administrative code treats as disabling and would be compensable against an employer, but which is not compensable against the Fund under Wis. Stat. § 102.555(11). In sum, the commission could justifiably refuse to extend the Sandoval rule to this case.

Moreover, the commission effectively overruled Sandoval in James Hartl v. Alfa Laval, Inc. WC claim no. 2001-009817 (LIRC, January 31, 2003). In Hartl, the commission awarded compensation for a hearing aid, even though the applicant's less than 30-decibel loss did not translate to any "percent of compensable hearing loss" under the "hearing impairment table" at Wis. Admin. Code § DWD 80.25(8), holding:

"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, 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. 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... [Footnotes omitted.]"

In sum, the commission cannot conclude that the applicant's claim for a hearing aid should be dismissed as a matter of law. This case shall be remanded to the department to allow the applicant's claim for a hearing aid heard and decided on its merits.

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

The findings and order of the administrative law judge are reversed. This case is remanded to the Worker's Compensation Division of the Department of Workforce Development for further appropriate action, including a hearing and decision by an administrative law judge, if necessary.

Dated and mailed June 6, 2003
saugerr . wrr : 101 : 3   ND § 5.19  § 8.17 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

cc: 
Attorney Daniel R. Schoshinski
Attorney Jermone S. Schmidt

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

(1)( Back ) The current version of Wis. Stat. § 102.66(1) provides: 102.66(1) In the event that there is an otherwise meritorious claim for occupational disease, a traumatic injury resulting in the loss or total impairment of a hand or any part of the rest of the arm proximal to the hand or of a foot or any part of the rest of the leg proximal to the foot, any loss of vision, any permanent brain injury, or any injury causing the need for a total or partial knee or hip replacement, and the claim is barred solely by the statute of limitations under s. 102.17 (4), the department may, in lieu of worker's compensation benefits, direct payment from the work injury supplemental benefit fund under s. 102.65 of such compensation and such medical expenses as would otherwise be due, based on the date of injury, to or on behalf of the injured employee. The benefits shall be supplemental, to the extent of compensation liability, to any disability or medical benefits payable from any group insurance policy whose premium is paid in whole or in part by any employer, or under any federal insurance or benefit program providing disability or medical benefits. Death benefits payable under any such group policy do not limit the benefits payable under this section.

(2)( Back ) 102.555(11) Compensation under s. 102.66 for permanent partial disability due to occupational deafness may be paid only if the loss of hearing exceeds 20% of binaural hearing loss.

(3)( Back ) "Compensation" means "worker's compensation" which in turn is constituted by allowances, recoveries, and liabilities under ch. 102, Stat. See Wis. Stat. § 102.01(1)(intro.) , (2)(am).

(4)( Back ) Under the table, a 30 decibel loss equals a zero PPD rating, a 31 decibel loss equals a 1.6 percent PPD, with each decibel loss resulting in additional 1.6 percent PPD thereafter.

uploaded 2003/06/13