DAVID J HARLAND, Applicant
IMAGE SYSTEMS, Employer
SENTRY INSURANCE A MUTUAL CO, Insurer
The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on March 18, 2004. The employer and its insurance carrier submitted an answer to the petition and briefs were submitted by the parties. At issue is whether the applicant sustained an occupational hearing loss arising out of and in the course of his employment with the employer, and if so, what are the nature and extent of disability and liability for medical expense.
The commission has carefully reviewed the entire record in this matter and hereby modifies the administrative law judge's findings to conform with the commission's findings made below, but affirms the administrative law judge's ultimate finding that no occupational hearing loss was established. The commission makes the following:
The employer had an environmental safety company conduct a noise exposure study at the plant in May of 2003. Unfortunately, only the 640 press was in operation during the study, and the study notes that the 625 press would also have to be operating in order to obtain an accurate assessment of noise levels. However, the decibel level of the 640 press was measured at between 81.6 and 106.8 decibels, with an average level of between 82 and 93 decibels. Wis. Admin. Code § DWD 80.25(1) provides that a noise exposure level of 90 decibels or more for eight hours a day is considered harmful.
Subsequent to his layoff on May 17, 2002, the applicant has worked as a press operator for three other companies, and as a drywaller. He currently works as a press operator for another printing company. He has worn hearing protection at all these subsequent jobs, and although they all involved loud noises, his work for the employer was the loudest.
The applicant was seen by Dr. Michael Mather on May 7, 2001, with complaints of general achiness as well as dizziness and disequilibrium. There was also some nausea associated with the dizziness, and ringing in his ears. He further complained of plugging in his right ear over the previous two months. Dr. Mather ordered an audiogram that same day, and it showed a moderately severe bilateral loss for high pitch sounds. There was also a possible hearing loss present in the left ear for sounds associated with speech. Another audiogram was performed on January 16, 2003, and it showed a severe bilateral loss for high pitch sounds, as well as a mild bilateral loss for sounds associated with speech (left ear worse than the right). The applicant saw Dr. Heather Murphy for hearing loss in February 2004, and she ordered an audiogram performed on February 4, 2004. It had results showing slightly more hearing loss than the May 2003 audiogram.
Dr. Murphy partially completed a WKC-16-B dated February 24, 2004. She did not check any causation box but wrote in the area addressing occupational exposure:
"It is as likely as not that the patient's hearing loss was secondary to noise exposure given the audiogram results. He would benefit from a trial of amplification (hearing aids)."
There are no clinic notes submitted from Dr. Murphy. The WKC-16-B originally had a typewritten date of "6/4/99" in the box asking for the date of the traumatic event, but that is crossed out and "5/17/02" is penned in with a different color ink.
The applicant was regularly exposed to harmful noise levels, because with both presses running the decibel level would have been over 90. It is significant that the applicant wore hearing protection, but it is clear from his testimony that he went without it for significant periods of time. There is no medical opinion attributing any of the applicant's hearing loss to the May 2001 illness. However, the only medical opinion on record concerning the alleged occupational hearing loss is from Dr. Murphy, and that opinion is inadequate. The phrase "as likely as not" reaches only the level of speculative possibility rather than the level of reasonable probability. (1) Accordingly, the application will be dismissed.
NOW, THEREFORE, this
Dated and mailed August 11, 2004
harlada . wpr : 185 : 8 ND § 5.19
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
Robert Glaser, Commissioner
cc:
Attorney Matthew C. Siderits
Attorney Roland C. Cafaro
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