MARZELIA S LEWIS, Applicant

HARLEY DAVIDSON MILWAUKEE, Employer

TRANSCONTINENTAL INSURANCE CO, 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 by the applicant.

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 July 14, 2005
lewisma . wsd : 175 : 2   ND § 5.19

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

The applicant asserts in her petition for commission review the administrative law judge erred in determining the applicant failed to meet her burden of proof she has noise induced hearing loss as a result of her work for the employer and dismissed the applicant's claim. The applicant, who was 62 years old at the time of the hearing, testified that she worked for 15 to 20 years at the employer's Capitol Drive facility where she was exposed to loud noise from punch press machines, and three years at the employer's Juneau Avenue plant where she was subjected to loud noise. The applicant asserts the administrative law judge should have credited the opinion of Dr. Medved, who stated in his WC-16-B dated October 9, 2002, the applicant suffered an occupational hearing loss as a result of her work in and around very loud noise with the employer, including punch press, drill press and loud machinery. The applicant points to the fact Dr. Medved opined the cause of the applicant's hearing loss is multi-factorial, and although the applicant may have had some hearing loss when her employment began, her 30 years of loud noise exposure with the employer made it worse.

However, the applicant testified she regularly wore hearing protection as provided from the employer beginning with her third year of employment. The evidence also indicated the applicant had a premature hearing loss at the beginning of her employment with the employer which was unrelated to her employment. Both Dr. Medved and Dr. Dankle, who examined the applicant on behalf of the employer, noted the applicant's audiogram was not consistent with a normal pattern for occupational hearing loss. Dr. Dankle stated the applicant's audiogram failed to show the classic curve which one would expect with noise induced sensorineural hearing loss, but rather was a pattern more associated with hereditary hearing loss.

The applicant asserts in her petition for commission review Dr. Dankle's assessment was not sufficient legally to rebut the applicant's case she suffered from noise induced hearing loss. Dr. Dankle stated the applicant's hearing loss was not predominantly, nor materially related to occupational noise exposure. While Dr. Dankle did not use the so-called magic words the applicant's noise exposure was not a material contributory causative factor in the onset or progression of her hearing loss, the commission finds Dr. Dankle's assessment to be legally sufficient to rebut the applicant's claim. The commission does not require physicians to use the magic words in order to find their opinions to be legally sufficient. Rather, the commission will look at the underlying opinion, reasoning, and medical evidence to reach its conclusion. In this case Dr. Dankle stated the applicant's hearing loss was more clearly that of someone with a hereditary hearing loss. Dr. Dankle also stated the applicant's final five years of employment were not in noisy employment, and she suffered an increase in hearing loss at that time despite the fact she was not subjected to loud noise during her final years of employment. The commission finds Dr. Dankle's opinion the applicant's hearing loss was not predominantly nor materially related to occupational noise exposure to be legally sufficient to rebut the applicant's claim. Given the circumstances in this case of the applicant's premature hearing loss at the beginning of her employment, the unusual pattern in the applicant's audiogram which did not demonstrate the normal pattern for occupational noise induced hearing loss, and given the evidence of the progression of the applicant's hearing loss even though she was wearing hearing protection and not exposed to noise in the workplace during her final years with the employer, the commission finds the evidence was sufficient to raise a legitimate doubt the applicant's hearing loss was caused by her exposure to loud noise in the workplace.

cc:
Attorney Daniel R. Schoshinski
Attorney Joseph P. Danas, Jr.

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