STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

ROBERT C MENDEN, Applicant

MASTER LOCK COMPANY, Employer

NATIONAL UNION FIRE INS CO OF PITTSBURG, Insurer

 

WORKER'S COMPENSATION DECISION
Claim No. 2004-010839


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 agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.


ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed July 29, 2005
mendero . wsd : 175 : 4   ND § 3.42  § 5.19

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The applicant asserts in his petition for commission review, the administrative law judge erred in determining there is a legitimate doubt the applicant suffered a compensable hearing loss arising out of his employment and dismissed the applicant's claim for a compensable hearing loss, as well as his claim for hearing aids. The applicant asserts the administrative law judge should have credited the opinion of Dr. Liu, an otolaryngologist, who stated in a letter dated February 16, 2004, that given the pattern of the applicant's hearing loss and its severity, he found it probable the applicant's noise exposure with the employer during his years of employment was at least a material contributory causative factor in the onset and progression of his hearing loss. The applicant points to his 27 years of employment when he was exposed to loud noise from machines and carpentry work, especially in his early years of employment, from 1968 to 1979, before he began wearing hearing protection. The applicant testified he began to notice some loss of hearing and difficulty hearing in the late 1980's and early 1990's. On his last day of work, on October 28, 1993, he underwent an exit audiogram, which revealed a 26dB four frequency peer tone average loss in both ears.

Dr. Dankle, who examined the applicant on behalf of the employer, opined that based on the applicant's history as well as the results of his examination and his audiograms, it was his opinion the applicant's hearing loss was predominantly related to presbycusis. Dr. Dankle stated there is undoubtedly some possibility the applicant has had a slight degree of contribution made by industrial noise exposure, however, the extent to which the occupational noise exposure damaged the applicant's hearing should be based upon hearing results obtained closest to his last day of work. Dr. Dankle explained that any injury caused by noise exposure is not progressive in nature, and once the applicant was removed from a noisy environment, any hearing loss that has occurred for the applicant subsequent to October 28, 1993, would not be associated in any way with employment with the employer. Dr. Dankle noted the applicant had a high frequency loss present at the time of his retirement which did reflect the likelihood of some noise injury, however, the severity of the loss found at the time of his retirement was not compensable, and the additional hearing loss the applicant has suffered since his retirement was due to presbycusis and therefore, not compensable.

The commission credits Dr. Dankle's assessment that any hearing loss injury caused by noise exposure is not progressive in nature when one is removed from noisy employment, and therefore, any hearing loss that has occurred for the applicant subsequent to October 28, 1993 would not be associated with his employment with the employer. Dr. Liu did not provide any explanation why the applicant's hearing loss worsened to such a degree by 2004 that he required hearing aids, and how the applicant's employment led to the worsening over 10 years when he had not worked since October 1993. The commission credits Dr. Dankle's assessment the applicant's current hearing loss, over the previous 10 years, was due to presbycusis and not due to his work for the employer. Although the applicant gave Dr. Liu a history of 25 years of hearing loss, in fact, the applicant testified he had first noticed some hearing difficulty in the late 1980's and early 1990's, which would have been a 15-year history of hearing difficulty.

The applicant asserts that even if his occupational hearing loss was not compensable, the employer and insurer should be responsible for the expense of hearing aids. The commission has held in the past that even though the applicant has suffered a noncompensable hearing loss due to his employment, the expense of a hearing aid may still be reimbursed. In Hartl v. Alpha Laval Inc., commission decision dated January 21, 2003, the commission noted that under the worker's compensation law, 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. The commission stated that 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 by the hearing impairment table. Wis. Admin. Code § DWD 80.25(8) refers to a percent of compensable hearing impairment, but on the other hand, the Wis. Admin. Code § 80.25(6) authorizes the payment of hearing aids and states since the hearing aid relieves from the effect of the injury, the cost is compensable whereas prescribed by a physician. In the Hartl case, it was clear the applicant was prescribed hearing aids as a direct result and close in time to his audiogram and findings of a noncompensable hearing loss. In our current case, the applicant did not receive hearing aids until March 2003, almost 10 years after his last day of work and the finding of a noncompensable hearing loss. It was not established the applicant's need for hearing aids was due to his noncompensable hearing loss. In the meantime, the applicant had worsening hearing loss due to presbycusis and sought hearing aids for his more severe hearing loss in 2003, due to his nonwork-related disability. In this case, the evidence does not establish the applicant required hearing aids due to any portion of the hearing loss measured in 1993, but rather due to his noncompensable hearing loss in 2003. Therefore, the administrative law judge appropriately denied the applicant's claim for hearing aid expense.

cc:
Attorney Daniel J. Kelley
Attorney Rhyan Lindley



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