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

CHARLES PETERSON, Applicant

GAF CORP, Employer

NATIONAL UNION FIRE INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 96040730

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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, except that it makes the following modifications:

1. Delete the last two sentences of the first paragraph of the ALJ's Findings of Fact and substitute:

"The applicant contends he has sustained occupational hearing loss as the result of his employment with the employer."

2. In the first sentence of the fifth paragraph of the ALJ's Findings of Fact, delete "$1,709.99" and substitute "$1,490.00".

3. In the INTERLOCUTORY ORDER, delete "One thousand seven hundred nine dollars and ninety-nine cents ($1,709.99) and substitute "One thousand four hundred ninety dollars ($1,490)."

ORDER

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

Dated and mailed June 30, 1997
petersc . wmd : 101 : 5  ND § 5.45

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

MEMORANDUM OPINION

The ALJ found that the applicant sustained compensable hearing loss arising out of his employment with the employer while performing services growing out of and incidental to that employment. He ordered 39.16 weeks of permanent partial disability compensation for the applicant's occupational deafness based on the audiogram performed by Dr. Diddams and offered into evidence by the applicant. He also ordered payment of medical treatment expense in the amount of $1,709.99 for "hearing aid equipment" including $1,490 for a hearing aid, and $219.99 for a special telephone.

The employer and insurer (collectively, the respondent) appeal. The respondent disputes causation, and liability for medical expenses. Regarding causation, the respondent argues that the noise levels at the employer's plant were below dangerous levels; that even if the plant was noisy, the applicant was not exposed to the noise after 1983; that medical examination notes indicate the applicant's hearing and ears were normal bilaterally; and that the ALJ apparently erroneously thought the applicant did not wear hearing protection while working for the employer. Regarding medical expense, the respondent asserts that the ALJ erroneously ordered the prospective payment of expenses for both the hearing aid and the special phone, and that the expense for a special phone was unsupported.

a. Causation.

In support of its argument that employer's plant was not dangerously noisy, the respondent states: "Exhibit three from the hearing were noise level tests recorded by GAF, which showed noise levels below dangerous levels." Respondent's petition for review at page 2. However, Exhibit 3 appears to be a test of the applicant's hearing, not a noise level survey. Indeed, the commission's review did not disclose a noise survey anywhere in the record.

Nor does the testimony of the employer's witness, project engineer Martin, establish that a noise survey was done or that the plant was not noisy. Indeed, Martin's testimony that the employer provided ear plugs and required regular hearing tests suggests exactly the opposite. Finally, the commission has little difficulty accepting the applicant's testimony that the rock crushing equipment was very noisy. In short, the commission sees no basis for reversing the ALJ's finding that the work environment was "very noisy."

The respondent next asserts that the applicant worked in a separate, minimally noisy office area from 1983 to 1990, and was completely outside the plant after 1990. However, the applicant's unrebutted testimony was that while he was a supervisor, he spent "most of his time" near heavy machines. He did admit that he had an office where he apparently made up time sheets, but the commission cannot conclude that he spent much time there from 1983 to 1990.

In any event, the applicant had already worked for the employer for 23 years by 1983. The employer did not offer expert medical opinion to establish that the level of noise the applicant was exposed to after 1983 was more significant than the level of noise he was exposed to before 1983. If anything, its own records suggest exactly the opposite; Dr. Dodds noted the onset of noise-induced hearing loss from employment with the employer already in 1973 to 1978 (exhibit 1), and an October 1993 report from Professional Health Services shows continued hearing loss in the years from 1981 to 1983 (exhibit 4).

The respondent also asserts that the ALJ ignored volumes of medical evidence suggesting that the applicant did not sustain any hearing loss whatsoever while working for it. The commission must reject this assertion as well. For support, the respondent cites statements such as "normal ears" from a family doctor doing general physicals or treating non-hearing related conditions. In one instance, the family doctor notes "hearing was normal bilaterally, grossly." The word "grossly," which the employer omitted in its citation to the note, indicates that the doctor did not actually do a hearing test. In sum, the commission cannot rely on these types of notes to conclude the applicant did not sustain occupational deafness in the face of the opinion of its own hearing expert that the applicant had some noise-induced hearing loss already by the 1970s.

The employer also believes that that the ALJ may have erroneously believed that the applicant never wore hearing protection based on the ALJ's findings:

". . . He spent most of his time working near the rock crushing machines which as indicated earlier were very noisy. He testified that he never wore hearing aids. As a result, the applicant claims he as suffered some hearing loss. [Emphasis added.]"

ALJ decision, page 2.

The commission acknowledges that these findings are susceptible to the interpretation given them by the respondent, and that the record clearly establishes that the applicant wore hearing protection, at least after 1972. On the other hand, the fact is that ALJ's findings referred to hearing aids (which the applicant did not wear), not hearing protection (which the employer did require him to wear, at least after 1972.) Moreover, even if the ALJ was erroneously thinking "hearing protection" when he wrote "hearing aids," the record suggests it would not have made a difference. Dr. Dodds, the employer's medical expert, did not opine that the applicant's hearing loss would not have been caused by work if he had worn hearing protection; he simply opined the applicant had hearing loss caused or contributed to by noise exposure at work for the employer. (1)

In sum, the commission sees no basis for reversing the ALJ's conclusion that the applicant sustained compensable noise-induced hearing loss as a result of his employment with the employer.

b. Medical expenses.

The respondent also asserts that the ALJ erroneously ordered payment of medical expense for hearing aids and a special phone. The respondent asserts that the applicant had not yet incurred any medical treatment expense, so that none should be paid.

It is true that the commission does not normally order the prospective payment of medical treatment expense. (2) On the other hand, medical expense for hearing aids, at least, is specifically authorized by rule. Wisconsin Admin. Code § DWD 80.25 (6). On the third hand, the code only authorizes the payment of hearing aids prescribed by a physician.

In this case, the applicant has not yet bought the special phone, nor was it prescribed by a doctor. This expense shall not be paid, and the ALJ's decision has been modified accordingly. However, the commission affirmed the ALJ's interlocutory order so that the applicant may be reimbursed if he indeed the special phone is prescribed and he buys it.

However, the applicant has actually ordered the hearing aid, at least the "special order form" attached to exhibit B so indicates. Further, the hearing aid was prescribed by John A. Diddams, M.D., see item 18 in exhibit A. The commission thus affirmed the payment of the hearing aid.

cc: ATTORNEY DAVID P MORZENTI
MORZENTI LAW OFFICE

ATTORNEY JOSEPH J FERRIS
KASDORF LEWIS & SWIETLIK

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Footnotes:

(1)( Back ) The applicant's medical expert did note that the applicant worked around rock crushers and sifters without ear protection "a good portion of the time." That, of course, is true: the applicant testified he that he only wore ear protection "some of the time" during his first period of employment from 1953 to 1965, and not at all in his early years on the rock crusher machine.

(2)( Back ) Levy v. Industrial Commission, 234 Wis. 670 (1940); Ramirez v. Grede Foundries, WC claim no. 92-042919 (LIRC, November 21, 1993); and Stidham v. Martin Transport, WC claim no. 89-070496 (LIRC, February 28, 1992).