STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
HERBERT D HALL, Applicant
ALGOMA HARDWOODS, Employer
EMPLOYERS INSURANCE OF WAUSAU, Insurer
WORK INJURY SUPPLEMENTAL BENEFIT FUND
WORKER'S COMPENSATION DECISION
Claim No. 92025988
Pursuant to the timely petition for review filed by the employer and Employer's Insurance of Wausau (collectively, the respondents) in the above-captioned matter, the commission has considered the petition and all relief requested. The commission has reviewed the applicable records and evidence and finds that the administrative law judge's findings and order are supported thereby. The commission therefore adopts the findings and order of the administrative law judge as its own.
NOW, THEREFORE, the Labor and Industry Review Commission does
That the findings and order of the administrative law judge are hereby affirmed.
Dated and mailed at Madison, Wisconsin, October 31, 1994.
ND § 5.19 § 3.43
Pamela I. Anderson, Chairman
Richard T. Kreul, Commissioner
James R. Meier, Commissioner
This case turns on whether to accept the 1976 pre-employment audiogram as baseline for determining pre- employment hearing loss. The 1976 audiogram was performed 64 hours after the applicant had last been exposed to noise, and the applicant argues his hearing had not yet had the chance to "bounce back" from the occupational exposure when the audiogram was performed. The administrative law judge accepted this argument, based on the evidence at the hearing, and concluded that the audiogram should not be accepted because it has not been established to be reliable. The commission agrees.
At the remand hearing, the respondent introduced a letter from Gary T. Miller, M.D., to the effect that OSHA only requires 14 hours of non-noise exposure to obtain an accurate audiogram and that:
"Certainly, any audiogram obtained 48 hours or more after removal from the long-term industrial noise environment would not reflect any temporary threshold shift, and should accurately reflect the true status of the individual's hearing. It should be noted that 48 hours is more than 3 times the 14 hours which OSHA has determined to be adequate for obtaining an accurate audiogram. I have been unable to find any published requirement for either baseline or follow-up audiometric testing which exceeds the 14-hour OSHA baseline requirement."
However, the evidence in this case established that the pre-employment audiogram at issue (which was performed only 64 hours after exposure to noise) was unreliable. The 1976 audiogram shows a significantly greater degree of hearing loss in the left ear than was established in the 1992 test, indicating that not all of the pre-existing loss measured in the 1976 audiogram was permanent. Only permanent hearing loss is compensable as occupational deafness. Section 102.55 (1), Stats. Likewise, an employer may only claim pre-existing, permanent deafness as the basis for a reduction under sec. 102.55 (8), Stats. Further, permanent sensorineural hearing loss caused by occupational exposure to noise is not considered to be reversible, 3A Attorneys' Textbook of Medicine, par. 84A.102 (1993), so the applicant's hearing would not have improved between 1976 and 1992. In short, the reliability of the 1976 audiogram is severely compromised by the fact it either was inaccurate or showed some degree of hearing loss to be permanent when in fact it was not.
The administrative law judge also found that the record does not show the 1976 audiogram was performed by a qualified person and that the 1976 audiogram was unreliable because it was taken nine months before the applicant quit US Plywood. However, the copy of the audiogram indicates the test was given by a "technician" at the Algoma Clinic, and is signed by a medical doctor. Further, sensorineural loss is not something that gets better, so an accurate audiogram should, if anything, have understated the applicant's loss when he left US Plywood nine months later. Nonetheless, because the commission cannot conclude that the 1976 audiogram was accurate, the audiogram may not be used as a basis for reduction of liability by the employer.
It might seem unfair to place the liability for the applicant's hearing loss on the employer. However, the general rule in occupational disease cases is the entire amount of liability for an occupational disease is imposed on the last employer whose employment contributed to the disease, even if other employment contributed to the progression of the industrial disease, because "the law of averages will equalize burdens imposed by this act among the employers and the compensation insurers of this state." Employers Mutual Life Ins. Co. v. McCormick, 195 Wis. 410, 414-16 (1928); Travelers Ins. Co. v. ILHR Department, 85 Wis. 2d 776, 784 (Ct. App., 1978). This general rule is recognized in the very opening sentence of sec. 102.555 (8), Stats., which states that "an employer is liable for the entire occupational deafness to which his or her employment has contributed," unless he or she can establish previous deafness by a hearing test or other competent evidence. Again, the employer in this case has failed to provide a reliable test or other evidence showing previous deafness.
cc: ATTORNEY ANTHONY W WELHOUSE
MURPHY GILLICK WICHT & PRACHTHAUSER
ATTORNEY JENNIFER LEE EDMONDSON
STILP & WELLS
ATTORNEY LOWELL NASS
ASSISTANT ATTORNEY GENERAL
DEPARTMENT OF JUSTICE
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