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


DALTON F NORRIS, Applicant

BARBER GREENE TELSMITH, Employer

SAFECO INSURANCE COMPANY OF AMERICA, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 92054134


The administrative law judge issued his Findings of Fact and Interlocutory Order in this case on August 20, 1993, following a hearing on May 23, 1993. The employer and the insurer (collectively, the respondent) have submitted a petition for commission review of the administrative law judge's findings and order. Thereafter, both the respondent and the applicant submitted briefs.

While the case was pending review, the Court of Appeals issued a decision in Harnischfeger v. LIRC, 184 Wis. 2d 227 (Ct. App., 1994), which held that the commission used an incorrect methodology in computing occupational hearing loss in cases of pre-employment hearing loss. The commission deferred its review of this case until the supreme court issued its decision reversing the court of appeals in Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650 (1995). Thereafter, the parties were given the opportunity to submit additional briefs.

Prior to the hearing, the respondent conceded jurisdictional facts and an average weekly wage of $555.60.

The issues are whether the applicant sustained a compensable occupational hearing loss arising out of his employment with the employer and, if so, the amount of the loss.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties and internal memos and worksheets from the Department of Industry, Labor and Human Relations (DILHR) relied on by the administrative law judge in reaching his decision. Having done so, the commission hereby sets aside the administrative law judge's Findings of Fact and Order, and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Facts and expert opinion.

The applicant was born in 1930. Prior to 1965, he worked for eight years at Cream City Boiler and for eight years at Vessel Craft. He began working for the employer in February 1965, and continued to work for the employer until his retirement in January 1992.

The employer makes heavy machinery, and the applicant worked in the fabrication area as a welder. His duties included hammering on steel parts, at times using a punch. The shop area was noisy from a grinder and a shear machine used to cut steel which ran almost constantly. Until the employer moved its plant from Milwaukee to Mequon in 1979, the shear machine was close to the applicant's work site. The applicant describes the Mequon plant as even noisier, but admitted the noise from the shear machine in Mequon was less since the machine was further away from his work site.

The applicant suffered at least some hearing loss while working for Vessel Craft before 1965. Nonetheless, when he started working for the employer, he could talk on the telephone, carry on conversations with plant workers and hear a doorbell. His hearing loss progressed while he worked for the employer. He experienced problems understanding people when they spoke to him. He noticed his hearing seemed to grow worse more quickly after the move to the Mequon plant. He testified he now "doesn't hear much of anything" and he describes himself as "almost deaf."

The plant manager, who testified on behalf of the employer, stated that he thought the noise was about the same in Mequon as Milwaukee. He worked side by side with the applicant from 1965 to 1975, stated that the applicant had a hearing problem already in 1965. The plant manager did admit, however, that the applicant's hearing became noticeably worse while he worked for the employer.

In fact, when the applicant began working for the employer in 1965 his hearing loss was measured at 95 dB in the right ear and 90 dB in the left. When he retired in 1991, his hearing loss was measured 106.25 in the right ear and 110 dB in the left.

The applicant's doctor, Jeffrey E. Friedman, M.D., rated the applicant's current hearing loss at 100 percent in each ear and bilaterally. The doctor noted military service ending in 1953 (when the applicant would have been 23), a history of noisy work, decreased ability to hear since the 1960s, employment with the employer since 1964 that has always involved exposure to loud noise, and a marked increase in noise exposure in 1979. He found the applicant's hearing loss was caused by work directly and as an occupational disease.

The independent medical examiner, D. J. Chrzan, M.D., stated that the applicant's records showed a severe, bilateral, flat hearing loss. However, he went on to opine that the applicant's "history and configuration" were not those of noise-induced hearing loss, but more likely degenerative and not related to noise. He stated that noise-induced hearing loss usually becomes worst after 15 years of exposure, and does not progress significantly thereafter. He stated that noise-induced loss seldom exceeded 35 dB in the low frequencies, and 75 dB in the higher frequencies. In this case, the applicant's loss, even before he began working for the employer, was much higher in all frequencies.

Dr. Chrzan went on to say, that in order for the applicant's hearing loss to progress from his 1965 pre-employment level, he would have had to have been exposed to noise approaching 160 dB. He noted noise surveys which did not show that much noise anywhere in the employer's plant. Dr. Chrzan explained that noise-induced hearing loss becomes less progressive as time wears on because the hearing loss itself acts as a kind of "ear plug" which tends to separate the ear from harmful environmental noise. He concludes that any additional hearing loss the applicant suffered since 1965 was due to aging and the natural progression of his "original otologic disease." The doctor does not further describe the "original otologic disease," so the commission assumes he referred to the applicant's hearing loss from the exposure to noise prior to employment with the employer.

2. Applicable statute.

The statutes define "occupational deafness" as permanent partial or permanent total hearing loss in one or both ears due to prolonged exposure to noise in employment. An employer is generally liable for all the occupational deafness to which his employment contributed. However, if the employer can prove pre- employment deafness, even pre-employment occupational deafness, it does not have to pay for the loss from pre-existing loss. Sections 102.555 (1) and (8), Stats. If the pre-employment deafness is due to occupational disease from employment with another employer, and the worker is barred from proceeding against the other employer by the statute of limitations, he may be entitled to a recovery from the work injury supplemental benefit fund under sec. 102.66, Stats. Finally, permanent partial disability for bilateral hearing loss is computed proportionally using a 216-week base for total deafness, while hearing loss in one ear is computed using a 36-week base. Section 102.555 (4), Stats.

3. Causation.

The first issue in this case is whether the applicant has proven that work caused his disability; that is, whether he has shown an injury arising out of his employment with the employer. As noted above, Dr. Friedman opined that work with the employer caused a hearing loss directly or as a material contributory factor in the progression of an occupational disease, while Dr. Chrzan opines that the applicant's additional hearing loss since 1965 is the result of normal aging and "his original otologic disease."

Dr. Chrzan's opinion is based on the assumption that the applicant's audiograms do not show the type of hearing loss in the particular frequencies that Dr. Chrzan asserts are common in occupational hearing loss cases. However, Dr. Friedman was aware of the high levels of hearing loss at the various frequencies, and he found causation based on an accurate history of employment in a noisy environment. (1)

Further, if occupational exposure to noise could not cause hearing loss above 35 dB in the lower frequencies and 75 dB in the higher frequencies, one would expect the hearing impairment table in sec. 80.25, Wis. Admin. Code, to reflect such a limit, at least with respect to noise-induced hearing loss. However, the table, which the supreme court found was adopted by DILHR after extensive research and discussion, (2) does not. Instead, the table permits compensation of hearing loss which, even on average over four frequencies, may go as high as 93 dB.

On this record, Dr. Friedman's opinion on causation is more credible than Dr. Chrzan's. The applicant, therefore, has established that he has sustained an injury, that at the time of the injury he was performing services growing out of and incidental to his employment, and that the disease causing the injury arose out of his employment with the employer. Section 102.03 (1)(a), (c)1 and (e), Stats. In other words, the applicant has shown a covered injury based on employment with the employer.

4. Extent of disability.

The next issue is the extent of disability, or how much the respondent should have to pay, under sec. 102.555 (8), Stats. As the respondent points out, while a human has a theoretical audio range from 1 to 130 dB, DILHR's rules only compensate hearing loss that rates out between 30 dB and 93 dB. Each decibel of loss in that range is compensated by a 1.6 percent impairment rating, applied to the 36-week or 216-week base mentioned above. Section Ind. 80.25 (8), Stats.

According to the Supreme Court, DILHR has concluded that losing the ability to hear between zero and 30 dB is not an impairment from a "real world" perspective. DILHR has also concluded that "losing" additional decibels beyond 93 dB is not a compensable impairment because, by the time the person has lost the "first" 93 dB, he or she is deaf for all practical occupational purposes anyway. As a result, sec. 80.25, Wis. Admin. Code, compensates hearing loss based on a practical hearing loss scale of 31 to 93 dB. Harnischfeger v. LIRC, 196 Wis. 2d 650, 657, note 2 (1995). The Supreme Court went on to find that this methodology used by DILHR and the commission with respect to pre-employment hearing loss under sec. 102.555 (8), Stats., was entitled to great weight. The Supreme Court affirmed the commission's decision and reversed the Court of Appeals decision setting out an entirely different methodology.

In attempt to simplify the separation of pre-existing loss from post-employment loss, DILHR's Worker's Compensation Division developed a formula to calculate hearing loss without having to interpolate on the hearing impairment table on sec. 80.25 Wis. Admin. Code. The division's formula starts with the current (post-employment) decibel loss, subtracts the pre-employment decibel loss, and then adds in the 30 dB threshold (3) "to get to the proper place on the table." See Margaret O'Connell's February 2, 1987 memo on "Pre-existing hearing loss"; and Harry F. Benkert's November 25, 1986 memo on "Computation of compensation due when there is a pre- existing hearing loss." (4)

However, as Ms. O'Connell's memo recognizes, the division's formula does not yield the correct result when the pre-existing loss is less than 30 dB. For example, a worker who has a pre- existing hearing loss of 25 dB and a current loss of 35 dB would have an 8.0 percent hearing loss by direct application of the table. The department's formula, however, (35 dB minus 25 dB plus 30 dB equals 40 dB) yields a 16 percent impairment. The problem arises because the department's straight arithmetic formula does not take into account the effect of "off-the-table" hearing loss. To fix the problem, Ms. O'Connell set out a different approach on page 2 of her memo.

In this case, the respondent points out that the applicant's pre-employment rating for the right ear of a 95 dB hearing loss already exceeded the 93 dB rating for 100 percent impairment or total deafness under the administrative code. The respondent asserts it therefore should not have to pay for the additional decibel loss to 106.25 dB, because the applicant was already deaf under the code. Likewise, the respondent argues that it should only have to pay permanent partial disability for the left ear at the difference between a 96 percent impairment from a 90 dB pre- employment loss and a 100 percent impairment for total deafness. Even though the loss at the left ear was measured at 110 dB, the respondent asserts that requiring it pay for deafness its employment caused beyond the practical 93 dB loss/100 percent impairment level set by DILHR is incorrect under the methodology approved in Harnischfeger.

The division, on the other hand, using the formula set out above, figured the right ear hearing impairment at 17.6 percent (106.25 dB minus 95 dB plus 30 dB equals 41.25 dB loss, which rates out on the table as a 17.6 percent impairment.) It figured the left ear impairment at 32 percent (110 dB minus 90 dB plus 30 dB equals 50 dB loss, which rates out on the table as a 32 percent impairment.) Applying a five (good ear) to one (bad ear) weighted average, (5) it came up with a bilateral hearing loss of 20 percent.

The commission must reject the division's calculation. This case involves the reciprocal of those cases where a hearing loss below the 30 dB threshold is not compensated because there is no practical loss. Here, the loss of over 93 dB is not compensable because, once that level is reached, the applicant is deaf for all practical occupational purposes. It may be that DILHR should change its table to somehow compensate "off the table" hearing losses but the fact remains they are not compensable under its current rule.

In short, the division's figures are based on a formula that does not work for off-the-table numbers as Ms. O'Connell recognized in her February 2, 1987 memo. The formula and resulting figures simply do correlate with "proper place in the table" in this case. To apply the formula in this case would result in an award that is inconsistent with the hearing impairment table promulgated by DILHR rule.

Instead, the commission uses the approach shown on page two of Ms. O'Connell's February 2, 1987 memo, which yields the following result:


Preexisting Audiogram (1-28-65)

-----500 ---1000 ---2000 ---3000
R ----85 ------85 ----105 ----105 = 380/4 = 95 dB = 100% loss
L ----50 ------85 ----110 -----115 = 360/4 = 90 dB = 96% loss

Current Audiogram (2-28-91)

-----500 ---1000 ---2000 ---3000
R ---110 ----115 ----100 -----100 = 425/4 = 106.25dB = 100% loss
L ---115 ----115 ----110 -----100 = 440/4 = 110 dB = 100% loss

R equals a no loss; L equals a 4% loss.

{5(0) + 4}/6 = 0.667% binaural hearing loss

5. Award.

The respondent is therefore liable for a 0.667 percent binaural hearing loss. Applying this percentage to the 216-week base in sec. 102.555 (4), Stats., results in an award of 1.441 weeks of compensation. (6) The statutory maximum compensation rate for permanent partial disability from injuries sustained in 1992 is $144 per week, yielding a total award of $207.50.

The applicant approved the deduction of a twenty percent attorney fee under sec. 102.26, Stats. The fee in this case works out to $41.50, and it shall be paid to the applicant's attorney within 30 days. The amount remaining to be paid to the applicant within 30 days is thus $166.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

ORDER

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part.

Within 30 days from the date of this decision, the employer and the insurer shall pay all of the following:

1. To the applicant, Dalton F. Norris, the amount of One hundred sixty-six dollars ($166).

2. To the applicant's attorney, James J. Winiarski, the sum of Forty-one dollars and fifty cents ($41.50).

Dated and mailed March 6, 1996
norrida.wrr : 101 : 1  ND 5.19

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

Because the commission reversed solely on a question of law, it did not confer about witness credibility and demeanor with the administrative law judge who presided at the hearing. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972).

cc: ATTORNEY THEODORE T BALISTRERI
OTJEN VAN ERT STANGLE LIEB & WEIR SC

ATTORNEY JAMES J WINIARSKI
LAW OFFICES OF JAMES J WINIARSKI


Footnotes:

(1)( Back ) Dr. Friedman's opinion finds some support in at least one treatise which indicates there is no classic set of clinical criteria or classic audiogram for employment-related hearing loss. 3A Attorneys' Textbook of Medicine, sec. 84A.65 (3) (3d ed. 1995).

(2)( Back ) Harnischfeger, infra, at note 2.

(3)( Back ) A 35 dB threshold was used for injuries before October 1, 1986.

(4)( Back ) Copies of both memos were attached to the ALJ's decision, and are attached to this decision.

(5)( Back ) Section Ind. 80.25 (9)(c), Wis. Adm. Code.

(6)( Back ) There is some force to the argument that since the applicant already had total hearing loss for occupational purposes in the right ear in 1965, he did not have a bilateral hearing loss but only a hearing loss in one ear as a result of his employment with the employer. However, the same award is calculated by applying the full 4% loss in the left ear to the 36-week base for deafness in one ear.


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