STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
WERNER R. WEISS, Applicant
WEYERHAEUSER COMPANY, Employer
WORK INJURY SUPPLEMENTAL BENEFIT FUND, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 89-001113
The applicant submitted a petition for Commission review alleging error in the Administrative Law Judge's Findings and Order issued on December 6, 1989. On April 18, 1990, the Commission issued its Findings and Order reversing those made by the Administrative Law Judge. The employer appealed the Commission's decision to the Circuit Court of Marathon County Branch 4, and on November 14, 1990, the Honorable Vincent K. Howard issued a decision which reversed the Commission's Findings and Order. Judge Howard remanded the matter to the Commission in accordance with the holding of his decision.
The Commission has once again reviewed the record in this matter and hereby makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The applicant began his employment in the paper mill in 1948 when the mill was owned by Marathon Corporation. Subsequently, the mill was purchased by American Can Company, and in 1973, American Can sold it to Weyerhaeuser Company. Throughout these three ownerships the applicant worked in the wood chip room, where he was exposed to loud noise, and had to yell in order to be heard by co-workers. Dr. John Flannery credibly opined that as a result of this prolonged exposure to loud noise, the applicant sustained a binaural occupational hearing loss. The applicant retired from this employment effective October 23, 1987. In accordance with the option provided in section 102.555 (4), Stats., the applicant has chosen this date as his date of injury.
Utilizing the method for determining percent of hearing impairment found in Wisconsin Administrative Code Section Ind. 80.25, in effect on October 23, 1987, the applicant's binaural hearing loss, according to an October 1972 audiogram, was 17.87 percent. This loss is not compensable since it is time barred against the applicant's pre-1973 employers under section 102.17 (4), Stats.; and it is not payable under section 102.66, Stats., because the binaural loss does not exceed 20 percent, as required by section 102.555 (11), Stats.
Dr. Frederic Schmidt authorized performance of an audiogram on April 7, 1989, and the results differed somewhat from those obtained in a December 1988 audiogram performed by Dr. Flannery. Dr. Flannery's audiogram is accepted as being accurate, because he submitted results from a series of audiograms performed on the applicant between 1975 and 1988, and these are consistent in showing a minimal progression of hearing loss throughout that period of time. The opinions of both physicians lead to the credible inference that the applicant also has bilateral tinnitus attributable to the occupational noise exposure. Dr. Flannery noted that the applicant had experienced difficulty with ear infections, but opined that these had not contributed to his hearing loss. He further opined that there was no conductive component to his hearing loss, which was all sensorineural in type and caused by exposure to industrial noise. Dr. Schmidt did not contradict Dr. Flannery's opinion in this regard, and Dr. Flannery's opinion is accepted as credible.
Also utilizing the 1987 calculation methods, the applicant's binaural loss as shown by the December 1988 audiogram, less the preexisting loss, was 27.13 percent. This includes 5 percent for tinnitus. The net binaural loss was calculated as follows:
|R||56.25 db||Minus||38.75 db|
|L||63.75 db||Minus||51.25 db|
NONCOMPENSABLE 1972 LOSS
|R||17.50 db||Plus||30 db|
|L||12.50 db||Plus||30 db|
DECIBEL LOSS IN PERCENTAGES
|R||47.50 db||28.8 percent|
|L||42.50 db||20.8 percent|
CALCULATE UNDER Ind. 80.25 (4)
(5(20.8) plus 28.8)/6 equals 22.13 percent plus 5 percent tinnitus.
The liable employer for this net binaural loss is the employer at the time of retirement, Weyerhaeuser Company. A 27.13 percent binaural loss when multiplied times the potential maximum loss of 216 weeks, results in 58.60 weeks of compensation. The applicable rate for permanent partial disability in 1987 was $117 per week, resulting in a total award of $6,856.20. A 20 percent attorney's fee will be deducted in the amount of $1,371.24.
NOW, THEREFORE, this
The decision of the Administrative Law Judge is reversed in part and the Commission's Findings and Order are substituted therefor. Accordingly, within 30 days from this date, Weyerhaeuser Company shall pay to the applicant compensation in the amount of Five thousand four hundred eighty-four dollars and ninty-six cents ($5,484.96); and to applicant's attorney, Thomas J. Molinaro, the sum of One thousand three hundred seventy-one dollars and twenty-four cents ($1,371.24). The Commission's reversal of the Administrative Law Judge's decision was based on his inaccurate calculation of the applicant's compensable hearing impairment. Credibility of the applicant, who was the only witness at the hearing, was not at issue.
Dated and mailed April 16, 1991.
ND § 5.19
/s/ Kevin C. Potter, Chairman
/s/ Carl W. Thompson, Commissioner
/s/ Pamela I. Anderson, Commissioner
cc: Margaret O'Connell
W. C. Division
c/o Kathleen Pipkin
Stephen M. Sobota
Assistant Attorney General
Department of Justice
Peter L. Hessert, Attorney
Patterson, Richards & Hessert
Thomas J. Molinaro, Attorney
Brady & Molinaro, S.C.
185 - CD8720
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