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


LARRY CURRY, Applicant

AMPCO METAL INC, Employer

CONNECTICUT INDEMNITY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996058198


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 March 18, 1999
curryla.wsd : 132 : 1  ND 5.19

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant sustained a conceded work injury on October 2, 1996, as a result of a metal furnace explosion. He had second and third degree burns resulting in permanent disfigurement. The disfigurement was rated at 2 percent which was conceded and has been paid. Applicant also seeks compensation for tinnitus. Applicant does not have what is considered under the statute or the administrative code the minimum necessary loss of hearing to be compensable. The respondent argues that Wis. Stat. 102.555(10), specifically states that tinnitus is not compensable absent other compensable hearing loss. It is the department's position that Wis. Stat. 102.555(10), only applies to occupational deafness, not hearing loss resulting from trauma or sudden accident.

Chapter 102 provides for compensation for occupational and accidental/traumatic hearing loss in separate sections. See Wis. Stat. 102.555(10) and Wis. Stat. 102.52 (17) and (18). In 1975, Wis. Admin. Code DWD 80.25 was amended to create (7). (1) In 1985, Wis. Stat. 102.555(10) was enacted by 1985 Wisconsin Act 83, at which time it contained only the first sentence. Thus, it was not until the 1985 amendment that compensation for occupational tinnitus required other compensable hearing loss. Therefore, before such amendment both occupational and traumatically-induced tinnitus had been compensable without any other compensable loss. The 1985 amendment would have been unnecessary if the law had already required other compensable loss for tinnitus related to occupational exposure.

In 1991, the second sentence was added to Wis. Stat. 102.555(10) by 1991 Wisconsin Act 85. Thus, after January 1, 1992, tinnitus was no longer compensable for occupational hearing loss claims even if there was other compensable hearing loss. Neither Wis. Stat. 102.52(17) or (18) nor Wis. Admin. Code DWD 8025(7), were amended to require other hearing loss or "deafness" in order to receive compensation for tinnitus traumatically induced. Since compensation for tinnitus preceded the requirement that other hearing loss occur, and since Chapter 102 distinguishes between traumatic and occupational hearing loss, the only reasonable interpretation of the statutes is that the enactment of and amendment to Wis. Stat. 102.555(10), applied only to occupational hearing loss claims. Traumatically-induced tinnitus remains compensable, as it has been since 1975, even absent other compensable hearing loss.

cc: ATTORNEY ROLAND CAFARO
CASTAGNA EVEN CAFARO & SOULE


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Footnotes:

(1)( Back ) In A. O. Smith Corp. v. Oglesby, 108 Wis. 2d 583 (Ct. App. 1982), the court rejected the contention that DILHR exceeded its authority by effectively increasing compensation due to hearing loss by enacting Wis. Admin. Code IND 80.25. In a footnote the court specifically noted that by Wis. Admin. Code IND 80.25 DILHR allowed compensation for tinnitus which it did not do previously.