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


ADRIAN VANROY, Applicant

THILMANY PULP & PAPER CO, Employer

INTERNATIONAL PAPER CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 96031330


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:

In the last sentence of the sixteenth paragraph of the ALJ's Findings of Fact and Conclusions of Law (the last sentence in the paragraph that starts on page 7 and ends on page 8), delete "of 13.98 percent".

ORDER

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

Dated and mailed June 5, 1997
ND 5.19

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

MEMORANDUM OPINION

In the brief supporting its petition for commission review, the employer raises three issues: (a) did the applicant sustain a compensable hearing loss, (b) if so, is the insurer liable for hearing aids paid before the date of injury, and (c) was there a compensable hearing loss in 1978?

a. Causation.

With respect to the first issue, the commission first notes that the applicant's treating expert, Michael Case, M.D., opined that the applicant sustained sensorineural hearing loss, consistent with noise damage, caused by exposure to loud noise at work. Dr. Case also opined hearing aids were necessary.

Moreover, the report from an independent medical examiner retained by the respondent, Roy J. Dunlap, M.D., also supports a finding of occupational hearing loss. Dr. Dunlap personally examined the applicant, unlike the other medical expert retained by the employer, Joseph Sataloff, M.D. Dr. Dunlap's opinion was that, contrary to Dr. Sataloff's belief, the applicant's hearing loss shown in 1978 audiogram was due to noise exposure. Dr. Dunlap noted the audiogram in fact was in the classic pattern and showed the "characteristic notch" at the 4000 Hz frequency level.

Dr. Dunlap did agree with Dr. Sataloff that by the 1980s some process other than noise induced hearing loss "came into play." Dr. Dunlap opined, however, that the amount of loss due to noise and the amount due to the other process could not be scientifically separated. He also opined that the applicant's underlying conditions of diabetes and arteriosclerotic disease are known to accelerate neurosensory hearing loss in an unpredictable fashion.

Dr. Dunlap went on to diagnose the "other process" as presbycusis. (1) He recommended using the October 1995 audiogram as the best approximation of hearing loss. He also noted that the Wisconsin formulas do not allow for an apportionment of hearing loss due to presbycusis. Using the October 1995 audiogram, he rated the applicant's bilateral hearing loss at 40.8 percent.

In a follow-up letter to the applicant's attorney, Dr. Dunlap stated that the only ascertainable causes of the applicant's hearing loss were occupational noise exposure and presbycusis. Dr. Dunlap re-affirmed that the applicant did have noise induced hearing loss, and that this combined with his presbycusis has left him with very poor hearing. He stated that the noise exposure at Thilmany Paper Company and its predecessors has significantly contributed to the applicant's disability.

The commission is satisfied the ALJ properly found that the applicant sustained occupational hearing loss caused by his job for the employer. IME Dunlap, after all, found the applicant suffered noise induced hearing loss caused by work. Dr. Dunlap's opinion may only be reasonably read to mean that the applicant sustained the noise induced loss both before and after 1978, although after 1978 the condition progressed in concert with presbycusis. Dr. Dunlap specifically rejected IME Sataloff's contrary opinion that the 1978 audiogram did not show the classic pattern. Indeed the dramatic loss at the higher frequencies with the "notch" at 4000 Hz is apparent even to a layman's view of the 1978 audiogram.

The commission was also troubled by Dr. Sataloff's statement that "the records of noise exposure show that [the applicant] has not been exposed to sufficient noise to produce a significant degree of hearing loss . . ." The doctor does not explain that comment, and certainly nothing in the record rebuts the applicant's testimony that the noise in the bag room was equivalent to several men firing shotguns in sequence. Indeed, the record establishes that, beginning in 1978, the applicant began wearing ear protection following the recommendation of Dr. Ward that the level of occupational noise exposure be reviewed and "more adequate" sound protection be supplied if necessary.

In short, the commission accepts Dr. Dunlap's opinion that the hearing loss up to 1978 was noise-induced, and the loss thereafter was a combination of noise-induced loss and presbycusis. Dr. Dunlap points out that there is no scientific way to separate the post-1978 hearing loss due to presbycusis from the noise-induced occupational loss. The law agrees that the two causes of hearing loss may not be separated; the last sentence of sec. DWD 80.25 (4), Wis. Admin. Code, flatly states that no deduction for presbycusis may be made in the formula for determining compensation for occupational hearing loss.

The commission considered the respondent's assertion that the applicant was exposed to loud noise in his hobbies which included deer hunting and the use of power tools in woodworking and powersawing. However, the commission declines to speculate that the applicant's hobbies were the cause of his hearing loss, particularly in the face of the opinions of Drs. Dunlap and Case and the applicant's testimony about the level of noise at work.

The commission also considered the respondent's assertion that the applicant's hearing loss could have been due to ear trouble unrelated to employment such as a boil in his ear. However, while Dr. Sataloff did mention a history of ear infections, he did not opine that the ear infections or the boil were responsible for the hearing loss. Instead, Dr. Sataloff only recommended further audiologic and otologic evaluation. Thereafter, of course, the respondent had the applicant's hearing loss evaluated by Dr. Dunlap who reported no cause for the applicant's hearing loss other than occupational noise exposure and presbycusis.

b. "Retroactive" payment of medical expenses for hearing aid.

The next issue is whether the employer is liable for the cost of hearing aids purchased by the applicant before the "date of injury" set by the applicant's retirement in 1994. Exhibit E indicates the applicant purchased one set of hearing aids in 1984 and another in 1991.

Prior to 1986, the administrative code expressly stated that there was no known medical or surgical treatment for improving or restoring noise induced hearing loss. See, for example, sec. IND 80.25 (6), 1981 Wis. Admin. Code. This broad statement might seem to rule out compensation for any treatment expense, including hearing aids, for occupational hearing loss before 1986. In 1986, however, the advisory council clarified the meaning of this provision, by adding a sentence specifically permitting reimbursement of the expense of a hearing aid, if prescribed by physician. See for example, sec. DWD 80.25 (6), Wis. Admin. Code.

One could argue either way whether a hearing aid was compensable prior to 1986. However the commission does not believe that question need be addressed in this case. The date of injury in this case is set by statute at the applicant's last day of work, Wis. Stat. 102.555 (4), and the law in effect on that day governs this case under Wis. Stat. 102.03 (4). As the date of injury here is November 30, 1994, the state of the law in 1986 does not really matter; by 1994 the code specifically authorized reimbursement of expenses for hearing aids. The real question is whether medical expenses incurred before a date of injury may be paid under any circumstance.

The parties cite the commission two cases on this point: Adams v. Cub Foods, WC claim no. 91-07432 (LIRC, March 31, 1993) (which in dicta suggests that medical expenses incurred before the date of injury in occupational disease cases are not compensable) and Carla Vaquera v. Wisconsin Porcelain Co., Inc. WC claim no. 94047791 (LIRC, December 4, 1996) (which holds that such expenses are compensable and the date-of-injury insurer is liable.) In Adams, of course, the commission was not actually faced with a case where an injured worker claimed compensation for medical expense incurred before the date of injury. Rather, Adams involved the issue of which of two insurers was liable for applicant's conceded carpal tunnel condition, an issue that turned on whether the onset of symptoms and subsequent medical treatment without lost work time could trigger a date of injury for occupational disease.

The case now before the commission deals with occupational hearing loss. This case does not involve a general occupational disease claim where the date of injury may be the first day of lost wages from lost work time caused by the condition. (2) Rather, a worker with an occupational hearing loss must pick a date of injury from the limited choices set by statute. These choices do not involve lost work time due to occupational disease, but rather the endpoint of "noisy employment." In this case, the only date of injury possible was the applicant's last day of work. (3) Thus the holdings in the Adams and Vaquera cases, which do not involve occupational hearing loss, are not on all fours with the facts of this case.

Moreover, Wis. Stat. 102.42 (1), specifically authorizes the retroactive payment of medical expenses incurred before a worker knows or should know his condition is from occupational disease. The department has explained the intention of this provision:

"There is provision for payment of expense for treatment procured by an employe who does not learn until later of the nature of his disability, or its relation to employment. Formerly, no liability would have existed unless and until notice had been given. In cases such as tuberculosis following silicosis this worked hardship on an employe, who although reasonably diligent, could not give notice of necessity for treatment because the employe had not yet learned the nature of his or her disability and its relation to employment."

DWD's Workers Compensation Act of Wisconsin with amendments to January 1, 1996, footnote 126.

Short of quitting his job, the applicant simply could not have established a date of injury any earlier than November 30, 1994. The fact that he did not establish a date of injury before buying his first hearing aid was not due to a lack of diligence on his part. While this situation may not fit squarely in the "knew or should have known" language in Wis. Stat. 102.42 (1), it does fit within the intention behind that language.

In addition, as the ALJ pointed out, the employer knew the applicant had sustained a hearing loss by the time he bought his first hearing aid in 1984. The employer's own audiograms showed the loss, and as early as 1978 Dr. Ward opined the loss was due to noise exposure and suggested work as a cause. Dr. Dunlap made the definitive diagnosis of occupational hearing loss going back to 1978 in his August 1996 reports. Thus, paying the hearing aid expense is a reasonable construction of the law given the remedial nature of the workers compensation statute and the act's evident purpose of providing injured workers with prompt and comprehensive medical care for work injuries. UFE, Inc. v. LIRC, 201 Wis. 2d 274, 288 (1996).

Finally, one purpose of denying retroactive medical expenses would be to prevent an injured worker from incurring frivolous or unnecessary expenses without the knowledge of the employer or its insurer. That concern is considerably lessened where, as here, a prescribed hearing aid is recognized by rule to be a reasonable medical expense in hearing loss cases. The commission concludes that the ALJ properly ordered the compensation of the hearing aids which the applicant purchased in 1984 and 1991. (4)

c. Loss based on the 1978 audiogram.

The respondent last asserts that the ALJ miscalculated the hearing loss shown on the applicant's 1978 audiogram, although the respondent admits the audiogram establishes some compensable loss. However, because the parties stipulated to using the March 1996 audiogram as the basis for determining the award and because this is not a case where an offset is claimed under Wis. Stat. 102.555 (8), the commission is not certain that determining the actual level of hearing loss in 1978 is necessary.

cc: ATTORNEY PETER S NELSON
MENN NELSON SHARRATT TEETAERT & BEISENSTEIN LTD

ATTORNEY DOUGLAS JOHNSON
JOHNSON LAW OFFICES


Appealed to Circuit Court. Affirmed January 8, 1998.

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Footnotes:

(1)( Back ) In laymen's terms, sensorineural hearing loss due to aging.

(2)( Back ) General Casualty Co. v. LIRC, 165 Wis. 2d 174, 180 (Ct. App. 1991).

(3)( Back ) See: Wis. Stat. 102.555 (4)(b). Inasmuch as the applicant testified that he continued to wear hearing protection in the decorating department, the commission cannot conclude that the applicant could have opted to choose the date of his transfer there as a "transfer to non-noisy employment" triggering a possible date of injury under Wis. Stat. 102.555 (4)(a).

(4)( Back ) The employer asserts that there is no medical proof that at the time the applicant bought the hearing aids he did so to cure or treat work-related hearing loss. Of course, the record documents work-related hearing loss as early as 1978, both in the February 1978 note of Dr. Ward and the report of Dr. Dunlap. While hearing loss may have increased after 1978 in concert with presbycusis, the applicant's hearing loss was still causally-related to work. The only reasonable inference is that the hearing aids were purchased to cure and relieve the effects of the occupational hearing loss.