Opinion
No. BM-415.
February 16, 1988. On Motion for Rehearing July 7, 1988.
Petition for review from the Deputy Commissioner, Melanie Jacobson.
Janis Brustares Keyser of Reid Ricca, P.A., West Palm Beach, for appellant.
David A. Danielson, West Palm Beach, Debra Levy Neimark, of Neimark Neimark, Coral Springs, for appellee.
The employer and carrier (E/C) appeal from a workers' compensation order awarding claimant temporary partial disability benefits, medical benefits, rehabilitation expenses, penalties, interest and costs, and attorney's fees. We reverse.
Claimant, a twenty-six year old welder, first worked for RCI in New York in 1980. In 1982, while in New York, claimant sustained an on-the-job injury when he fell at work and struck his head causing bleeding from his left ear. Claimant was diagnosed by medical doctors as having a severe bilateral sensorineural hearing loss, such loss being progressive in nature. As a result of the accident, claimant had to wear a hearing aid in both ears. The workers' compensation claim filed in the New York accident is separate from the claim presently before us.
In June 1984 claimant transferred to the Florida Division of RCI. He worked with this division until May 1985. According to claimant, in his present workers' compensation claim, it was during this eleven-month period that he sustained an aggravation of his preexisting hearing disorder as a result of repetitive exposure to loud noise in the workplace. The E/C denied compensability claiming that the claimant's increased hearing impairment was a consequence of progressive deterioration from the New York accident. A hearing was held before the deputy commissioner.
The evidence revealed that RCI is in the business of steel fabrication, a process which necessarily involves loud noise in the workplace. While in New York, claimant was employed as a supervisor and worked mostly in the office. After moving to Florida, he was employed as shop foreman and was in the shop approximately 95% of the time, where loud noises prevailed most of the time.
An audiologist, Richard McCombs, testified on behalf of the claimant that he had tested the claimant's hearing and determined that the claimant had sustained a very significant hearing loss of 8 to 10 decibels between August 1984 and August 1985, a loss which he opined was greater than would have occurred from the increasing impairment associated with the claimant's preexisting hearing disorder. He also opined, over the E/C's objection, that this increased hearing loss was caused by the claimant's repetitive exposure to loud noise in the workplace.
The E/C objected to the admission of the audiologist's above opinions, asserting that the witness' competency to render such opinions had not been demonstrated and that only a medical doctor would be competent to express opinions on such subjects. The deputy overruled the E/C's objections.
The deputy entered an order finding the claimant's hearing loss compensable and awarded temporary partial disability benefits, medical benefits, rehabilitative expenses, penalties, interest, costs and attorney's fees.
The basic issue presented on this appeal — an issue which is dispositive of the case — is whether the deputy commissioner erred in allowing McCombs to testify as to his above referred opinions and, if so, whether, absent such testimony, there was competent, substantial evidence to support the deputy's finding of a causal relationship between the claimant's hearing loss and his exposure to noise at his workplace.
There is very little in the record of this case which would suggest that McCombs was competent to render the subject opinions. He testified that he was licensed by the State of Florida and was employed as a hearing aid specialist by a hearing aid firm in the Palm Beach Mall. It is significant that this witness' testimony contained a number of self-depreciating statements regarding his competency as an expert witness. For example, he said, "I am purely for the purpose of testing individual's hearing impairments and for the purposes of fitting hearing aids, nothing more, due to the fact that I am not a medical audiologist." He continued, "I am a dispenser for hearing aids and my area is to test to see how well they qualify for hearing aids."
McCombs was allowed, over objection, to testify that he thought that claimant's increased hearing impairment over the period between August 1984 and August 1985 was greater than the progression that could be expected from the sensorineural loss alone. To the question — again objected to — as to whether such accelerated hearing impairment was "consistent with being exposed to the noise" at his job in West Palm Beach, McCombs replied, "I would think so myself, but there again, I can go only into statistics with that kind of an answer."
We do not know what "statistics" the witness was referring to since none were cited.
McCombs described himself as a "hearing aid audiologist" and, as noted, said that he was licensed by the State of Florida. His licensure is presumably under Chapter 468, Part I, Florida Statutes (1985). Essentially, he indicated that he was licensed only as a hearing aid "dispenser" as contrasted with what he referred to as a "medical audiologist." There are no such audiologist classifications in Chapter 468 or the rules thereunder and we have been referred to no other source supporting such classifications.
Interestingly, no reference has been made by the parties, either in the proceedings below or here, to Chapter 468 or to the administrative rules promulgated thereunder, to wit: Fla.Adm. Code Rule 6A-10.008 et seq., which are the statutory and rule provisions governing the practice of audiology.
McCombs testified that physicians regularly refer patients to him for the determination of the degree of hearing loss the patients have sustained. According to McCombs, if a person has a medical problem or "mixed hearing impairment," McCombs would need clearance through a physician or a prescription before he could fit the person with a hearing device. However, for a nerve deafness hearing problem, McCombs said that physician intervention is not needed since there is nothing medically that can be done to help this type of hearing loss.
Even accepting the above representations by McCombs, the fact that he is competent to measure the loss of hearing experienced by one who has a sensorineural impairment and to dispense a hearing aid device to such person without the intervention of a medical doctor does not suggest competence on his part to render an opinion as to the cause of the claimant's accelerated hearing loss during the relevant period. In fact, his competence to render an opinion that the claimant's actual hearing loss was greater than that claimant would have experienced from the pre-existing sensorineural impairment is not supported by this record.
The decision as to whether a proffered expert witness possesses the necessary expertise is a matter within the sound discretion of the trial court and will not be disturbed unless clearly erroneous and prejudicial to the adverse party. Quinn v. Millard, 358 So.2d 1378 (Fla. 3rd DCA 1978); Executive Car and Truck Leasing, Inc. v. DeSerio, 468 So.2d 1027 (Fla. 4th DCA 1985.) Of course, the burden is on the party calling the expert witness to establish that he is qualified in the field in which he is called upon to testify. GIW Southern Valve Co. v. Smith, 471 So.2d 81 (Fla. 2nd DCA 1985). And when a witness is called upon to go beyond his expertise, he should not be allowed to testify in terms of expert opinion. Ehrhardt, Florida Evidence § 702.1 (2d Ed. 1984); see also Machado v. Foreign Trade, Inc., 478 So.2d 405, 408 (Fla. 3rd DCA 1985) (trial court properly refused to permit a qualified document analyst to give his opinion on matters which the witness himself conceded he was not an expert).
We hold that it was error for the deputy commissioner to permit McCombs, over proper and timely objection, to render expert opinions where the evidence failed to show his competency to render such opinions. Our holding should not be understood as one which precludes any audiologist from rendering the kinds of opinions elicited from McCombs. We merely hold that the record of this case fails to demonstrate competence of this witness to render the opinions elicited. Compare Texas Employers Insurance Ass'n v. Fisher, 667 S.W.2d 589 (Tex. Ct. App. 1984) (properly qualified audiologist held competent to render opinion regarding cause of hearing loss). We do not go so far as to hold — as urged by the E/C — that the expert must necessarily be a medical doctor.
Absent the improper opinion testimony of the audiologist, there was not competent substantial evidence to support the deputy's finding of a causal relationship between the claimant's exposure to noise at the West Palm Beach plant and his diminished hearing capacity.
Because we reverse on this issue regarding compensability, we need not reach the other two issues which involve the determination of average weekly wage and the imposition of interest and penalties.
REVERSED.
JOANOS, J., concurs.
BOOTH, J., dissents with written opinion.
ON MOTION FOR REHEARING
Having considered the appellee's motion for rehearing, we grant the motion in part and amend the earlier opinion in this case to conclude by reversing the order on appeal and remanding to the deputy for the taking of further evidence on the causation issue rather than merely reversing. We believe that the general principle applicable to this case is that where reversible error is committed with respect to the admission or exclusion of material evidence, the matter should be reversed with directions to provide a new hearing. See: 5 Am.Jur.2d, Appeal and Error § 974 (1962) and 5B C.J.S. Appeal Error § 1939 (1958).
In all other respects, appellee's motion for rehearing is denied, and our previous opinion unchanged.
BOOTH and JOANOS, JJ., concur.
NIMMONS, J., dissents with written opinion.
Claimant has established that while he worked in the employer's Florida metal shop: (1) working conditions required almost constant exposure to high noise levels; (2) he experienced the onset of constant ringing in his ears and increased inability to hear; and (3) he sustained a significant hearing loss shown by hearing tests. These matters were properly provable without the testimony of a medical expert, and based on the logical cause doctrine, the award of benefits should be affirmed.
The employer/carrier's defense was that claimant's present hearing loss was due to progression of the preexisting injury claimant sustained while working for the same employer in New York. Expert testimony was needed to prove this defense but was not forthcoming. Nor did the employer/carrier adduce evidence for apportioning the loss of hearing sustained between the injury occurring in New York and that occurring in Florida.
As for Mr. McCombs, the audiologist, he was clearly competent to testify to the results of the tests he gave claimant in 1984 and 1985, and to the loss of eight to ten decibels occurring within that period. That error, if any, of admitting his testimony concerning the possible cause of such a loss, does not call for reversal. As ground for reversal on appeal, appellants cite the admission of McCombs' testimony that "if claimant was working around noisy equipment, his hearing impairment would increase that much faster." This testimony is cumulative of evidence from the physicians who examined claimant in connection with his prior ear injury and to the statement made to claimant by Mr. Fink, vice president of the employer. The employer/carrier, in fact, relies on this cumulative evidence to support their contention that claimant contributed to his increased hearing loss by working around high levels of noise despite advice to the contrary given him after the first injury. Their objection to similar evidence from McCombs was properly denied.
McCombs also testified that the amount of hearing loss he measured for the 11-month period was significantly greater than would be expected from the normal progression of the prior impairment. That testimony, objected to below and recited in the facts on appeal, is not argued by appellant as a basis for reversal. Perhaps appellants recognize the weakness of a competency objection when addressed to this type of testimony by a qualified nonmedical audiologist whose primary function is to deal with the progression of sensorineural hearing loss by dispensing increasingly more powerful hearing aids. The record shows that there is no medical treatment for sensorineural loss, claimant's previously-diagnosed condition. An "audiologist" is, by definition, a person skilled in the science of hearing, particularly the study of impaired hearing which cannot be improved by medical or surgical means. Mr. McCombs testified that an individual with such impairment is referred to him in order that he may determine the degree of hearing loss and fit a hearing aid.
Claimant testified that while working as shop foreman for the employer in Florida, he was exposed to high levels of noise in fabricating metal tanks and experienced increasing ringing in his ears as well as noticeable loss of hearing. In less than a year, his hearing aid had to be replaced twice. He testified that he reported his problem to Mr. Fink, who advised him that "he [Fink] had normal hearing and he couldn't believe how loud it was and I [claimant] had a hearing aid in and it amplifies any loud noise through my hearing aid." The record shows that claimant was required to wear hearing aids in both ears as a result of the prior injury on the job with this employer in New York and that without the hearing aids, he could not hear and therefore could not safely perform the work. The employer was, of course, aware of claimant's impairment when it moved him to Florida after his first injury and placed him in a job that required exposure to high levels of noise.
The record supports the order of the deputy on causation, which order is, in pertinent part, as follows:
I find that the Claimant did sustain an aggravation and acceleration of his pre-existing hearing difficulties as a result of his exposure to repetitive, loud noises at RCI-SSD. Noises to which the Claimant was exposed were obviously quite substantial, as evidenced by the testimony of the Employer/Carrier's own witnesses.
I accept the Claimant's testimony that his supervisors were aware of the increased problems the Claimant was having with his hearing and indeed had recommended that he consider removing himself from the work environment by seeking other employment.
The Claimant obviously had a pre-existing hearing problem which was progressive in nature. The Employer was aware of this pre-existing permanent problem at the time they hired him. However, the evidence is overwhelming that the Claimant had a substantial increase in his hearing problems which could not be attributable to the natural progression of his pre-existing problem. The Claimant went through several sets of new hearing aids during the course of his employment with RCI-SSD. He testified to the deterioration of his hearing and the loud noises which he was subjected to. I accept the Claimant's testimony. Furthermore, I accept the testimony of the attending audiologist, Richard McCombs, that the rapid progression of the Claimant's hearing problem during the relatively short period of time he was employed at RCI-SSD was far greater than would be experienced with the natural progression of the Claimant's pre-existing hearing difficulties. I find that the Claimant's present hearing difficulties are related to the aggravation or acceleration of his pre-existing condition resulting from the repetitive exposures to the noisy environment at RCI-SSD and specifically reject the Employer/Carrier's contention that the Claimant's present problems are the result of the natural progression of his hearing loss.
The Claimant presently has significant bilateral hearing loss. He wears a hearing aid in each ear and has difficulty hearing conversation, particularly when there is any other noise or conversation taking place at the same time. However, the Claimant's difficulties were obvious and evident at times during the controlled environment of the Hearing Room where conversation was generally on a one-on-one basis. From time to time during the course of the hearing the hearing aids would produce what the Claimant described as "feedback" which is an audible high pitched whine produced from the hearing aids. The Claimant wears the hearing aids on the maximum volume in order to have them magnify the external sounds so that he can make them out. Without the hearing aids the Claimant cannot hear and understand conversation at all.
The Claimant is only 26 years old. Based upon my observation of the Claimant and the evidence presented, there is no question in my mind that the Claimant is in dire need of immediate rehabilitation evaluation and possibly retraining. It is doubtful he will return to the types of occupations for which he previously has experience, and there is raised the possibility that he could reach the point where hearing aid devices would be ineffectual. . . .
I would affirm the order below as to compensability and remand for further proceedings in accord with appellants' points II and III on penalties, interest, and average weekly wage.
I would adhere to the court's original opinion in its entirety.
We are apparently now going to allow the claimant to present other evidence — if any he has — on the issue of causation because he chose to rely in the first trial on evidence which was held to be inadmissible. I believe this is a mistake. The erroneous admission of the audiologist's testimony on behalf of the claimant clearly did not prevent him from fully developing his side of the case. I therefore dissent from the opinion on rehearing.