Opinion
CLAIM NO. E303075
OPINION FILED MARCH 11, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE PHILIP E. KAPLAN and the HONORABLE SILAS H. BREWER, JR., Attorneys at Law, Little Rock, Arkansas.
Respondent represented by the HONORABLE PHILLIP P. CARROLL, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
OPINION AND ORDER
[2] The claimant appeals and the respondent cross-appeals an opinion and order filed by the administrative law judge on July 22, 1996. In that opinion and order, the administrative law judge found that the present claim is not barred by the statute of limitations. In addition, the administrative law judge found that the claimant has failed to prove by a preponderance of the evidence that he sustained hearing loss causally related to his employment with the respondent.After conducting a de novo review of the entire record, we find that the respondent failed to prove by a preponderance of the evidence that the present claim is barred by the statute of limitations. In addition, we find that the greater weight of the evidence indicates that the claimant has sustained a 0% impairment rating under the AMA Guides formula. Therefore, we find that the administrative law judge's decision in these regards must be affirmed. However, we also find that the claimant proved by a preponderance of the evidence he sustained hearing loss causally related to his employment with the respondent, and we find that the claimant proved by a preponderance of the evidence that amplification devices are reasonably necessary for treatment of his compensable injury. Therefore, we find that the administrative law judge's decision in these regards must be reversed.
The claimant is a 52 year old man who began work for the respondent on March 3, 1966, and is still employed by the respondent. Before beginning work for the respondent, the claimant worked at a service station, at a Firestone Store, and at Borden Milk Company.
With regard to his work-related duties for the respondent, the claimant testified that he began work for the respondent in the labor pool, in the raw material section, where his primary duty was cleaning up around the crusher in Building 10. The claimant testified that the work around the crusher was very noisy. The claimant testified that he later began shift work working beside electric motors and then went back to the crusher operation in Building 10. The claimant went back to shift work operating an end loader for approximately two years and then running a dozer for approximately three to four years. The claimant testified that both the dozer and the crusher were very noisy.
The claimant then went into a building maintenance apprentice program in 1981 and has worked in building maintenance since that time. The claimant testified that he periodically works in noisy areas in that capacity.
With regard to the claimant's non-work-related noise exposure, the claimant's answers to interrogatories indicate that the claimant went deer hunting approximately thirteen (13) years ago and wore hearing protection at that time but has not hunted since. In addition, the answers to interrogatories indicate that the claimant owns a chain saw and a farm tractor that he uses occasionally but that the claimant wears hearing protection when he uses it. According to the answers to interrogatories, the claimant first noticed a ringing in his ears in 1979 which he reported to the dispensary at ALCOA.
On March 2, 1993, the claimant filed the present claim for workers' compensation benefits related to an alleged work-related hearing loss. The respondent asserts, in part, that the present claim for workers' compensation benefits is barred by the provisions of Ark. Code Ann. § 11-9-702(a)(1) (1987).
Since the claimant seeks workers' compensation benefits for an alleged work-related injury which manifested itself prior to July 1, 1993, this claim is governed by the provisions of the Arkansas Workers' Compensation Law as it existed prior to the amendments of Act 796 of 1993. In this regard, Ark. Code Ann. § 11-9-702(a)(1) (1987) provides in relevant part:
(a) TIME FOR FILING. (1) A claim for compensation for disability on account of an injury . . . shall be barred unless filed with the commission within two (2) years from the date of injury.
An obvious threshold question whenever the statute of limitations is at issue involves the determination of when, and if, the limitations period commenced to run. Our Courts have held on numerous occasions that the statute of limitations for workers' compensation claims does not commence to run until the injury causes an incapacity to earn the wages which the employee was receiving at the time of the accident and until the incapacity continues long enough to entitle him to benefits under Ark. Code Ann. § 11-9-501(a) (1987). See, e.g., Hall's Cleaners v. Wortham, 311 Ark. 103, 842 S.W.2d 7 (1992); Cornish Welding Shop v. Galbraith, 278 Ark. 185, 644 S.W.2d 926 (1983); Donaldson v. Calvert-McBride Printing Co., 217 Ark. 625, 232 S.W.2d 651 (1950); Arkansas Louisiana Gas Co. v. Grooms, 10 Ark. App. 92, 661 S.W.2d 433 (1983); Shepherd v. Easterling Construction Company, 7 Ark. App. 192, 646 S.W.2d 37 (1983). In this regard, the Arkansas Supreme Court has characterized Arkansas as a "compensable injury" state because the statute of limitations does not necessarily begin running on the date of the accident. Wortham, supra. Instead, the limitations period does not begin running until the injury becomes compensable. Id. In Wortham, the Court explained this as follows:
In Donaldson, this court held that, for purposes of commencing the statute of limitations under § 11-9-702(a)(1), the word "injury" is to be construed as "compensable injury," and that an injury does not become "compensable" until (1) the injury develops or becomes apparent and (2) claimant suffers a loss in earnings on account of the injury. Donaldson, 217 Ark. at 629-631, 232 S.W.2d at 654. Thus, the statute of limitations does not begin to run until both elements of the rule are met. Therefore, Arkansas is technically a "compensable injury" state. . . .
In the present claim, the respondent acknowledges on appeal that there is no evidence in the record suggesting that the claimant ever suffered any loss of earnings or any loss of earning capacity attributable to his hearing condition prior to March 2, 1993, when the claimant filed his claim for workers' compensation benefits. Therefore, we find that the statute of limitations does not bar this claim. Consequently, we find that the decision of the administrative law judge in this regard is correct and must be affirmed.
With regard to the noise levels and hearing protection at the respondent's facility, Ms. Irene Schiefler testified that she took a transfer to the Bauxite facility from Comfort, Texas in 1984. Ms. Schiefler testified that she has held the positions of safety supervisor, safety manager, safety and industrial hygiene manager, and is now the environmental health and safety manager. Ms. Schiefler testified that when she arrived in 1984, the Bauxite facility had all of the components of a standard hearing conservation program present, including audiometer testing, noise surveys, dosimetry exposure studies, training programs, noise control engineering solutions, and administrative controls to try to reduce noise exposure at the facility.
Ms. Schiefler testified that on April 1, 1989, ALCOA lowered the permissible unprotected noise exposure level from 90 decibels to 85 decibels. With regard to the availability of hearing protection prior to her employment, Ms. Schiefler testified that she had reviewed a 1960 letter which suggested that ear muffs may have been in some facility buildings (ball mill buildings) as early as 1957. A December, 1967 memorandum offered into evidence indicates maximum daily exposure times for unprotected workers in certain areas and advises that hearing protection must be worn by anyone intending to work in the designated areas in excess of the listed maximum permissible unprotected daily exposure time. The 1967 memorandum indicated that it was ALCOA's intention to intensify its program of testing employees for hearing losses, and that employees working in the designated areas would receive annual audiograms. A memorandum dated April 10, 1975 indicated that all persons scaling the digesters, flash tanks, blow off tanks or other vessels would be required to wear ear plugs and ear muffs effective immediately. Ms. Schiefler testified that ALCOA ceased scaling precipitators because of technology changes in 1985 and stop scaling digestors for the most part in 1990.
A December 6, 1988, letter from Dr. H. Dean Belk, at the ALCOA Pittsburgh office to Ronald Kuerner at the Arkansas Operators advised the following:
In recent years plant personnel in Health and Safety have implemented additional measures at Arkansas Operations to prevent high-noise-induced injury to employees. Unfortunately to date these efforts have not produced adequate hearing protection for all employees at risk, and I know you share concern with me about this. The purpose of this memorandum is to bring this matter to your attention so that necessary managerial and supervisory support for hearing conservation may be assured.
Attached for your information are summarized results of audiometric testing by ALCOA plants in 1987 and results from 1986 (Attachment 1). The percentage of employees exhibiting injury to hearing varied widely among plants. At some plants testing demonstrated an undesirable trend with high percentages of high-noise-exposed employees demonstrating injury to hearing (permanent hearing change) in 1987. Unfortunately Arkansas fell into the group of plants having the worst experience.
Changes in hearing related to age contribute to some of the loss of hearing we observe on testing, but from the attached bar graph (Attachment 2) it is evident that high noise exposure probably is a predominant cause for hearing loss. [Emphasis Added]
In response, Ms. Schiefler prepared a memorandum to Mr. Keuerner dated December 28, 1988. In that memorandum, Ms. Schiefler noted with regard to Dr. Belk's data from 1986-1987 that "this was the first year that the plant was able to get sufficient retesting (follow-up visits) to accurately determine the scope of the problem." Ms. Schiefler's 1988 memo indicated that the facility was in the process of identifying those employees with permanent shifts (i.e., permanent hearing loss) which were attributable to noise and those employees which had permanent shifts for other reasons. The memo goes on to state that area noise surveys were currently being conducted throughout the plant, and that a Noise Control Engineering Seminar was planned for plant engineers.
In addition, the memo indicated that baseline noise surveys had been completed for all production classifications, that new computerized audiometric testing equipment would soon be installed in the dispensary, and that future audiograms would be performed at the beginning of shifts (to avoid performing audiograms after short-term exposure to noise during a shift which can cause invalid hearing loss test results.) Finally, the memorandum indicated that employees would be advised in writing to wear hearing protection in listed high noise areas, and that employees would be advised that the hearing protection rule would be strictly enforced. However, at the hearing, Ms. Schiefler acknowledged that her review of ALCOA's files (in preparation for the hearing) only indicated one documented disciplinary letter for failure to wear required hearing protection, and that the disciplined employee was a member of management.
With regard to documented areas with high noise levels, claimant's exhibit #35 lists approximately 130 locations throughout the ALCOA facility with noise levels greater than 85 decibels based on area surveys conducted between 1975 and 1989, with the highest indicated noise level being 114 decibels.
Dr. Thomas Rimmer, a Ph.D. industrial hygienist, testified on behalf of the claimant that he had reviewed ALCOA's records, and he concluded that ALCOA has had, and continues to have, noise levels high enough to need a hearing conservation program and high enough to cause hearing loss. Dr. Rimmer concluded that the major deficiencies in ALCOA's hearing conservation program are in training, enforcement, and effectiveness of the hearing protection provided. In addition, Dr. Rimmer testified that none of the records he reviewed indicated that ALCOA had attempted limiting overtime as an administrative control to limit noise exposure, and that, despite implementing some engineering controls, the noise monitoring data does not seem to indicate a significant reduction in the number of people exposed or in the levels that they have been exposed to generally. Dr. Rimmer also testified that unprotected noise exposure at 114 decibels, the level measured for descaling, could cause rapid and permanent hearing loss, although continuous exposure below 80 decibels will not contribute to hearing loss (the decibel scale is non-linear and an increase of three decibel units corresponds to a doubling of the loudness of the sound measured).
Dr. Daniel Orchik, the chief of audiology at the Shay Clinic in Memphis, testified that there are several key factors to consider in determining whether any particular individual has sustained an occupational noise induced hearing loss. According to Dr. Orchik, these factors include whether the work environment produced a noise level potentially hazardous to hearing, the level and duration of noise exposure, whether audiometric test results are consistent with hearing loss caused by hazardous noise exposure, general information on the individual's otologic health, medication, potential disease processes, family history, and non-work exposure to hazardous noise.
Dr. Orchik testified that he reviewed ALCOA's medical and audiometric data and histories, he conducted interviews with approximately 19 of the 25 claimants in the present group of claims (including Mr. Edmonson), and he received a copy of answers to interrogatories prepared for approximately 23 of the 25 claimants.
Dr. Orchik testified that noise induced hearing loss is characterized by maximum hearing loss in the region of 3000 — 6000 Hz. According to Dr. Orchik, in the very earliest stages of noise induced hearing loss, testing will indicate a dip or notch in the 3000 — 6000 Hz region so that a plotted audiogram would look like a left-handed check mark. With prolonged exposure, the audiometric pattern tends to broaden and affect frequencies below 3000 Hz and also with less recovery at the higher frequencies.
Dr. Michael Winston testified that he reviewed audiograms for approximately 131 ALCOA employees. Dr. Winston testified that, in addition to reviewing audiograms, he also reviewed available history information, exposure levels, job descriptions, and any other information that might be helpful in determining whether the individual's hearing loss could be classified as primarily occupational-induced hearing loss or loss due to some other cause. Dr. Winston did not testify specifically regarding any of the 25 claimants in the present group of claims, although Dr. Winston testified that he did formulate an opinion regarding whether the 131 employees reviewed had sustained occupational noise induced hearing loss.
The claimant in the present case had a baseline audiogram performed on February 28, 1966. The claimant's pre-employment audiogram indicated only a mild hearing loss at 6,000 Hz, and the claimant's hearing at that time was otherwise within normal limits (i.e., within the 25 decibel fence). However, beginning with the claimant's next audiogram (in 1974) the claimant has experienced a progressive loss of hearing at the higher frequencies (3,000 to 8,000 Hz) which Dr. Winston characterized as moderate to severe in his 1994 letter. After performing an audiogram on December 20, 1993, Dr. Winston indicated that he did not consider the claimant a good candidate for amplification because of the claimant's good sensitivity at 2,000 Hz (right ear equaled 10 decibels, left ear equaled 15 decibels).
After conducting our de novo review of the entire record, we find the claimant proved by a preponderance of the credible evidence that he has sustained a high frequency hearing loss causally related to his employment with the respondent. In reaching that decision, we note that Dr. Orchik opined at the hearing that the claimant has sustained noise induced hearing loss as a result of his employment at ALCOA. In this regard, Dr. Orchik characterized the claimant's hearing ability in 1966 as essentially normal except at 6,000 Hz in the right ear, and Dr. Orchik characterized the claimant's bilateral hearing loss as of December 20, 1993, at the higher frequencies as moderate, and Dr. Orchik opined that he felt that the claimant's hearing loss was work related. After considering the testimony of the claimant, Ms. Schiefler, Dr. Rimmer, Dr. Winston, Dr. Orchik, the claimant's audiograms and the other documentary evidence and all other evidence properly in the record, we find that the claimant proved by a preponderance of the evidence that he sustained a work-related injury to his hearing at the higher frequencies.
In reaching our decision, we note that the dissent asserts that this case is indistinguishable from eight of the cases where the majority found that the claimant failed to prove that he was entitled to workers' compensation benefits for any hearing loss sustained. However, in the cases cited by the respondent, there was no question that the employee sustained hearing loss, but the preponderance of the evidence in those cases indicated that the observed loss was caused by some means other than work-related noise induced hearing loss. In the present case, the preponderance of the evidence in the record indicates that the claimant's hearing loss was caused by the claimant's work-related noise induced loss. We also point out to the dissent that the fact that the claimant's impairment rating is 0% under the AMA Guides formula is not determinative of the issue as to whether the claimant is entitled to hearing aids or other medical treatment for his work-related hearing loss. The AMA Guides impairment formula only utilizes one portion of the human hearing range spectrum to calculate an "impairment rating." Whether hearing aids are reasonably necessary to treat the nature and degree of work-related hearing loss sustained by the claimant is essentially a medical question which must also consider hearing loss outside the range of frequencies utilized in the AMA Guides impairment rating formula.
In addition, we find that the preponderance of the evidence in the record indicates that amplification devices are reasonably necessary medical treatment for the claimant's work-related injury. In reaching that decision, we note that Dr. Winston opined in his report that he did not consider the claimant a good candidate for amplification. However, in this regard, Dr. Orchik testified as follows:
Again, given the symmetrical nature of his hearing loss, essentially it is the same in both of the ears and the things I mentioned earlier, I would certainly recommend at least a trial of the amplification of both ears. The other point I guess I didn't mention is one of the limiting factors to high frequency amplification is feed-back, acoustic feed-back, and if you have ever been somewhere where a person wears a hearing aid, and it whistles, that's acoustic feed-back, and basically it's like you can view a hearing aid in it's very simplest form, it's like a miniature public address system. You have a microphone and an amplifier and a loud speaker, and if you have ever been in a church or an auditorium where somewhere (Sic) turns the amplifier up too high and it squeals, what is happening is sound comes out of the speaker, it is picked up again by the amplifier and it is re-amplified, so it whistles. If a person, for whatever reason, has their hearing aid turned up too high, or they might have a wax occluding their ear canal that bounces the sound back out, if it gets bounced into the microphone, it's going to whistle, and if you are able to fit someone with a hearing loss like this in both ears, they are able to take advantage of the summation effect of the two ears working together so you need less power to reach them, so you reduce to some extent the possibility that they are going to experience acoustic feed-back with the hearing aid.
In light of Dr. Orchik's testimony regarding the nature and the extent of the claimant's hearing loss, the applicability ofavailable technology to treat that degree of loss, and Dr. Orchik's determination that the claimant's hearing loss is causally related to the claimant's employment, we find that the claimant proved by a preponderance of the credible evidence that a trial of amplification devices is reasonably necessary medical treatment for his compensable hearing loss injury.
In reaching our decision, we also affirm the administrative law judge's determination that the appropriate formula for calculating a hearing impairment rating (previously applied by the Arkansas Worker's Compensation Commission) is the formula in theAMA Guides to the Evaluation of Permanent Impairment. The claimant advocates adoption of an alternative formula described by Dr. Orchik as the "Oregon formula". However, we note that the AMA Guides formula was adapted from information provided by the American Academy of Otolaryngology, and we frankly are unclear as to who developed the "Oregon formula" or which professional medical associations, if any, endorse that formula. We therefore decline to abandon the AMA Guides formula for the "Oregon formula" based on the record and evidence before us.
In reaching our decision, we also note that the respondent asserts on appeal that the claimant's hearing loss has been caused in part by presbycusis (an age-related process) and that the claimant has been exposed to non-work related noise adequate to cause all or part of the claimant's noise induced hearing loss. In assessing these arguments, we point out that the Guides formula incorporates a 25 decibel "fence" for "normal" hearing loss and does not specifically contain any other adjustment in the formula for potential age or non-work-related exposure. Nevertheless, this Commission has previously made such adjustments where indicated appropriate by expert medical testimony. See, Jakie Alexander v. International Paper Co., Full Workers' Compensation Commission, Feb. 3, 1995 (Claim No. E206791); Kenneth Colson v. International Paper Co., Full Workers' Compensation Commission (Claim No. E200043); Jimmy Haywood v. International Paper Co., Full Workers' Compensation Commission, Feb. 3, 1995 (Claim No. E206820); Hubert McCollum v. International Paper Co., Full Workers' Compensation Commission, Feb. 2, 1995 (Claim No. E201053).
However, in the present case Dr. Orchik, who gave candid and highly credible testimony, was the only testifying expert to review the claimant's audiograms in light of his age and exposure history, and Dr. Orchik clearly did not opine that the claimant's significant high frequency hearing loss since 1966 was caused by aging or by any non-work exposure. Consequently, we see no basis in the medical evidence in support of the respondent's assertion in this regard.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the respondent failed to prove by a preponderance of the evidence that the present claim is barred by the statute of limitations. Consequently, we find that the administrative law judge's decision in this regard must be affirmed. We also find that the claimant proved by a preponderance of the evidence that he sustained hearing loss causally related to his employment with the respondent, and we find that the claimant proved by a preponderance of the evidence that amplification devices are reasonably necessary for treatment of his compensable injury. Therefore, we find that the administrative law judge's decision in these regards must be reversed. In addition, we find that the greater weight of the evidence in the record establishes that the claimant sustained a 0% permanent impairment to his hearing under the AMA Guides formula as a result of his compensable injury.
For prevailing in part on this appeal before the Full Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
DISSENTING OPINION
[35] Not only do I dissent from the finding that this claim is not barred by the Statute of Limitations, but I must also dissent from the finding that claimant has proven the compensability of his claim. This claimant has not proven a hearing impairment as claimant's audiograms clearly show a 0% hearing impairment. Consequently, this claim is no different from the other claimants in this group of hearing loss claims that have failed to prove the compensability of their hearing loss. See Babbitt v. ALCOA, ( E305581), Brewer v. ALCOA, ( E318847), Collier v. ALCOA, ( E303054),Ray v. ALCOA., ( E303192), Smith v. ALCOA, ( E303212), Still v. ALCOA, ( E303224), Westbrook v. ALCOA, ( E303242), and Wise v. ALCOA ( E303249). As I review the evidence, the only difference between this claim and those listed above is speculation regarding causation and Dr. Orchik's testimony indicating that hearing amplification may be beneficial to this claimant. In my opinion, without any evidence of hearing impairment as proven through the audiograms and the AMA GUIDES, I cannot find that this claimant has met his burden of proof. Therefore, I must respectfully dissent.MIKE WILSON, Commissioner