Opinion
CASE NO. 04164 CRB-08-99-12CLAIM NO. 800109979
DECEMBER 19, 2000
The claimant was represented by Robert B. Cohen, Esq., Levy Droney, P.C., 74 Batterson Park Road, P.O. Box 887, Farmington, CT 06034-0887.
The respondent employer and Liberty Mutual Insurance Group were represented by Ellen Aspell, Esq., Law Office of Nancy S. Rosenbaum, 655 Winding Brook Drive, Glastonbury, CT 06033.
The respondent employer and EBI Companies were represented by Dominick Statue, Esq., Montstream May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.
The respondent employer and CIGNA were represented by Brian E. Prindle, Esq., 72 Bissell Street, Manchester, CT 06040-5304.
The respondent American Mutual Insurance Co. did not appear at oral argument. Notice sent to American Mutual Ins., Quannapowitt Parkway, Wakefield, MA 01880.
The Second Injury Fund was not represented at oral argument. Notice sent to Brewster Blackall, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the December 2, 1999 Finding and Award of the Commissioner acting for the Eighth District was heard July 14, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.
OPINION
The claimant has petitioned for review from the December 2, 1999 Finding and Award of the Commissioner acting for the Eighth District. He contends on appeal that the trier erroneously underrated the claimant's binaural hearing loss by misinterpreting the evidence and by omitting relevant facts in her findings. We affirm the trial commissioner's decision.
The claimant has worked in a noisy environment at the respondent employer's place of business since 1971, and the respondents admit that he has sustained a binaural hearing loss as a result of long-term exposure to loud machinery. The dispute in this case concerns the proper method of calculating his permanent hearing impairment. A 1989 audiological evaluation indicated that he had a mild to moderate high frequency sensorineural loss that caused him difficulties primarily when there was background noise. He notified his employer that he was claiming a work-related hearing loss, and began wearing hearing protection at the workplace. The claimant testified that his hearing seems to be about the same now as it was in 1989. He currently wears two hearing aids, which the audiologist had suggested that he begin using.
On June 14, 1999, the claimant visited Dr. Friedman, an otolaryngologist, at the request of his attorney. Everyone involved contemplated that the examination would qualify the doctor to testify at the upcoming formal proceeding. Findings, ¶ 18. Dr. Friedman performed an audiometric test on the claimant that showed he had a high-frequency hearing loss in both ears. The doctor separately tested each ear to determine the decibel threshold at which the claimant could detect tones at the frequency ranges of 500, 1,000, 2,000, 3,000, 4,000 and 8,000 cycles per second (hertz). He then added the decibel detection readings together, divided by six to obtain an average reading for each ear (41 dB for the left, and 42 dB for the right, according to Claimant's Brief p. 6), multiplied the better ear's average by five, added the worse ear's average, and divided the whole number by six, which resulted in a binaural percentage hearing loss of 41%. This method of calculating hearing loss was devised by Dr. Friedman and his associates, and to the best of his knowledge, is not used anywhere else. Findings, ¶ 39.
The claimant was also examined by Dr. Lehmann in May 1998 at the behest of the respondents. Dr. Lehmann used the American Medical Association (AMA) formula to diagnose the claimant's level of impairment. He testified that the AMA equation only incorporates audiogram ratings at four frequencies: 500, 1,000, 2,000 and 3,000 hertz, which it deems the "speech frequencies." Further, the AMA calculation subtracts a 25-decibel threshold from the average of the decibel detection readings before the binaural impairment is determined, as sounds under 25 dB allegedly do not reach the range of normal speech. The remaining average is then multiplied by 1.5 to secure an appropriate percentage of hearing impairment. According to Dr. Lehmann, this equation was developed by a renowned panel of experts and is commonly utilized in the medical community. Under the AMA formula, the claimant has a sensorineural hearing loss of 11% in the right ear, and 8% in the left ear, translating to an overall 8% hearing handicap.
Dr. Friedman testified that the AMA method does not fairly represent high frequency hearing loss. Many common sounds, such as the speech of women and children, approach or exceed into the 4,000 Hz range, and patients with high frequency hearing loss often have difficulty listening to television sets and discerning voices in environments where there is background noise. He characterized the AMA method as trying to calculate the hearing handicap rather than true hearing loss. However, he also acknowledged that the claimant's 1975 audiogram — which Dr. Friedman described as typical of "normal hearing" — would result in a 20% binaural hearing loss calculation if his formula were applied to those test results. In fact, based on his formula, someone could have an overall 110-120% hearing loss. Dr. Lehmann attested that, in his opinion, Dr. Friedman's formula was medically and mathematically "silly" and "nonsensical." Findings, ¶ 55. The trier noted that his audiogram did not differ substantially from the one taken by Dr. Friedman; the differences in their impairment ratings were based primarily on the dissimilarities in the formulae the doctors were applying.
The trial commissioner ultimately concluded that Dr. Lehmann's medical opinion was more credible than that of Dr. Friedman, and awarded the claimant 8.32 weeks of permanent partial disability benefits based on an 8% binaural hearing loss. The claimant filed a petition for review from that ruling. He also moved to correct the trier's findings, including her description of Dr. Lehmann's diagnosis, which the claimant sought to recharacterize as a description of a "hearing handicap" rather than a "hearing loss." The trier declined to make the requested alterations. The claimant has included the denial of his Motion to Correct in his Reasons of Appeal.
This board has had occasion in the recent past to consider three appeals that challenged the accuracy of the AMA's formula for calculating hearing loss percentages, two of which advocated as an alternative the method proposed here by Dr. Friedman and the claimant's present counsel.Ricigliano v. Rex Forge, 3476 CRB-6-96-11 (April 8, 1998), aff'd., 53 Conn. App. 158 (1999), appeal dismissed, 252 Conn. 404 (2000);Schilling v. New Departure-Hyatt Div., 3290 CRB-6-96-3 (Aug. 4, 1997);Blassingame v. Acme Steel Co., 16 Conn. Workers' Comp.Rev.Op. 20, 3007 CRB-6-95-3 (Oct. 8, 1996), aff'd., 45 Conn. App. 914 (1997) (per curiam). We have never stated that it would be unreasonable for a trial commissioner to adopt a different test that would produce a different indication of disability in cases involving high-frequency hearing loss. We are also aware that courts in other states have rejected the application of the AMA guidelines to high-frequency hearing loss claims.Adams v. Industrial Commission, 552 P.2d 764 (Ariz. 1976); Peabody Galion Corp. v. Workman, 643 P.2d 312 (Okla. 1982).
However, the trier of fact is entitled in each and every case to make a completely independent evaluation of the competing methods of diagnosing permanency, and draw her own conclusion as to which are more credible.Tartaglino v. Department of Correction, 55 Conn. App. 190, 195-96 (1999); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). "Whether or not the AMA guidelines are a fair and appropriate determinant of a claimant's actual hearing loss in all cases, we cannot say; what we can and must say, however, is that the trial commissioner has the ultimate authority and responsibility to make that decision."Blassingame, supra, 23. If a trier of fact finds, as did the trier inRicigliano, supra, that the opinion of the doctor who relies on the AMA formula is more believable than the opinion of the doctor who propounds an alternate equation for gauging high frequency hearing loss damage, this board cannot overturn such a factual determination of credibility on appeal. Pallotto, supra. As noted above, the trier in this case explicitly stated that she did not find Dr. Friedman's diagnosis as compelling as Dr. Lehmann's. Findings, ¶ C.
By parsing the language and details of Dr. Friedman's testimony, the claimant strives to demonstrate that the issue before us on appeal is not merely one of evidentiary credibility because the trier misjudged the legal consequences of Dr. Friedman's opinion. He explains that there is a distinction between hearing loss and hearing handicap as defined by the American Academy of Otolaryngology's (AAO's) publication containing the formula that was used by Dr. Lehmann to obtain his 8% rating. Claimant's Exhibit P. In that guide, "permanent impairment" is defined as "a change for the worse in either structure or function, outside the range of normal, . . . due to any anatomic or functional abnormality producing hearing loss." Id., 543. "Permanent handicap" signifies "the disadvantage imposed by an impairment sufficient to affect the person's efficiency in the activities of daily living." Id. The guide states that it is hearing handicap, rather than overall hearing loss, that is determined by using the pure-tone audiogram to calculate hearing threshold averages from 500 Hz to 3,000 Hz, and then subtracting 25 dB from the impairment percentage calculation. Both doctors agreed in their testimony that the AMA formula is designed to measure handicap rather than absolute loss. August 16, 1999 Transcript, pp. 22, 79.
The AMA's Guides to the Evaluation of Permanent Impairment, Fourth Edition, state in § 9.1a ("Hearing") that the criteria used to determine impairment "have been adapted from information provided by the American Academy of Otolaryngology — Head and Neck Surgery." Claimant's Exhibit O. The Otolaryngologists' Guide for the Evaluation of Hearing Handicap; Claimant's Exhibit P; is presumably the source of those criteria.
The claimant's argument falters, however, when he attempts to establish that the Workers' Compensation Act requires that he receive indemnity benefits for every decibel above the zero setting on the audiograph that he is unable to hear, regardless of the degree to which he is impeded by his inability to discern such sounds. At the time of his 1989 injury, § 31-308(b) allowed a claimant 156 weeks of benefits for the permanent loss of hearing in both ears. In the case of partial loss of the hearing function, the commissioner was entitled "in [her] discretion" to award a percentage of the 156-week figure proportional to the total loss or loss of use that she found to exist. Before such discretion may be exercised, the trier must determine the severity of the claimant's loss or loss of use of his hearing function as a matter of fact. This is not necessarily a straightforward task that can be accomplished by implementing a simple standard of measurement. The evidence shows that the degree of a person's hearing loss is hard to identify.
The AAO Hearing Handicap Guide explains that sensorineural hearing impairment can only be assessed by changes in function. The most commonly measured changes are threshold sensitivity to pure tones and the ability to hear and understand speech, with the latter being difficult to standardize due to numerous variables that affect verbal comprehension. Exhibit P. supra, 544. When pure-tone audiometry was first developed, hearing loss was expressed in terms of the total range of the audiometer (120 dB), with 0.8% disability being prescribed for each decibel "lost." However, in the opinion of the AAO, this tactic produced medically illogical results whereby the disabilities of people with normal hearing were being overrated, while those of people who could not discern everyday speech were being underrated.
Thereafter, various alternate schemes were considered by the AMA given the continued absence of standardized tests for the hearing of everyday speech. The formula currently being used attempts to correlate pure tone thresholds with the thresholds of hearing for speech. The AAO decided that the average of the threshold levels at 500, 1,000, and 2,000 Hz would achieve a reasonably accurate prediction of hearing impairment for speech, with the 3,000 Hz reading being added later in order to account for the hearing of speech in noisy environments. The AAO also concluded that impairment of hearing should be calculated from the number of decibels by which the average hearing threshold exceeded 15 dB, with total impairment being reached at 82 dB. Those figures were each increased by 10 dB when audiometric zero was later redefined. Id., 545. Dr. Lehmann explained that these 25 decibels are subtracted from the impairment calculation because not everyone starts from the audiometric "zero" point, which is merely a reference point based on the average hearing of a large sample population of people in their twenties with presumably normal hearing, whose decibel thresholds covered a range of about 25 dB. August 16, 1999 Transcript, p. 75. Dr. Friedman concurred in this fact. Id., 4-5. The purpose of the AAO/AMA impairment calculation is to determine at which point hearing loss becomes a handicap, and it was felt that "25 decibels reflected the low fence above which one would have a handicap listening and understanding a person." Id., 49-50.
The trial commissioner was entitled to accept this method of calculating hearing loss as the most reliable method of determining the claimant's impairment rating under § 31-308(b). The strength of her decision is bolstered by Dr. Lehmann's testimony regarding the method advocated by his colleague Dr. Friedman, which superficially appears to compensate claimants for all hearing loss, regardless of its relationship to impairment. Dr. Lehmann explained that the tradition of measuring hearing frequencies up to 8,000 Hz likely results from the simple fact that audiometers are generally built to measure that particular frequency. Id., 70. However, he noted that at around 6,000 Hz, it becomes difficult to measure sound wave perception accurately because the length of the waves matches or exceeds the length of the average human ear canal. Id. He opined that a test utilizing frequencies above 6,000 would be more subject to error. The doctor also pointed out that there are in fact an infinite number of measurable sound frequencies. The decision as to which frequencies to choose in measuring hearing loss would thus be arbitrary absent some sort of a standard based upon actual necessity, which is why the AAO opted to use frequencies that are designed to measure human speech detection. Id., 70-71, 85. Presuming that the trier accepted these assertions as fact, we cannot say that she miscalculated the claimant's loss of hearing under the Workers' Compensation Act.
We are not deciding today that the hearing loss formula advocated by the claimant is without merit in all future cases, nor do we adopt the AMA guideline as a presumptive official standard for calculating hearing loss. What we are saying is this: where a trial commissioner chooses to adopt a doctor's opinion that applies the AMA approach to determining hearing loss, that approach does not offend the law of this state by somehow failing to compensate a claimant for actual hearing loss under § 31-308(b). This is not the equivalent of failing to provide benefits to a claimant absent proof of economic loss; see Romanski v. West Hartford, 34 Conn. App. 307, 315 (1994); because the hearing loss itself must first be quantified using one of the formulae available to the trier of fact.
The trial commissioner's decision is hereby affirmed.
Commissioners Robin L. Wilson and Leonard S. Paoletta concur.
CERTIFICATION
THIS IS TO CERTIFY THAT a copy of the foregoing was mailed this 1 9k" day of December 2000 to the following parties:
PAUL MORIN
ROBERT B. COHEN, ESQ. 7099 3400 0009 0437 7819
MILLER COMPANY
ELLEN ASPELL, ESQ. 7099 3400 0009 0437 7901
DOMINICK STATILE, ESQ. 7099 3400 0009 0437 7635
BRIAN PRINDLE, ESQ. 7099 3400 0009 0437 7666
AMERICAN MUTUAL INSURANCE 7099 3400 0009 0437 7673
BREWSTER BLACKALL, ESQ. 7099 3400 0009 0437 7680
Lorraine Lockery Administrative Hearings Lead Specialist Compensation Review Board Workers' Compensation Commission