Opinion
CASE NO. 2190 CRB-6-94-10
JANUARY 18, 1996
The claimant was represented by Robert B. Cohen, Esq., Levy Droney, P.C.
The respondents Rex Forge and CIGNA were represented by Diane Duhamel, Esq.
The respondents Rex Forge, Hartford Insurance Group, and Aetna Life Casualty were represented by Jason Dodge, Esq., Pomeranz, Drayton Stabnick.
The respondents Rex Forge and Travelers Insurance were represented by Joseph J. Passaretti, Esq., Law Offices of Christine Harrigan.
The respondents Rex Forge and Liberty Mutual Insurance were represented by Debra Dee, Esq., Law Offices of Nancy Rosenbaum, who did not appear at oral argument.
The respondents Ideal Forging and EBI Insurance were represented by Dominick Statile, Esq., Monstream May.
This Petition for Review from the October 20, 1994 Finding and Award of the Commissioner acting for the Sixth District was heard June 23, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Michael S. Miles.
OPINION
The claimant has petitioned for review from the October 20, 1994 Finding and Award of the Commissioner acting for the Fifth District. In that decision, the commissioner concluded that the claimant sustained a compensable hearing loss injury. The commissioner determined that the claimant sustained a .62 percent binaural hearing loss, and thus awarded the claimant 1.06 weeks of permanent partial disability benefits. On appeal, the claimant contends that the trial commissioner should not have relied upon American Medical Association (AMA) guidelines in determining the claimant's permanent partial disability.
We note that the claimant in his appeal requests attorney's fees, costs for Dr. Freidman's testimony at the formal hearing, and other related costs. As these issues apparently were not pursued at the formal hearing, and thus have not been ruled upon by the trial commissioner, we are unable to review them. Similarly, although the claimant on appeal argues that the respondents should be precluded from defending the claim, this issue was apparently not pursued at the formal hearing nor ruled upon by the trial commissioner, and thus we will not review it at this time. See Charette v. Jensen Mobile Home, 10 Conn. Workers' Comp. Rev. Op. 1, 936 CRD-6-89-11 (March 19, 1991).
We will first address the respondents' motion to dismiss the claimant's appeal for failure to file a timely brief. The Compensation Review Board Calendar, which was issued on March 8, 1995, stated that appellants must file their briefs on or before May 1, 1995 and that appellees must file briefs on or before May 22, 1995. The claimant's attorney immediately responded to the motion to dismiss by a letter filed May 10, 1995, explaining that he had recently formed a new law office, that his receipt of the calendar was delayed because it was mailed to his former office, and that he had been hospitalized during February and March of 1995. Under these compelling circumstances, as the claimant filed his brief on May 12, 1995, we deny the respondents' motion to dismiss.
The trial commissioner found that the claimant's repeated, excessive exposure to loud occupational noise on a daily basis while employed by Rex Forge and Ideal Forge caused him to sustain a binaural hearing loss. Dr. Freidman, the claimant's treating physician, determined that the claimant suffered a thirty-five percent binaural hearing loss. In his determination, Dr. Freidman measured the claimant's hearing at frequencies of 500, 1,000, 2,000, 4,000 and 8,000. (Finding No. 29). The respondents' independent medical examiner, Dr. Yanagisawa, also concluded that the claimant had sustained sensory hearing loss. He determined that the claimant suffered a .62 percent binaural hearing loss based upon AMA guidelines. AMA guidelines provide for the measurement of hearing at or above 25 decibels, and up to a frequency of 3,000 cycles per second. (Finding No. 35). The trial commissioner concluded that the claimant sustained a .62 percent permanent partial hearing loss.
The claimant contends on appeal that the trial commissioner, by relying upon AMA guidelines for determining the claimant's hearing loss, failed to provide compensation for the full extent of the claimant's hearing loss. The claimant's treating physician, Dr. Freidman, stated that the AMA formula does not take into account the actual hearing loss problems that patients with high-frequency hearing loss experience such as listening to the television, hearing people speak when there is background noise, and communicating with females and children whose voices go into the 4,000 cycles per second range. (Finding No. 32). The trial commissioner did find that the claimant had to turn up the volume on his television in order to hear it, and that he could not hear a conversation if there was music or other noise in the room. (Findings No. 13 and 14). Moreover, Dr. Yanagisawa "believed that the claimant would benefit from a hearing aid." (Finding No. 34).
Dr. Freidman's opinion regarding the AMA guidelines is corroborated by Dr. Yanagisawa's testimony. (9/27/93 Deposition at pp. 8-12).
We have approved of the use of an AMA guidelines "forconsideration by the trial commissioner in reaching a decision" as to permanent partial disability. Furrey v. Wells Fargo Alarm System, 11 Conn. Workers' Comp. Rev. Op. 192, 195, 1307 CRD-3-91-9 (Sept. 22, 1993) (emphasis added) (citing Piscitelli v. Connecticut Coke/Eastern Gas and Fuel Associates, 6 Conn. Workers' Comp. Rev. Op. 94, 575 CRD-3-87 (1989); Repasi v. Jenkins Brothers, 4 Conn. Workers' Comp. Rev. Op. 82, 227 CRD-4-83 (1987)). In Piscitelli, supra, the claimant contended that the trial commissioner should have used the AMA guidelines, which provided a more favorable assessment of his permanent disability than the assessment used by the trial commissioner. This tribunal affirmed the trial commissioner's decision to not follow the AMA guidelines in that case.
In the case at hand, both Dr. Freidman and the respondents' independent medical examiner, Dr. Yanagisawa, found that the claimant had sustained a high frequency binaural hearing loss. Dr. Yanagisawa stated that Dr. Freidman's measurement of the claimant's hearing loss was "fair." (9/27/93 Deposition at p. 66). Moreover, the trial commissioner specifically found that the claimant's hearing was impaired in social settings, and that he would benefit from the use of a hearing aid. Under these circumstances, we conclude that the trial commissioner's reliance on the AMA guidelines resulted in a permanent partial disability assessment which did not fairly or accurately reflect the claimant's undisputed high frequency hearing loss.
Accordingly, this matter is remanded to the trial commissioner in order to determine the claimant's permanent partial hearing loss without limiting the determination to the AMA guidelines.
Commissioner Michael S. Miles concurs.
I dissent. I would affirm the trial commissioner's determination of the claimant's percentage of permanent hearing loss. Specifically, this board has repeatedly held that "the determination of the extent of an injured worker's permanent disability (is) within the trial commissioner's province as the trier of the facts." Kerins v. Johnson Controls, 12 Conn. Workers' Comp. Rev. Op. 72, 73, 1419 CRB-8-92-5 (Feb. 3, 1994) (citations omitted). Moreover, where "the medical evidence regarding the extent of the claimant's permanency (is) in conflict, the trial commissioners conclusion must stand so long as there is evidence to support it. Salz v. Oliver's Tavern, 12 Conn. Workers' Comp. Rev. Op. 325, 327, 1593 CRB-8-92-12 (July 5, 1994).
We have stated that a trial commissioner is granted "broad discretionary powers" in the determination of permanent partial disability. Piscitelli v. Connecticut Coke/Eastern Gas and Fuel Associates, 6 Conn. Workers' Comp. Rev. Op. 94, 575 CRD-3-87 (1989). In Furrey, supra, the Compensation Review Board concluded that where medical guidelines are the subject of professional controversy, it is within the trial commissioner's discretion to determine the weight to be afforded those guidelines. Furrey, supra, at 195, (citations omitted). Similarly, in this case, it was within the trial commissioner's discretion to find Dr. Yanagisawa's medical opinion based upon AMA guidelines to be more persuasive than Dr. Freidman's medical opinion which did not utilize the AMA guidelines.
Accordingly, I would affirm the trial commissioner.