Opinion
CLAIM NO. E303198
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. Therefore, we find that the administrative law judge's decision in this regard 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 this regard must be reversed.
The claimant is a 59 year old man began work for respondent on December 27, 1966, and retired on January 1, 1996. Before beginning work for the respondent, the claimant worked driving a delivery truck for Central Butane, at the Arlington Hotel as a desk clerk, and on a boat dock. In addition, the claimant was in the National Guard, but did not fire a weapon.
With regard to his job duties for the respondent, the claimant testified that shortly after being hired he was assigned as a scaler inside the tanks, a job characterized by extremely loud noise. The following year the claimant transferred out from this department and transferred into the pack and ship department where he worked for the next 14 1/2 years. The claimant testified that this department contained bagging machines or packers that were particularly noisy because of the blowers and the vibrators. The claimant testified that he recalled wearing some form of ear muffs while working as a scaler but does not recall ever having worn ear plugs as a scaler or any ear protection in the packing and shipping department until at least the late 1970s. The claimant testified that after working 14 years in the pack and ship department he transferred to the storeroom for the next five years, and that the storeroom and sheet metal facility which emitted quite a bit of noise were located adjacent to one another. After working 5 years in the storeroom, the claimant returned to work as a bagger.
With regard to non-work-related noise exposure, the claimant testified that he does not hunt and does not operate any power tools at home but does operate a lawn mower with ear protection.
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. Robbecke), 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.
In a letter dated April 29, 1992, Dr. Russell Burton, the respondent's physician, advised the claimant that the claimant had sustained a hearing impairment which had "most likely" occurred through work-related noise exposure. In 1992, Dr. Michael Winston, an audiologist retained by the respondent, reviewed the claimant's records and indicated in a summary report that he felt that high frequency changes at 3000 Hz to 4000 Hz on the right side and changes at 3000 Hz on the left side in the claimant's most recent audiograms probably reflect noise induced and job related causes." Dr. Winston also reviewed the claimant's pre-employment audiogram and indicated that the high frequency changes that were present at the time the claimant became employed by the respondent (not the changes in 1992) were probably related to a combination of exposures through military training, hunting, and shooting.
Dr. 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 December 14, 1966, which revealed some hearing loss at the higher frequencies in both hears at 4,000 Hz and 6,000 Hz. The claimant received periodic audiograms thereafter up through December 28, 1993, which indicated a degradation in the claimant's hearing ability at the higher frequencies. Dr. Winston opined in an April 6, 1994, report that the claimant's December 28, 1993, examination revealed normal hearing sensitivity bilaterally for the frequencies 250 to 2,000 Hz but drops precipitously to a moderate to severe level of hearing loss for the frequencies of 3,000 to 8,000 Hz. Dr. Winston also opined that the claimant was not a candidate for hearing aid amplification.
Consistent with Dr. Winston's calculations, Dr. Orchik testified that the claimant's December 28, 1993, audiogram indicated a zero percent permanent anatomical impairment rating using the hearing loss impairment formula contained in the AMA Guides To The Evaluation Of Permanent Impairment. However, Dr. Orchik testified that the claimant has sustained a significant decrease in his high frequency hearing ability since beginning to work for the respondent in 1966, and Dr. Orchik opined that the deterioration in the claimant's hearing ability since beginning to work for the respondent in 1966 is causally related to his employment with the respondent.
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 has sustained a work-related injury to his hearing at the higher frequencies which is causally related to his employment with the respondent. In reaching that conclusion, we are persuaded by Dr. Orchik's comparative analysis of the claimant's 1966 and 1993 audiograms, Dr. Orchik's assessment of the claimant's job duties in relation to his noise exposure, and Dr. Orchik's opinion regarding the causal connection between the claimant's work-related noise exposure and the deterioration of his high frequency hearing ability between 1966 and 1993.
In addition, we find that the preponderance of the evidence establishes 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 a report that the claimant is not a candidate for amplification. However, after assessing the nature and degree of the claimant's hearing loss, Dr. Orchik testified that the claimant's hearing loss at the higher frequencies will affect his ability to communicate on a daily basis. With regard to whether or not the current state of amplification technology is adequate to improve the claimant's hearing ability, Dr. Orchik testified as follows:
I'm not going to disagree, but it would be a difficult case to fit, but I would certainly disagree, and if you look at the professional literature, the audiology literature on current trends and amplifications, you would see on a regular basis reports of individuals with this kind of hearing loss profiting from or benefitting from the technology that is available today. Without question, I see it on, if not a daily, a weekly basis, in my office, so I would strongly disagree. It wouldn't be easy, but there is technology available to help this person.
In light of Dr. Orchik's testimony regarding the current status of amplification technology and Dr. Orchik's opinion regarding the applicability of that technology to the claimant's hearing loss which has apparently affected the claimant's ability to communicate effectively, we find that the claimant proved by a preponderance of the evidence in the record that a trial of amplification is reasonably necessary for treatment of the claimant's work-related hearing loss injury.
In reaching our decision, we also affirm the administrative law judge's determination that the appropriate formula for calculating hearing impairment (previously applied by the Arkansas Worker's Compensation Commission) is the formula in the AMA 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 theAMA 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 has been caused in part by presbycusis (age-related loss) 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 do not specifically contain any adjustment 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 expert to review the claimant's audiograms in light of his age and history, and Dr. Orchik clearly indicated that the claimant's relatively severe high frequency hearing loss was noise induced and work related. Consequently, we see no basis in the medical evidence in support of the respondent's assertions in this regard.
Therefore, 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. 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 this regard 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] I strenuously dissent from the majority finding that this claimant proved that his hearing loss was causally related to his employment. The audio gram revealed a 0% hearing disability. Claimant has high frequency hearing loss and his baseline audio gram performed before claimant was hired by respondent clearly indicated that this was a pre-existing condition. Dr. Winston offered evidence that this claimant's high frequency loss was more than likely related to claimant's military training and hunting. The majority has relied upon Dr. Orchik's testimony that claimant's high frequency hearing loss is causally related to claimant's employment. However, this opinion and finding based upon Dr. Orchik's testimony ignores the fact that claimant's own testimony indicates that claimant always implemented hearing protection since he began working for respondent. If claimant had pre-existing high frequency loss when he began working for respondent, implemented hearing protection, and only had high frequency hearing loss at the time of this claim, I cannot find that claimant has proven by a preponderance of the evidence that any high frequency hearing loss is causally related to his employment. When I weight all the evidence, including the medical opinions of Dr. Winston and Dr. Orchik together with claimant's testimony, I cannot find that claimant's high frequency hearing loss is causally related to his employment. Therefore, I must respectfully dissent from the majority opinion.In addition, for those reasons discussed in my dissent inRevies L. Stacey v. ALCOA, I respectfully dissent from the finding that the statute of limitations is not applicable to this claim.
MIKE WILSON, Commissioner