In Hall v Missouri State Treasurer, 500 S.W.3d 282 (Mo. App. 2016) the court affirmed an award of permanent and total disability against the second injury fund for combination with a primary settled claim of tinnitus.
The SIF argued that objective testing was to be given more weight than subjective symptoms, and claimant's expert lacked any education or experience to assess disability in a hearing loss case.
The ALJ found claimant to be a very credible witness. Claimant introduced medical evidence from Dr. Koprivica that she had high frequency hearing loss demonstrated on exams that objectively showed she had tinnitus. Claimant testified she had a continuous buzzing that made it difficult for her to understand speech. She offered expert opinion that she could not work in an environment that required accurate perception of speech.
Dr. Parmet indicated that claimant's case was not based on sound audiological testing. Dr. Parmet indicated that test results showed that claimant could distinguish the accuracy of spoken words at least half of the time.
The commission distinguished between the ability to hear words and ability to understand them and found a test that claimant could distinguish words at least half of the time did not address her ability to understand speech. As there was no testimony that the SRTT test evaluated an ability to understand speech it did not refute the claimant's medical expert. The SDT test, which could have addressed that issue, was not performed.
A concurring judge indicated that the fund mischaracterized its appeal as a question of law when it was a case of dueling experts and found the fund had lost most of any analytic value by not arguing the case using the four-step analysis encouraged by the court.
Claimant worked most of her life for a company in Greene County hat made paper products until the business shut down. The business closed in March 2011. She filed a claim that in December 2010 she developed an occupational disease of losing hearing because of exposure to loud noise. Hall v Solo Cup, 2015 MO WCLR Lexis 84. She was awarded PTD benefits against the second injury fund in a divided opinion whether tinnitus with normal speech discrimination testing represented a disability.
She worked in a print shop and used hearing protection. In 2008 she stated she began to hear ringing in her ears and she had difficulty understanding sound on her television. Her studies reflected only high frequency hearing loss which is not compensable in Missouri. Her expert concluded that her hearing loss was traumatic and that produced tinnitus and that claimant could not work in jobs that required "normal" speech. The Second Injury Fund relied upon expert testimony that her primary condition was not occupational and better explained by age or use of several medications for numerous chronic cardiac and orthopedic conditions. Her vocational expert felt she had problems communicating.
The ALJ found her expert more persuasive that claimant' tinnitus was occupational and awarded total disability benefits against the Fund based on testimony that prior conditions limited her to sedentary work and difficulties to communicate combined to produce additional limitations.
One commissioner indicated claimant failed to prove she had a disability from tinnitus and was not entitle to Fund benefits based on 287.220.1. The statute indicates that objective findings prevail over subjective findings. The commissioner noted expert opinion that an objective speech reception test which was normal objectively negated that any "ringing" in the ears caused an impairment in an ability to communicate. The award contains conflicting expert opinion whether she had normal speech recognition or not.
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Jimmie Holifield v Mississippi Lime Company
2018 MO WCLR LEXIS (Jan. 18, 2018)
ALJ Strange
Atty Meyers, Micherman
Experts: Mason, Mikulec
Claimant alleges tinnitus for occupational exposure since the 1980s.
The ALJ notes that proof of tinnitus does not have to be established by a medical doctor instead of an audiologist.
The ALJ rejected a notice and statute of limitations defense and the condition was not reasonably discoverable until 2015 when Dr. Mason diagnosed the condition as an occupational disease.
The ALJ awarded 5% BAW for tinnitus.
The Commission affirmed without a separate opinion.
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Claimant failed to prove tinnitus but established hearing loss from industrial noise exposure from long-term retired employee with irregular use of hearing protection. The ALJ allowed audiologist to testify regarding causation. Abt v Mississippi Lime Co., 2017 MO WCLR Lexis 28 (April 6, 2017).
ALJ Kasten:
Atty: Meyers, Mockerhman
Experts: Masons, Mikulec
Claimant failed to prove hearing loss or tinnitus from industrial noise exposure. Claimant had military compensation for hearing loss and a family history of hearing loss. The ALJ found testimony from claimant's audiologist unpersuasive that it was "obvious" that it flowed from work.
Welty v Mississippi Lime Co., 2014 MO WCLR Lexis 113.
ALJ: Strange
Atty: Meyers, Mocherman
Experts: Mason, Mikulec
Claimant failed to prove hearing loss within a compensable range but established prolonged noise exposure more likely than not caused his tinnitus. Lawson v Mississippi Lime Company, 2014 Mo WCLR Lexis 46 The commission found that 287.190.6(2) did not require any lower weight to claimant's subjective complaints of tinnitus because the Commission concluded that tinnitus cannot be objectively assessed. The commission further noted that a non-medical doctor's credentials were sufficient to address causation.
ALJ Kasten
Atty: Meyers, Mocherman
Experts: Mason, Mikulec
Claimant failed in his burden to proof that hearing loss and tinnitus flowed from an acoustic trauma while working as a mechanic on an alternator. Kersey v Autry Morlan, 2013 Mo Lexis 133.
Claimant alleged that he lost part of his hearing and his ears started to ring after an accident in 2007. Regarding the tinnitus, his expert provided a PPD opinion but did not provide a causation opinion. As no other opinions found the tinnitus to be a prevailing factor, claimant failed to establish his tinnitus flowed from the accident. An opinion from the employer's expert indicating there "may" be a causal relationship did not satisfy his burden of proof.
Claimant had to prove that his hearing loss met minimum statutory threshold standards even in the case of an acoustic trauma. His expert performed none of the required tests for hearing loss to make that determination and the employer's expert who performed the required tests found no measurable loss based on the regulations. The commission found her less credible, affirming a denial of benefits from the ALJ. The rules require adjustment for age when a claimant is greater than 40 years old (which applied to claimant) and measured responses at 500 100 and 2000 Hertz. Averaging the lowest responses to pure tone air conduction frequencies at 500, 1000, and 2000 Hertz.
Commissioner Chick in his dissent at the Commission felt it was illogical for ALJ Tilley not to award disability because claimant denied prior tinnitus and felt that prevailing factor could be inferred and was not required to be stated directly. 2012 MO WCLR Lexis 14.
Experts: Mikulec, Guidos
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The Court of Appeals affirmed an award of SIF benefits for pre-existing hearing loss. Treasurer v State of MO v Horton , 497 S.W.3d 812 (Mo. App. 2016). transfer denied 2016 MO App. Lexis 300.
The SIF argued that 287.220.1 limited SIF recovery for body as a whole injury and major extremity injuries and that hearing loss did not fall within either category because it was a scheduled loss. The ALJ had awarded disability for hearing loss as BAW.
The court noted that "body as a whole" was not defined but captured everything that was not a major extremity injury. A similar argument, involving loss of vision, had been rejected by the Supreme Court in Pierson v Treasurer of State, 126 S.W.3d 386 (Mo banc 2004). The court found the SIF's argument would produce an absurd result under either strict or liberal construction.
In the case the ALJ had awarded hearing loss based on BAW.
The commission described the fund's argument as "patently illogical."
Claimant failed to prove an injury to his head at work caused a permanent loss of hearing without expert testimony or other admissible records. Claimant asserted the accident totally changed everything in his life and pursued a claim of PTD benefits. Burchfield v Renard Paper Co., 2012 Mo WCLR Lexis 172.
ALJ Landolt
Atty: Frayne
