Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION · 2020. 4. 2. · The above-entitled...

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

FINAL AWARD ALLOWING COMPENSATION (Affirming Award and Decision of Administrative Law Judge)

Injury No.: 16-028974 Employee: Tony W. Darby

Employer: Noranda Aluminum, Inc.

Insurer: New Hampshire Insurance Company

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by§ 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated. The award and decision of Administrative Law Judge Lawrence C. Kasten, issued September 19, 2019, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this a{oJ day of April 2020.

LABOR AND INDUSTRIAL RELATIONS COMMISSION ,,,--~,.,_~;7 /'

//L.... ~~:? Robert W. Cor7nairman

SEPARATE OPINION FILED Reid K. Forrester, Member

Shalonn K. Curls, Member Attest:

~~ Secretary

Injury No.: 16-028974 Employee: Tony W. Darby

DISSENTING OPINION

Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I disagree with the majority's decision to affirm the administrative law judge's award allowing compensation.

Medical Causation The administrative law judge improperly determined that the employer was responsible for workers' compensation benefits relating to claimant's tinnitus, including providing future medical aid, in that the employee failed to carry his burden of establishing that his tinnitus, if he had any, was medically causally related to noise exposure while working for employer.

Three expert witnesses offered evidence in this case: Drs. Raymond Cohen, Anthony Mikulec, and James Palen. Only two of those doctors addressed medical causation in any significant way. Drs. Cohen and Mikulec agreed on three vital points: 1) hearing loss frequently causes tinnitus; 2) employee does not have compensable hearing loss; and 3) it is likely that employee's non-compensable hearing loss directly caused his tinnitus.

The issue is whether a compensable injury or occupational disease can be caused by a non-compensable injury or occupational disease.

In this case, Dr. Cohen and Dr. Mikulec generally agree that employee's high frequency hearing loss is the functional cause of his tinnitus, assuming one believes the employee's testimony that he has ringing in his ears. However, it is also clear that employee's high frequency hearing loss is not compensable under the current statutes and regulations. See§ 287.197; 8 CSR 50.5.060.

It is a logical non-sequitur to conclude that a non-compensable condition can lead to a compensable injury or occupational disease or condition. A non-compensable cause should be treated as a preexisting condition or condition developed outside the workplace and a resultant untoward event should be treated as an idiopathic event. As an example, if an employee had a congenital defect or condition of the connective tissue, does the spontaneous rupture of his patellar tendon while at work become compensable? Under many circumstances, the answer would be no, as the prevailing factor causing the event was not a work-related activity. Similarly, an employee injured by missing a step because of non-work related eye dysfunction should not be entitled to workers' compensation benefits.

These examples are strongly congruous with the instant case. Because employee's tinnituS-assuming one believes he has it-appears to have been caused from his non-compensable hearing loss, it should be treated as an idiopathic condition having no connection to his work for employer. Logically, employee is entitled to neither permanent partial disability for his tinnitus nor future medical in the form of audiologist visits, hearing aids, and batteries.

The administrative law judge relies on Malone v. Ogden Aviation Services, Insurance Company of the State of Pennsylvania, and Treasurer of Missouri as Custodian of the Second Injury Fund, lnj. No. 97-451376 (LIRC, January 18, 2002), affirmed without written opinion in Malone v. Ogden Aviation Servs. 84 S.W.3d 500 (Mo. App. 2002). Malone found that long-term exposure to high-pitched jet engine noise caused employee's tinnitus. This case is clearly distinguishable from Malone in that here, the uncontested testimony of the examining doctors

Injury No.: 16-028974

Employee: Tony W. Darby -2-

was that employee's high frequency hearing loss was the cause of his tinnitus, not the industrial noise that may have caused his non-compensable hearing loss.

The majority errs in affirming the administrative law judge's ruling that a compensable loss can result directly from a non-compensable loss.

Nature and extent of permanent partial disability related to employee's alleged tinnitus Employee's credibility regarding his claimed tinnitus and resulting disability is highly questionable. Both employee and employer's doctors sent employee to doctors for independent medical examination. Dr. James Palen examined employee in Cape Girardeau. While Dr. Palen recorded employee's complaint of tinnitus, he also recorded that employee told him he really had no issues or problems caused by the tinnitus. Employee confessed that he knew he was sent to Dr. Palen in support of his claim. Presumably, he told Dr. Palen, a friendly doctor, all he had to say regarding the nature and extent of his problems. Employee's failure to complain to Dr. Palen that his life was significantly affected by the tinnitus suggests that it was only a minor bother.

Employer sent employee to Dr. Anthony Mikulec for an independent medical examination to determine whether employee had any compensable injury or condition. When employee arrived at Dr. Mikulec's office, he was asked to fill out a questionnaire to help identify his problems. One of the questions asked him was whether he had "ringing in the ears." The employee checked "No". Dr. Mikulec relied on employee's denial of tinnitus and did not conduct his normal inquiry into the nature and extent of ringing in the ears. However, the doctor's independent medical examination report recorded that employee denied tinnitus.

Again, employee confessed he knew that employer sent him to see Dr. Mikulec was to determine if he had a condition for which employer would have to pay. Employee agreed it was in his best interest to tell Dr. Mikulec about all of his hearing related problems. Yet, he failed to appropriately mark the questionnaire and further missed his opportunity to tell Dr. Mikulec that he had ringing in his ears or, as he told Dr. Palen, that he really suffered no significant problems because of tinnitus.

Of the three doctors who examined employee and presented their opinions to the administrative law judge, only Dr. Mikulec has true standing in this specialized field. His opinions and testimony stand head and shoulders above the opinions offered by Drs. Cohen and Palen, despite the fact that there is some congruity and overlap in the opinions of all three doctors.

Only Dr. Cohen, the last doctor to evaluate employee, expressed the opinion that tinnitus had a significant impact on employee's life and that employee might benefit from using hearing aids as a masking device. It is notable that Dr. Cohen does not treat tinnitus patients, has never fit a hearing aid in his life, and testifies only for employees for a living.

It is worth noting that employee's tinnitus complaints grew progressively worse as three doctors evaluated him: Employee indicated to Dr. Mikulec that he did not have tinnitus at all. Employee told Dr. Palen that he had tinnitus but that it did not bother him. Employee told Dr. Cohen that he not only had tinnitus but that the condition gave him considerable problems in many areas of his life. The increase in employee's complaints over lime is suspicious and calls into question whether employee even has the complained-of condition.

II is equally noteworthy that during the years from the 1980's, when employee testified he first began to notice ringing in his eras, until the day employer's plant closed in March of 2016,

Injury No.: 16-028974

Employee: Tony W. Darby -3-

employee made no complaint to anyone regarding tinnitus. Despite employee's claims of major disturbances in his life from the tinnitus, employee sought no treatment of any sort on his own.

In light of employee's significant credibility problems, together with the completely subjective and unmeasurable nature of tinnitus, the administrative law judge improperly concluded that employee had the condition and that employee had problems from tinnitus, despite employee's extensive testimony. Because employee was not trustworthy and credible, neither are Dr. Cohen's opinions regarding nature and extent and the need for future medical aid.

In light of significant contradictory evidence in this case, employee failed to carry his burden of proof. Consequently, the administrative law judge's award is contrary to the greater weight of the evidence and should be reversed.

Because the majority has determined otherwise, I respectfully dissent.

(R~~'-Reid K. Forrester, Member

Employee: Tony Darby Injury No. 16-028974

Employee:

Dependents:

Employer:

Additional Party:

Insurer:

Appearances:

ISSUED BY DIVISION OF WORKERS' COMPENSATION

Tony Darby

NIA

FINAL AWARD

Noranda Aluminum, Inc.

NIA

Injury No. 16-028974

New Hampshire Insurance Co. clo Sedgwick Claims Management Services

Kimberly Heckemeyer, attorney for the employee. David Remley and Jason Crowell, attorneys for the employer-insurer.

Hearing Date: June 17, 2019 Checked by: LCK/kg

SUMMARY OF FINDINGS

1. Are any benefits awarded herein? Yes.

2. Was the injury or occupational disease compensable under Chapter 287? Yes.

3. Was there an accident or incident of occupational disease under the Law? Yes.

4. Date of accident or onset of occupational disease? On or about March 11, 2016.

5. State location where accident occuned or occupational disease contracted: New Madrid County, Missouri.

6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.

7. Did the employer receive proper notice? Yes.

8. Did accident or occupational disease arise out of and in the course of the employment? Yes.

9. Was claim for compensation filed within time required by law? Yes.

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10. Was the employer insured by above insurer? Yes.

11. Describe work the employee was doing and how accident happened or occupational disease contracted: The employee was exposed to prolonged harmful noises during his employment with Noranda Aluminum, Inc.

12. Did accident or occupational disease cause death? No.

13. Parts of body injured by accident or occupational disease: Left ear, right ear and body as a whole for tinnitus.

14. Nature and extent of any permanent disability: 10% permanent partial disability of the body as a whole for tinnitus.

15. Compensation paid to date for temporary total disability: None.

16. Value necessary medical aid paid to date by the employer-insurer: $1,070.00

17. Value necessary medical aid not furnished by the employer-insurer: NIA.

18. Employee's average weekly wage: $1,070.69

19. Weekly compensation rate: $713.39 for temporary total disability and $464.58 for petmanent partial disability.

20. Method wages computation: By agreement.

21. Amount of compensation payable: $18,583.20 for permanent partial disability.

22. Second Injury Fund liability: NI A.

23. Future requirements awarded: Yes, see Rulings of Law.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law.

The Compensation awarded to the employee shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the employee: Kimberly Heckemeyer.

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Employee: Tony Darby lnjmy No. 16-028974

STATEMENT OF THE FINDINGS OF FACT AND RULINGS OF LAW

On June 17, 2019, the employee, Tony Darby, appeared in person and with his attorney, Kimberly Heckemeyer, for a hearing for a final award. The employer-insurer was represented at the hearing by their attorneys, David Remley and Jason Crowell. The parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

UNDISPUTED FACTS:

1. Noranda Aluminum, Inc. was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by New Hampshire Insurance Co. c/o Sedgwick Claims Management Services.

2. On or about March 11, 2016, Tony Darby was an employee ofNoranda Aluminum, Inc. and was working under the Workers' Compensation Act.

3. The employer had notice of the employee's alleged occupational disease. 4. The employee's claim was filed within the time allowed by law. 5. The employee's average weekly wage was $1,070.69. His rate for temporary total

disability is $713.39 and permanent partial disability is $464.58. 6. The employer-insurer paid $1,070.00 in medical aid. 7. The employer-insurer paid no temporary disability benefits.

ISSUES:

1. Occupational disease 2. Medical causation 3. Claim for future medical 4. Nature and extent of permanent partial disability

EXHIBITS:

Employee Exhibits:

1. Report of Dr. Cohen dated May 17, 2018 2. Deposition of Dr. Cohen taken on November 8, 2018 including his C.V. and repott

Employer-Insurer Exhibits:

A. Cimiculum vitae of Dr. Mikulec B. Report of Dr. Mikulec dated October 27, 2016 C. Patient intake questionnaire and records from Dr. Mikulec D. Deposition of Dr. Mikulec taken March 15, 2018 E. Curriculum vitae of Dr. Palen F. Repott of Dr. Palen dated August 24, 2017

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Employee: Tony Darby Injury No. I 6-028974

Judicial Notice of the contents of the Division's file for the employee was taken.

STATEMENT OF THE FINDINGS OF FACT:

The employee testified that he is 64 years old and has been married for 38 years. He graduated from Twin Rivers High School in 1972. From 1972-1976 he worked at various part time and full time jobs. He had no work injuries. When he left those jobs he had no ringing in his ears or hearing loss. When he started working at Noranda Aluminum in 1976 he had no ringing in his ears. He worked at Noranda for almost 40 years from 1976 until the plant closed.

The employee testified that when he started at Noranda in 1976 he was not provided any hearing protection. At each area in the plant that he worked he was exposed to loud equipment and loud sounds from other sources. He was first assigned to metal products, which had loud equipment including billet saws, metal conveyors, furnaces, air handers, Hyster fork lifts, and overhead cranes. He was exposed to billet saws the whole shift. On a scale of 1-10, he rated the volume of the saws as an 8 out of I 0. He was exposed to overhead cranes periodically throughout the whole day and at times was exposed to more than one crane at the same time. Most of the time there were at least 2 cranes. The volume of the overhead cranes was a 4 out of 10. He was exposed to crashing of billets throughout most of the shift. Overhead cranes unloaded stacks of billets onto a table. Each billet was rolled off the table onto a ramp down to the billet saw. The billets crashed into each other, which created noise of6-7 out of 10. There were 2-3 furnaces that ran all of the time. He was in fairly close proximity to them and the volume was a 5 out of 10. He was around air handers which operated on air and tightened steel bands around the billets, then crimped and cut the bands. He was exposed to air handers all day long and the volume was a 5 out of I 0. He was exposed to Hyster forklifts. On average, there were 6-8 forklifts and each forklift had a volume of 4 out of I 0. He was in metal products from March of 1976 to November of 1976 and worked 8 hours a day and sometimes 16 hours a day.

The employee testified that in November of 1976, he moved to the air control area of the plant. In air control, there were reactors/scrubbers, which pulled dirty air out of the pot rooms and cleaned the air. There were 12 reactors/scrubbers in the pot room and 4 in carbon bake operations. He was around the reactors/scrubbers all day and the volume was a 7 out of I 0. In air control there was an ore trailer that looked like a tanker. It had an electric motor which took ore out and put the ore back into the reactors. He was around the ore trailer motor almost all day and at times operated it. The volume was around an 8 out of 10. He was in air control most of 1977 and never had any hearing protection.

The employee testified that he moved to the pot room in late 1977 or the first part of 1978. He was there several months and probably less than a year. He was exposed to steel crush breakers, which are air operated and broke the crush in the aluminum pots. There was a crush breaker in eve1y pot, which would periodically break the crush in the center of the pot. The crush breakers operated at least hourly but probably eve1y 15 minutes. He was exposed to the crush breakers periodically all day long and the volume was a 4-5 out of 10. He was exposed to an overhead crane that was used to put new carbon in the pots or remove old product from the pots. The volume of the crane was an 8 out of 10 when it was jackhammering old carbon. The crane

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never stopped working and he could always hear it operating in the different sections. He was exposed to air wrenches that tightened and untightened the clamps for 1.5 to 2 hours a shift. He was exposed to tappers that operated on air to remove metal from pots for maybe an hour each shift and he could hear them down the line in other sections. Other than the pots themselves, there were no physical batTiers between each section. The volume of the tapper was a 4-5 out of 10 and were running in some section most of the entire shift he was working. During the last 1. 5 hours of every shift, he was subjected to air reamers, which were used to clean crucible lids. The noise associated with the reamers cleaning the lids was pretty constant and the volume was an 8 of 10. He was exposed to noise from forklifts. At times he operated a forklift which had a volume of 3 out of 10. There were multiple bobcats operating about half of his shift. The volume level was 3-4 when just running but when scooping things it was a 5-6 out of 10. He was around metal haulers, which is a piece of mobile equipment. There was one metal hauler on each of the two lines which operated the whole shift with a volume of 5 out of 10. There was no hearing protection when he worked in the pot room.

The employee testified that he moved to carbon operations known as carbon bake in 1978 or 1979 and was there for 30 plus years. When he started he was not provided hearing protection. Around the mid-1980s, Noranda started providing hearing protection. In carbon bake, he was around an Anode baking furnace. The carbons used in the pot room came in from the green mill on conveyors into the center of the room. An overhead crane took the anodes into a pit and they were covered with coke for insulation. Burners then baked the anodes. When he first moved to carbon bake there were two furnaces and a third furnace was added when there was a third line created. The furnaces ran all day. Without hearing protection, the volume of the furnace was an 8 out of IO and with protection was 4-5 out of 10. The overhead cranes in carbon bake were louder than other overhead cranes in the other areas of the plant. He was around overhead cranes in carbon bake all day. Most of the time he was outside of the cranes but he did run an overhead crane for a number of years. The volume of the overhead cranes varied. They were not terribly loud if they were just running up and down the room. If they were removing coke out of the pits, there was an exhauster that ran to create the vacuum to get the coke out of the pits which made the most noise. That noise was an 8 out of 10 without hearing protection. With hearing protection it was a 5 out of 10. He was exposed to jackhammers which were used to rebuild flues. They used small jack hammers at times and used larger jackhammers to remove concrete and carbon blocks. At least one jackhammer was being used almost every day and at times two were being used. The volume of the small jackhammer was 7 out of 10 without hearing protection and with hearing protection was 4 out of 10. The volume of the large jackhammer without hearing protection was 8 out of 10 and 4-5 out of 10 with hearing protection.

The employee testified that in carbon bake there were up to 6 conveyors that made loud noise. Some of the conveyors were running all of the time during the shift. The volume of the conveyors without hearing protection was 5 out of 10 and with hearing protection was 3 out of 10. Quite often all of the conveyers were running at once. There were at least 2 cooling fans per room which ran simultaneously all of the time. He could hear the cooling fans from other rooms. At times there were more cooling fans added for a total of up to 4 to speed up the cooling process to get more inventory. Without hearing projection the volume of the cooling fans was an 8 and

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Employee: Tony Darby Injmy No. 16-028974

with hearing protection was a 5 out of 10. As a result of tearing out of old flues, there were fire bricks thrown into metal hoppers. The large overhead cranes would bring large metal hopper containers which were placed into the pits. The bricks would be tom out by hand and thrown manually into the hoppers. The bricks could be thrown into the hoppers the entire shift several times a week. Without hearing protection, the volume was 8 and with hearing protection it was 5 out of 10.

The employee testified that part of the carbon bake process was called roll over. The green carbon blocks would run into the roll over which was an L-shapep conveyor. The blocks would come in setting one way and the roll over would turn them over to setting a different way. The blocks would then continue to another conveyor. The noise level without hearing protection was about a 6 and with hearing protection was a 3 out of 10. He would hear the blocks hitting each other pretty much all of his shift.

The employee testified that during his time in carbon bake he had outside of work activities that involved loud noises including operating a lawnmower and a weed eater. From 2004 through 2009, he perfo1med dirt car racing every Friday night from April through September and wore hearing protection.

The employee testified that in 2012 he moved to maintenance /utility and worked there until Noranda closed. In maintenance /utility he worked throughout the plant and his exposure to noise varied due to his location in the plant. He was exposed to different types of equipment and different sounds from day to day. At times he worked in quiet areas. There were days that he worked in the same areas where he was previously assigned. Each section of the plant had warning ala1ms. In the pot rooms there was an alann that would sound when there was gas build up between carbon and metal and the gas had to be removed. The alarm went off periodically several times a shift and the volume was a 3-4 out of 10. There were alarms in carbon bake where all of the burners had alarms for gas and air pressure and those alarms went off 2-3 times a week. Without hearing protection it was a 6 out of 10 and with hearing protection it was a 3 out of 10. He was exposed to sounds from Associated Electric 2-3 times a week for an hour or maybe more when built up air pressure was released from their boilers. This happened a few times a week throughout his entire time at Noranda. Without hearing protection it was an 8 and with hearing protection it was a 5 out of 10.

He testified that he was also exposed to other gas and diesel engines that he had not previously discussed. There were combustion air blowers in the pot room and in carbon baking that were used for cleaning that shot compressed air out to remove substances. He heard the combustion air blowers periodically throughout his shift. Without hearing protection, the volume was a 6 or 7 and with hearing protection it was a 4 out of 10.

He testified that there was an explosion on August 4, 2015, and other explosions which periodically occmTed which caused noise and vibration. The explosions happened about once a year. The employee was never in the area where the explosions occurred but was close enough to hear them. The volume of the explosion sounds varied.

Page 6


The employee testified that he has no military experience. He deer hunts once a year. Some years he checks the accuracy of his scope, wears hearing protection and fires an average of 2-3 rounds. When he is deer hunting he usually fires one round.

The employee testified that he often worked 60 or more hours per week at Noranda. The company gave him hearing tests and at some point he noticed hearing loss. His last day of work at Noranda was March 11, 2016. He began to notice ringing in his ears, which was affecting his function more after he quit working. He cun-ently has tinnitus or ringing in his ears. The best way to describe it is cricket-like sound which is constant all of the time in both ears. At certain times of day in the mornings and afternoon it is louder. He has difficulty hearing the television and has complaints from his family that the television is turned up too loud. The tinnitus makes him feel tired. It is hard to tell which direction noises are coming from. It is worse in quiet areas and he hears ringing more. It gets worse when he gets tired. He has difficulty communicating on the telephone. The ringing makes it difficult to go to sleep and get back to sleep.

The employee testified that he has trouble hearing sirens and which direction the sirens are coming. It affects his ability to operate a motor vehicle; when backing up it is like backing up blind and is a distraction to him. The ringing causes problems with hearing people speaking and he has to ask people to repeat themselves, which frustrates him. It affects his ability to read instructions or read for pleasure. He has to reread things. If he is putting something together and has to go by directions he has to read it 4-5 times. At large gatherings it is difficult to participate in conversations and therefore he tries to avoid such gatherings. He feels like he is missing out on conversations and he has difficulty understanding his wife and grandchildren due to the ringing in his ears.

The employee testified that he has never worn hearing aids. There is no history of anyone in his family with hearing problems. The ringing in his ears has gotten worse since he left Noranda. It cause~ him anxiety, and he sometimes feels edgy and iJTitable. It has put a stress on his relationship with his family and friends. He uses a device called a sleep mate which makes the sounds of a fan and also uses an overhead ceiling fan on high to mask the noise. He takes the sleep mate with him when he travels. Ifhe does not bring it he regrets it. He has been told by a doctor that hearing aids might help his symptoms. He has not had any treatment on his own. Even with all of his problems due to ringing in his ears, he has not sought any treatment on his own. The employee is asking for award of permanent partial disability for ringing in his ears and future medial to provide hearing aids, batteries and appointments.

The employee filed a Claim for Compensation on July 7, 2016. Listed as paiis of the body injured was bilateral ears and body as a whole. The description of injury was the employee was exposed to constant loud noise and vibrations caused by various pieces of heavy equipment and the plant itself in addition to periodic explosions through his employment.

The employee saw Dr. Mikulec on September 29, 2016. His repo1i was dated October 27, 2016. Dr. Mikulec's deposition was taken on March 15, 2018. Dr. Mikulec testified that he is an otolaryngologist specializing in the treatment of the ear and related conditions. He has practiced at Saint Louis University since 2004. He is a tenured professor and on the medical

Page 7


staff. The vast majority of his teaching is hands on with residents and medical students. He spends 8 to 10 hours a day in the clinical practice of medicine with about 25% being spent with medical students and residents. He evaluated the employee for his hearing loss and tinnitus. He took a medical history which consists of several parts. One is the employee filling out several forms providing their background history including places of employment, whether they were in the military, hunting, and if they have tinnitus. There are other parts of the past medical history. When perfo1ming evaluations, he reviews the paperwork and interviews the employee directly regarding his occupational exposure.

The employee testified that he knew he was sent to Dr. Mikulec to evaluate his hearing loss and tinnitus case and to determine whether he had a condition that was caused at work that Noranda was responsible for. It was in his best interest and advantage to tell the doctor all of his problems. He was given paperwork to complete at Dr. Mikulec's office but does not think he completed the paperwork before he was called back for his hearing test.

Employer Exhibit C contains a 3-page patient questionnaire form dated and signed by the employee on September 23, 2016. In the review of systems in the section titled "Ears" there are boxes to check if it was affecting his health. The boxes listed were "Excessive noise exposure (e.g. loud music)", "Ear pain", "Loss of hearing", "Ringing in ears" and "Drainage". The only box checked was "Loss of Hearing". In the family history section, checked was hearing loss of the patient but not checked was any other family members having hearing loss.

Employer Exhibit C also contains a 2-page form dated September 29, 2016. On the first page it stated the Noranda hire date was March 12, 197 6 and the last day he worked was March 11, 2016. He wore hearing protection starting in the 1980s. Circled was being exposed to lawn equipment and hunting deer 1-2 rounds per year. There are handwritten circles with slashes tln·ough them with the words "explosion", "hearing aid", and "CVA/MI". On the second page circled "no" was the question whether he had "ringing in his ears or head sounds?" There is no signature line on this document.

Dr. Mikulec testified that some of the information on the sheets was filled out by the employee and some he had written himself. The employee said he did not have tinnitus. There was different handwriting on the various forms contained within his medical file. Dr. Mikulec's handwriting included the words heard no explosion, no hearing aid, no CV A, and no Ml.

Dr. Mikulec testified that, "the question states do you have ringing in the ears or other head sounds, then there is an opportunity to circle either yes or no. He circled no." Dr. Mikulec did not circle it and the presumption was that the employee had circled no himself. They do not watch the patients fill out the forms.

Dr. Mikulec testified that he did not know what the employee's handwriting looks like. Dr. Mikulec was asked whether it was possible that maybe someone in his office had completed the document before he had met with the employee and Dr. Mikulec stated, "That's not the standard protocol that's followed."

Page 8


The employee testified that Employer Exhibit C contains some of the paperwork that Dr. Mikulec' s office asked him to fill out. The handwriting on that document is his with the exception of his name on the top line. In review of systems, he checked loss of hearing but did not check that he had ringing in his ears. The employee signed his name on September 23, 2016.

Dr. Mikulec testified that in the questionnaire the employee denied that he had tinnitus/ringing in the ears. He was asked "And when you asked Mr. Darby yourself about ringing in the ears, did he deny the second time?" Dr. Mikulec answered, "I can't recall if I specifically asked him a second time or not. Generally if someone has circled no then I won't bring it up again."

The employee testified that a lot of his symptoms he testified to were not in Dr. Mikulec's report. He does not recall Dr. Mikulec asking him questions and he did not ask ifhe had trouble sleeping. He does not recall ifhe told the doctor that he had trouble knowing where sounds came from. He waited for the doctor to ask questions. Dr. Mikulec spent about 10 minutes at most with him and did not ask him about ringing or tinnitus in his ears.

Dr. Mikulec testified that he did not recall approximately how long he spent with the employee. He agreed that if there was a form that had a negative for tinnitus prior to meeting with the employee it could be highly likely that he would not have dug further into ringing in the ears. Dr. Mikulec stated that he did not have any recollection of the visit whatsoever and did not recall how long he had spent with the employee face-to-face during the evaluation.

The employee testified that he did not state in writing that he had ringing in his ears but told the person that performed the hearing test that he had ringing in the ears.

In Employer Exhibit B there is a SLUCARE Audiology report dated September 29, 2016. Noted in the history pmiion is positive tinnitus and positive noise exposure. It noted good speech understanding in both ears. A follow-up with an ENT was recommended.

Dr. Mikulec testified that the SLU audiology document dated September 29, 2016 said plus sign tinnitus in the history, which means positive for tinnitus. That was written down by Sarah Thomas, who is a good audiologist that no longer works at SLU. She did not say whether it is bothersome or not or what she meant by it. It was possible that that it was repmied to the audiologist that as of September 29, 2016 he suffered from tinnitus. He does not know and they did not discuss that. That was inconsistent with what the employee himself put on the questionnaire.

In Employer Exhibit B there are two Brown/Willen Audiology Center repmis dated October 4, 2016 and October 6, 2016, which diagnosed severe high frequency hearing loss and recommended a trial of bilateral hearing aids.

Dr. Mikulec's October 27, 2016 repmi stated that he saw the employee on September 29, 2016 for an evaluation regarding hearing loss and tinnitus as it related to his employment at Noranda from 1976 until March of 2016. Dr. Mikulec testified that there were three audiograms

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Employee: Tony Darby Injmy No. 16-028974

performed by a licensed audiologist. The first was done in St. Louis on September 29 and the other two were done closer to the employee's home. Dr. Mikulec factored in the three audiogram results into the hearing loss statute formula. The employee had a zero percent hearing loss in both ears under the Missouri Workers' Compensation statute. The employee has a high frequency hearing loss not within the compensable range of hearing range under the statute.

Dr. Mikulec testified that tinnitus is ringing or chirping in the ears but there is no way to measure or objectively evaluate the presence or absence of tinnitus or the severity/mildness of a case of tinnitus. The diagnosis is entirely dependent upon the statements and reports of the patient and is completely subjective. It is based solely upon clinical complaints and buttressed by other partially objective criteria such as prior patient visits to other physicians, use of hearing aids, history of running a fan at night, and a trial of other medications. Tinnitus would be a disabling condition ifit were interfering with a patient's ability to enjoy restful sleep.

Dr. Mikulec stated that the hearing loss aspect has to be separated out from the tinnitus aspect. The hearing loss makes it difficult for people to hear in certain frequencies and that is what causes the inability to communicate. The hearing loss also causes the tinnitus and it is not the tinnitus that causes the inability to communicate. Dr. Mikulec stated that it was the hearing loss that causes the inability to localize sounds and not the tinnitus. Dr. Mikulec stated that high frequency hearing loss in the majority of cases is due to age-related hearing loss and there can be occasional cases due to underlying ear pathology including viral conditions.

Dr. Mikulec agreed with the recommendation by The Audiology Center of a trial of the hearings aids for the high frequency loss and not for any compensable hearing loss. He stated that some physicians prescribe hearing aids to treat in part tinnitus. It was Dr. Mikulec's opinion that the employee does not have any compensable injury from tinnitus because he repmted that he did not have tinnitus. Dr. Mikulec stated that tinnitus can be caused by industrial noise exposure.

The employee testified that his attorney sent him to Dr. Palen. He saw Dr. Palen for a maximum of 5 minutes and did not get a chance to tell him ve1y much. He does not remember being asked how the tinnitus bothered him; and does not recall if he told Dr. Palen that he had trouble knowing where sounds came from.

Dr. Palen saw the employee on June 6, 2017. His rep01i was dated August 24, 2017. The employee gave a history of being employed at Noranda from 1976 until March of 2016. He started wearing ear plugs in the 1980s. The employee was exposed to constant loud noise and vibrations caused by various pieces of equipment, as well as the plant itself and periodic explosions. Dr. Palen noted the audiology tests in September and October of2016 and Dr. Mikulec's report. Dr. Palen stated at the present time the employee repmted constant ringing in both of his ears and difficulty hearing. The ringing does not bother him at night while he is sleeping but he has some difficulty understanding conversations especially in high noise environments. The ear, nose, and throat examination that he performed was normal. The employee had complaints of tinnitus. Dr. Palen noted that the symptoms of tinnitus are subjective and there were no means to test for that condition. The employee had some difficulty

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with speech discrimination. Dr. Palen diagnosed chronic tinnitus and hearing loss. It was Dr. Palen's opinion that the repetitive exposure to industrial noise at work was the prevailing factor causing his current condition. It was his opinion that the employee was at maximum medical improvement. It was Dr. Palen's opinion that the employee had sustained a 20% permanent partial disability of the person as a whole.

The employee testified his attorney sent him to Dr. Cohen. He was with Dr. Cohen for an hour to an hour and a half. He does not remember if he wrote down his problems with the tinnitus but discussed with him at length how the tinnitus was impacting him. He told Dr. Cohen that he had trouble knowing where sounds come from and that it stresses him not being able to hear his grandchildren. He does not remember telling Dr. Cohen that his best recollection was that the ringing in his ears started in the 1980s. He did not complain to anyone about the ringing in his ears until after the plant closed.

The employee saw Dr. Cohen on May 17, 2018. Dr. Cohen's deposition was taken on November 8, 2018. He spent about an hour and a half evaluating the employee. He is a board-certified neurologist. Approximately 70% of his time is devoted to the medical evaluations and 30% are for private neurological patients. He has been board certified as a neurologist since June 1990. During his career as a neurologist, he has diagnosed and treated individuals who suffer from ti1mitus. He actively treated patients with tinnitus and would see tinnitus patients about 3 times a week. Since he has been doing a lot of medical evaluations and ratings, he sees patients with tinnitus approximately 2 or 3 times a month. Dr. Cohen reads publications and attends courses on the treatment of tinnitus. At the time of his deposition he was about to attend a course on tinnitus, hearing aids, hearing amplification and other conditions related to tinnitus and hearing loss.

The history noted that the employee worked at Noranda Aluminum from 1976 through March 11, 2016, and he has not worked since the plant closed. He reported no significant exposure to noise outside ofNoranda. He deer hunted yearly and wore ear plugs when he was checking his scope. He would shoot once per year. He had never had exposure to significant noise that had bothered him outside ofNoranda. He has no family hist01y of any type of hearing loss, no personal history of cerebrovascular disease or cardiac hist01y and aside from hypertension medication that he began in January 2018, was not taking any other medications. He reported no side effects of medications that affected his hearing.

At Noranda the employee was around a significant amount of loud noise. He had many jobs at Noranda that were extremely loud including working with jackhammers, loud saws, compressed air, and aluminum hitting other aluminum. Beginning in the 1980s the employee was required to stmi wearing ear plugs. He began noticing hearing loss a long time ago but does not remember the exact time frame. His best recollection was that the ringing in his ears started in the 1980s when his job included throwing the bricks into the tank but he did not pay a lot of attention to it. It gradually became worse and began to bother him.

The employee told Dr. Cohen that the ringing in his ears can best be described as "crickets" that is present from the moment he wakes up until he goes to sleep. The only

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exception is when he mows the grass and wears ear plugs. Other than when mowing the grass, he has a constant ringing in his ears which he feels has progressively gotten worse as time goes by.

Dr. Cohen read Dr. Mikulec's report and deposition. The September 29, 2016 audiogram showed right ear moderately severe sensorineural hearing loss and left ear mild sloping to moderately severe sensorineural hearing loss. A trial of bilateral hearing aids was recommended. The October 6, 2016 audiogram showed a severe high frequency sensorineural hearing loss. On neurological exam, Dr. Cohen noted that the employee had difficulty hearing him when turned away. The finger rub, which is a test simply rubbing his finger back and forth by each ear, was severely reduced. The employee had difficulty hearing whispered sounds.

Dr. Cohen diagnosed industrial noise exposure and severe bilateral tinnitus. Based on the prior audiograms he also diagnosed bilateral hearing loss. It was his opinion that those diagnoses and conditions were as the direct result of the occupational disease he sustained due to industrial noise exposure. The employee's hearing loss is in the higher frequencies and the higher frequencies affected do not appear to be compensable hearing loss under the Missouri statute. He is relying on Dr. Mikulec's opinion that there is no compensable hearing loss.

Dr. Cohen agreed that a well-recognized cause of tinnitus is hearing loss and that hearing loss and tinnitus are frequently found together in a lot of patients. Dr. Cohen stated that the employee's high frequency loss was a factor in contributing to the development of the employee's tinnitus. The presence or absence of tinnitus cannot be identified in any testing, there is no test or scan or device that can be applied to a patient to independently document tinnitus; and in evaluating tinnitus doctors must rely upon the accuracy and honesty of patients.

It was Dr. Cohen's opinion that the prevailing factor in causing his symptoms, the need for medical care and treatment as well as the resulting disability is the work-related occupational disease that he sustained from his work up through March 11, 2016. It was his opinion that the prevailing factor in causing the primaiy work-related occupational disease was as a direct result of the occupational disease he sustained from his work at Noranda up through March 11, 2016.

It is his opinion the prevailing factor in the cause of his bilateral tinnitus was his industrial noise exposure due to his work at Noranda Aluminum. When asked if there was a way to diagnose severe tinnitus versus mild tinnitus other than through the reporting of the patient regarding the severity of the symptoms, Dr. Cohen stated that the detetmination is based upon obtaining an accurate description from the patient that is consistent with the condition of tinnitus that is described by other patients and in the textbooks and journals. If those symptoms are extremely distressing and causing anxiety or problems sleeping, problems with their family, you can get quite an accurate description of the severity. The patient's description of the disruption in his life is the yardstick to measure mild, moderate or severe tinnitus if it is consistent with what you would expect to see. When asked if tinnitus was a progressive disease that would continue to progress in absence of additional auditory insults, Dr. Cohen said that when the damage is done it can still get worse even if they are not having the exposure to the noise that originally caused it.

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The employee told Dr. Cohen that the ringing causes a lot of distress, as he can no longer hear the words in music. He has difficulty hearing the origin of sounds and has to ask people to repeat what they are saying. He has difficulty understanding what his wife is saying to him. He has difficulty hearing his grandchildren talk and being unable to understand what people in groups are saying. It was his opinion that the difficulty in determining where the sounds were coming from, what his wife was saying, inability to distinguish voices when is he is in a crowded environment were from both the hearing loss and tinnitus. His ability to concentrate is impacted on a daily basis. The employee had a difficult time concentrating when he reads. When he has to do something that requires him to understand directions, he must read it several times in order to understand. The ringing in his ears makes it difficult for him to focus. He uses a sleep mate, which is a small white noise masker, at night to mask the cricket sound.

It was Dr. Cohen's opinion that the employee sustained a 35% pe1manent partial disability of the whole person due to the severe tinnitus which developed from the longstanding industrial noise exposure. Dr. Cohen stated that from the history by the employee and review of the records there did not appear to be any other cause for the tinnitus,

Dr. Cohen stated that hearing amplification or hearing aids is very important for the masking effect to help both with the hearing loss and with the ringing to attempt to neutralize or mask it. It was Dr. Cohen's opinion that the employee would benefit from bilateral hearing amplification or hearing aids both for their effect on hearing and as hearing maskers for his severe tinnitus which has developed from his exposure to the loud noises from his work at Noranda. In addition to the bilateral hearing aids he would need to be provided with batteries when they need to be replaced. It was his opinion that the need for the hearing aids and the replacement batteries on an ongoing basis would be directly medically caused by the bilateral tinnitus, It is his opinion that the need for bilateral hearing aids and replacement batteries on an ongoing basis is directly medically causally related to his occupational noise exposure at Noranda. It is his opinion the prevailing factor in the cause of his need for his bilateral hearing aids was his industrial noise exposure due to his work at Noranda Aluminum.

RULINGS OF LAW:

Issue I. Occupational disease; and Issue 2, Medical causation

It is disputed that on or about March 11, 2016, the employee sustained an occupational disease arising out of and in the course of his employment; and that the employee's injmy was medically causally related to the alleged occupational disease.

Under Section 287.067.2 RSMo, an injury by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability,

Under Section 287.067.4 RSMo, loss of hearing due to industrial noise is recognized as an occupational disease and is hereby defined to be a loss of hearing in one or both ears due to

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prolonged exposure to harmful noise in employment. Harmful noise means sound capable of producing occupational deafness.

The compensability of job-related hearing loss is governed by Section 287. 197 RSMo and 8 CSR 50-5.060. Loss of hearing due to industrial noise for compensation purposes shall be confined to the frequencies of 500, 1000, and 2000 cycles per second. Loss of hearing ability for frequency tones above 2000 cycles per second are not considered as constituting disability for hearing.

Tinnitus is a compensable work-related iajmy separate and apart from accompanying hearing loss. See Thatcher vs. Trans World Airlines, 69 S.W. 3d 533 (Mo.App.2002); Poehlin vs. Trans World Airlines, Inc. 891 S.W. 2d 505 (Mo.App.1994); Lawrence vs. Anheuser-Busch Companies, Inc. 310 S.W. 3d 248 (Mo. App. 2010).

The employer-insurer's position is that the employee does not have tinnitus. This is based on information contained in two documents completed as part of the evaluation by Dr. Mikulec which are contained in Employer Exhibit C. The first was "no" being circled as to whether the employee had ringing in his ears or other head sounds. The second was the box not being checked that the employee had ringing in the ears.

It is imp01tant to note that Dr. Mikulec stated that he evaluated the employee for hearing loss and tinnitus. Dr. Mikulec could not recall ifhe specifically asked the employee ifhe had ringing in his ears but if someone circled no that they were not having ringing in his ears, generally he would not bring it up again and it was highly likely that he would not have dug any fmther about ringing in his ears. It was the employee's credible testimony that Dr. Mikulec did not ask him about ringing or tinnitus in his ears during his evaluation.

The employee's credible testimony was that he told the audiologist that performed the hearing test in St. Louis that he had ringing in his ears. The SLUCARE Audiology report showed a history of positive tinnitus and positive noise exposure. Dr. Mikulec stated that the positive history of tinnitus in the audiology report was written down by Sarah Thomas, an audiologist that worked at St. Louis University.

Dr. Mikulec stated that since the employee reported that he did not have tinnitus there cannot be a compensable injury from tinnitus. Dr. Palen diagnosed the employee with chronic tinnitus. Dr. Cohen diagnosed the employee with severe bilateral tinnitus.

The employee's testimony regarding his noise exposure at work, the problems with his loss of hearing and the problems with tinnitus is credible and persuasive. Based on a review of the evidence including the opinions of Dr. Cohen and Dr. Palen, I find that the employee has tim1itus.

With regard to hearing loss, Dr. Mikulec and Dr. Cohen agree that the employee does not have compensable hearing loss. It was Dr. Mikulec's opinion that the employee had a zero percent hearing loss in both ears under the Missouri Workers' Compensation statute. The

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employee has a high frequency hearing loss not within the compensable range of hearing under the statute. It was Dr. Cohen's opinion that the employee's hearing loss is in the higher frequencies and the higher frequencies affected do not appear to be compensable hearing loss.

It was Dr. Mikulec's opinion that the employee does not have any compensable injury from tinnitus because he reported that he did not have tinnitus. Dr. Mikulec stated that tinnitus can be caused by industrial noise exposure and can be caused by hearing loss.

It was Dr. Palen's opinion that the employee's repetitive exposure to industrial noise at work was the prevailing factor causing his cunent condition of chronic tinnitus and hearing loss.

It was Dr. Cohen's opinion that the employee's severe bilateral tinnitus and bilateral hearing loss conditions were the direct result of the industrial noise exposure. Dr. Cohen agreed that a well-recognized cause of tinnitus is hearing loss and that hem-ing loss and tinnitus are frequently found together in patients. Dr. Cohen stated that the high frequency hearing loss was a·factor in contributing to the development of the tirmitus. It was Dr. Cohen's opinion that the prevailing factor in causing his symptoms, the need for medical care and treatment as well as the resulting disability is the work-related occupational disease that he sustained. It was his opinion that the severe tinnitus developed from the longstanding industrial noise exposure and not from any other causes.

I find that the opinions of Dr. Cohen and Dr. Palen are very persuasive and are more persuasive than the opinion of Dr. Mikulec on tinnitus.

Based on all of the evidence, I find that the employee's prolonged occupational exposure to harmful noises during his employment at Noranda Aluminum Inc. was the prevailing factor in causing the resulting medical conditions and disabilities of bilateral hearing loss and severe bilateral tinnitus. I find that the employee sustained a compensable work-related occupational disease and injury that arose out of and in the course of his employment. I find that the employee's bilateral hearing loss and severe bilateral tinnitus m·e medically causally related to the employee's occupational disease.

Based on Section 287.197 RSMo and 8 CSR 50-5.060, I find that the employee's loss of hearing is not a compensable disability since his severe hearing loss is in the cycles higher than 2000. I find that the employee's tinnitus condition is a compensable disability.

Issue 3. Claimforfuture medical aid

The employee is requesting future medical aid. Under Section 287.140 RSMo, the employee is entitled to receive all medical treatment that is reasonably required to cure and relieve him from the effects of the work-related injury. In Landers v. C111ysler Corporation, 963 S.W.2d 275 (Mo. App. E.D. 1997), the Court held that it is sufficient to award medical benefits if the employee shows by "reasonable probability" that he is in need of additional medical treatment by reason of his work-related accident. Section 287.140.1 does not require that the medical evidence identify specific procedures or treatments in the future. See Talley v. Runny

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Meade Estates, Ltd., 831 S.W.2d 692, 695 (Mo. App. E.D. 1992). The employer may be ordered to provide medical treatment to cure and relieve the employee from the effects of the injury even though some of such treatment may also give relief caused by a pre-existing condition. See Hall v. Spot Martin, 304 S.W.2d 844, 854-55 (Mo. 1957) and Bowers v. Hiland Dairy Co., 188 S.W.3 79 (Mo. App. S.D. 2006). The Court in Bowers stated that in determining whether medical treatment is "reasonably required" to cure or relieve a compensable injury, it is immaterial that the treatment may have been required because of the complication of pre-existing conditions, or that the treatment will benefit both the compensable injury and a pre-existing condition. Once it is determined that there has been a compensable accident, a claimant need only prove that the need for treatment and medication flow from the work injury. The fact that the medication or treatment may also benefit a non-compensable or earlier injury or condition is irrelevant.

Dr. Mikulec agreed with the recommendation for a trial of the hearing aids for the high frequency loss which was not a compensable hearing loss. He further stated that some physicians prescribe hearing aids to treat in paii tinnitus. It was Dr. Palen's opinion that the employee was at maximum medical improvement. That is the extent of any opinion on future medical that was contained in Dr. Palen' s report.

Dr. Cohen stated that hearing amplification or hearing aids is very important for the masking effect to help both with the hearing loss and with the ringing to attempt to neutralize or mask it. It was Dr. Cohen's opinion that the employee would benefit from bilateral hearing amplification or hearing aids both for their masking effect on hearing and as hearing maskers for his severe tinnitus. In addition, replacement batteries would need to be provided. It was D.r. Cohen's opinion that the need for the bilateral hearing aids and the replacement batteries on an ongoing basis is directly medically causally related to his occupational noise exposure at Noranda. It is his opinion that the prevailing factor in the need for his bilateral hearing aids was his industrial noise exposure at Noranda.

I find that the opinion of Dr. Cohen is very persuasive and is more persuasive than the opinions of Dr. Mikulec and Dr. Palen on whether the employee is in need of additional or future medical treatment to cure and relieve him from the effects of his severe bilateral tinnitus.

Based on the evidence and case law, I find that the employee has sustained his burden of proof that he is in need of future medical aid. I find that the employee is in need of future medical treatment to cure and relieve him from the effects of his March 11, 2016 work-related occupational disease of severe bilateral tinnitus. The employer-insurer is ordered to provide the employee with all of the medical care that is reasonable and necessary to cure and relieve him from the effects of his work-related injury pursuant to Section 287.140 RSMo, including but not limited to the treatment recommendations of Dr. Cohen.

Issue 4. Nature and extent of permanent partial disability

Dr. Mikulec did not provide a rating on the tinnitus since he did not believe that the employee had that condition and therefore did not have a compensable injury.

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It was Dr. Palen's opinion that that the employee sustained a 20% permanent partial disability of the person as a whole as a result of the chronic tinnitus and hearing loss.

It was Dr. Cohen's opinion that the employee sustained a 35% permanent partial disability of the whole person due to the severe tinnitus.

Based on a review of the evidence, I find that asa direct result of the work-related tinnitus the employee sustained a 10% permanent partial disability of the body as a whole at the 400 week level. The employer-insurer is therefore ordered to pay to the employee a total of 40 weeks of compensation at the rate of $464.58 per week for a total award of pennanent partial disability of $18,583.20.

ATTORNEY'S FEE:

Kimberly Heckemeyer, attorney at law, is allowed a fee of25% of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein.

INTEREST:

Interest on all sums awarded hereunder shall be paid as provided by law.

I certify that on 9--i /o-/ 9 , I delivered a copy of the foregoing award lo the parties to the case. A complete record _of the method of delivery and dale of service upon each party is retained with the executed award in the Division's case file.

By __ 44AQ.ft1lV.I:___ __

Made by:

Lawrence C. Kasten Chief Administrative Law Judge

Division of Workers' Compensation

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Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION · 2020. 4. 2. · The above-entitled...

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