John Francis Lamb v. St. Louis Public Schools

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. We have reviewed the evidence, read the briefs of the parties, and considered the entire record. Pursuant to section 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge dated October 12, 2006.

The issues in dispute and summary of the evidence were accurately recounted in the October 12, 2006, award issued by Administrative Law Judge Matthew D. Vacca and will not be repeated by the Commission unless special emphasis necessitates. That award and decision is attached hereto and incorporated to the extent it is not inconsistent with the instant award.

The administrative law judge found that employer had been given proper notice of employee's claim. The administrative law judge also found that the noise employee was exposed to at work was a substantial cause of employee's hearing loss and awarded employee compensation for that hearing loss.

Employer filed an Application for Review with the Commission alleging the administrative law judge erred in that the award was not supported by substantial and competent medical evidence, that the administrative law judge erred in finding Dr. Berkowitz more credible than Dr. McKinney, and that the award failed to take into account the hearing loss findings of Dr. McKinney.

The Commission agrees that employer received proper notice of employee's claim. However, as discussed below, the Commission finds that Dr. McKinney's medical opinion is the most credible, logical and persuasive, and therefore, that employee has not sustained his burden to show more convincingly that his work for employer was a substantial cause of his hearing loss. Consequently, the administrative law judge's award of benefits to employee is reversed. II. Medical Causation

The claimant in a workers' compensation case has the burden to prove all essential elements of his claim, *Cook v. St. Mary's Hosp.*, 939 S.W.2d 934, 940 (Mo.App. 1997), *overruled on other grounds by Hampton v. Bigboy Steel Erection*, 121 S.W.3d 220, 226 (Mo. 2003), including "a causal connection between the injury and the job[.]" *Williams v. DePaul Health Ctr.*, 996 S.W.2d 619, 631 (Mo.App. 1999), *overruled on other grounds by Hampton*, 121 S.W.3d at 226.

"An injury is compensable if it is clearly work related." Section 287.020.2, RSMo. 2000. "An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability." Id. An injury is not compensable merely because work was a triggering or precipitating factor. Id.

"An occupational disease is compensable if it is clearly work related and meets the requirements of an injury which is compensable as provided in subsections 2 and 3 of section 287.020." Section 287.067 RSMo. 2000. The employee must establish, generally through expert testimony, the probability that the claimed occupational disease was caused by conditions in the work place. Dawson v. Associated Elec., 885 S.W.2d 712, 716 (Mo.App. 1994). The employee bears the burden of proving a direct causal relationship between the conditions of his employment and the occupational disease. Jacobs v. City of Jefferson, 991 S.W.2d 693, 696 (Mo.App. 1999).

In order to support a finding of occupational disease, employee must provide substantial and competent evidence that he/she has contracted an occupationally induced disease rather than an ordinary disease of life. The inquiry involves two considerations: (1) whether there was an exposure to the disease which was greater than or different from that which affects the public generally, and (2) whether there was a recognizable link between the disease and some distinctive feature of the employee's job which is common to all jobs of that sort.

Kelley v. Banta \& Stude Const. Co., Inc., 1 S.W.3d 43, 48 (Mo.App. 1999) (citations omitted).

"Determinations with regard to causation and work-relatedness are questions of fact to be ruled upon by the Commission . . ." Bloss v. Plastic Enter., 32 S.W.3d 666, 671 (Mo.App. 2000) overruled on other grounds by Hampton, 121 S.W.3d at 226. Furthermore, in making such determinations, the Commission is the judge of the credibility of witnesses and has discretion to determine the weight to be given opinions. Id. Medical causation not within common knowledge or experience must be established by scientific or medical evidence showing the cause and effect relationship between the complained of condition and the asserted cause. Selby v. Trans World Airlines, Inc., 831 S.W.2d 221 (Mo.App. 1992).

The ultimate determination of credibility of witnesses rests with the Commission; however, the Commission should take into consideration the credibility determinations made by the administrative law judge. When reviewing an award entered by an administrative law judge the Commission is not bound to yield to his or her findings including those relating to credibility, and is authorized to reach its own conclusions. An administrative law judge is no more qualified than the Commission to weigh expert credibility from a transcript or deposition. Kent v. Goodyear Tire \& Rubber Co., 147 S.W.3d 865 (Mo.App. 2004).

The parties placed the following issues in dispute: notice; medical causation as to employee's hearing loss; past medical expenses due to employee's hearing loss; permanent partial disability benefits relating to employee's hearing loss; and future medical benefits relating to employee's hearing loss.

The Commission finds that employer received proper notice of employee's claim. The Commission further notes that due to the fact that we find that employee's hearing loss not to be medically causally related to his work, the remaining issues are moot.

The only expert testimony that could conceivably establish medical causation between employee's work and his resultant medical condition was the testimony of Dr. Berkowitz. The Commission is not persuaded by the explanation of Dr. Berkowitz as to how employee's work was a substantial factor in causing employee's resultant hearing loss. We do not believe this finding to be supported by the evidence. It is apparent from his testimony that Dr. Berkowitz did not have sufficient history of employee's work history to form a convincing opinion of employee's condition.

The more credible and persuasive testimony of Dr. McKinney is that the noise employee was exposed to in the performance of his job was not a substantial cause of employee's hearing loss. Dr. McKinney believes that employee had progressive sensori-neural hearing loss which was not caused by his work because: (1) it is an idiopathic disease; (2) employee wore hearing protection while working; and (3) employee had further hearing loss

after he retired in 2002 and was no longer exposed to the noise.

Dr. McKinney examined employee on September 30, 2005, October 3, 2005 and October 5, 2005. He also reviewed Dr. Berkowitz's report and employee's audiograms that were performed in 1992, 1999 and 2002. Dr. McKinney opined that employee had progressive sensori-neural hearing loss or fluctuating progressive sensorineural hearing loss. This was based on his observation that employee's 1992 and 1999 audiograms showed no hearing loss, the 2002 audiogram showed binaural hearing loss of 8.4 %, the May 2005 audiogram performed by Dr. Berkowitz showed binaural hearing loss of 40 %, and Dr. McKinney's audiograms from September and October 2005 showed a 12.6 % binaural hearing loss. This demonstrated that employee's hearing fluctuated and actually got better between May 2005 and October 2005.

Dr. McKinney also testified that once a person is removed from a noise source, he or she cannot develop further hearing loss from that noise. Since employee retired in 2002, and his hearing continued to deteriorate, it is apparent that the noise he was exposed to at work was not the source of his hearing loss. Logically then, that noise could not have been a substantial cause of employee's hearing loss. Accordingly, the Commission concludes that employee's work was not a substantial factor in causing his hearing loss

The Commission determines and concludes that based on the more credible, convincing and persuasive evidence, the noise that employee was exposed to in the course and scope of his employment was not a substantial factor in the cause of his hearing loss. While it is clear that employee was exposed to noise at work which he classifies as loud, Dr. McKinney's expert medical testimony shows that there is no recognizable link between employee's hearing loss and this noise. Therefore, employee has failed to show by competent and substantial evidence that he has a compensable occupation disease.

Based on the foregoing, the Commission concludes and determines that employee does not have a compensable occupational disease and reverses the award of the administrative law judge dated October 12, 2006.

Given at Jefferson City, State of Missouri, this $\underline{22^{\text {nd }}}$ day of June 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers'

Compensation Law, I believe the decision of the administrative law judge should be affirmed.

Both employer's and employee's medical experts agree that employee has hearing loss and that this loss began to occur sometime between 1999 and 2002 while working for employer. During this time, and in the performance of his job duties, employee was exposed to loud noise.

Employer's medical expert, Dr. McKinney, provided evidence that employee experienced hearing loss during this time. However, he does not believe that the hearing loss was a result of the loud noise at work. Dr. McKinney had no opinion as to why employee began to lose his hearing during his tenure with employer.

Employee's medical expert, Dr. Berkowitz, also determined that employee suffered a loss of hearing. It was of his opinion that this loss was caused by employee's exposure to the loud noise at work while in small concrete rooms. I agree with the administrative law judge that Dr. Berkowitz appears more credible and that his opinion is more logical and scientific than Dr. McKinney's blanket opinion that the hearing loss was simply not caused by employee's work exposure to loud noise. Dr. Berkowitz also believes that employee's hearing loss will continue to deteriorate because of the damage caused by the performance of his job duties.

Based on the above, I believe that employee has carried his burden of establishing a medical causal relationship between his job as a sheet metal worker and his hearing loss. Employee has shown through expert medical testimony that the performance of his job duty exposed him to the hazard of hearing loss, that this exposure was greater than that to the public in general, and that in fact, his performance of his duties caused his hearing loss.

I would affirm the award of the administrative law judge a