| FINAL AWARD ALLOWING COMPENSATION (Reversing Award and Decision of Administrative Law Judge) |
| Employee: | Fred Golleher |
| Employer: | McDonnell Douglas Aircraft Co. (Settled) |
| Insurer: | Self-Insured c/o Broadspire (Settled) |
| Additional Party: | Treasurer of Missouri as Custodian of Second Injury Fund |
| This cause has been submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by §287.480 RSMo. We have reviewed the evidence and briefs, heard the parties’ oral arguments and we have considered the whole record. Pursuant to §286.090 RSMo, the Commission reverses the award and decision of the administrative law judge, as it relates to Second Injury Fund liability, dated September 8, 2008. |
| Preliminaries |
| The administrative law judge heard this matter to consider: 1) employer’s liability for past medical expenses; 2) employer’s liability for future medical care; 3) the nature and extent of permanent partial or permanent total disability; and 4) the nature and extent of any Second Injury Fund liability. |
| The administrative law judge found that employer is not liable for employee’s past medical expenses. However, the administrative law judge did find employer liable for employee’s future medical expenses related to his hearing aids. The administrative law judge further found that as a result of employee’s industrial noise exposure while employed with employer, he sustained 49.9% hearing loss and awarded employee $31,800.77. Lastly, the administrative law judge determined employee was permanently and totally disabled prior to his hearing loss and, therefore, the Second Injury Fund has no liability. |
| Employee appealed to the Commission alleging the administrative law judge erred by failing to use the proper legal criteria to determine permanent total disability and reimbursement of past-partial payment for hearing aids. |
| Employee has since settled his case against employer and they submitted a Stipulation for Compromise Settlement to the Commission. Said settlement was approved by the Commission on March 25, 2009. Therefore, the only issue currently before the Commission concerns the nature and extent of any Second Injury Fund liability. |
| Findings of Fact |
| The findings of fact and stipulations of the parties were recounted in the award of the administrative law |
judge; therefore, the pertinent facts will merely be summarized below.
Employee began working for employer in 1966 and, except for a brief stint in the military from 1968-1970; he was continuously employed by employer until his retirement on September 30, 2004. While employed by employer, employee primarily worked as a machinist in the loudest buildings on employer's campus. From 1981-1985, employee also worked as a business representative for the union.
In addition to the primary injury, employee had a history of significant medical conditions and problems. Employee weighs approximately 330 pounds and has had trouble with obesity since the mid 1990's. At age 4, he sustained a fractured right knee when a car hit him. Later when he was in the Army it was determined that he had a ligament sprain in that knee. In 1991, employee was in an automobile collision that also damaged his right knee. He had surgery on his right knee in 1993 and 1994. However, despite the surgeries, his knee continued to give out on him occasionally, including while he was at work. Employee testified that as a result of his knee instability he once fell at work requiring first aid in an ambulance. Due to the instability in his knee he walks down stairs sideways.
In the 1980's employee had right and left forearm fibroid tumors. During a 1999 visit at St. John's Mercy, a review of employee's systems by Dr. Richard Pennell indicated esophageal reflux. Employee has hiatal hernias for which he had surgery and he also has extensive diabetes.
Employee has suffered severe cases of pneumonia which required hospital stays and was later diagnosed as having chronic obstructive pulmonary disease (COPD). Due to this disease, he has had trouble breathing since 1998. He is constantly short of breath and fatigued.
In 2002, employee suffered a heart attack at work and was taken to St. Joseph's Hospital in St. Charles, Missouri where Dr. D'Orazio performed a triple bypass. Following said surgery, he was diagnosed with triplevessel coronary artery disease, COPD, obstructive sleep apnea, and gastroesophageal reflux disease. Employee was given temporary restrictions, but before he left employer in September of 2004, he did not have any permanent restrictions for any conditions.
As for employee's primary injury, he began really noticing his hearing loss during his time as a business representative for the machinist union from 1981-1985. Employee testified that he had a lot of problems communicating with people because he could not hear them. He stated that in conference rooms he could hear the noise, but could not understand what people were saying. Employer sent him for hearing tests from time to time and he received his first set of hearing aids in the mid 1980s. He testified that he has had approximately 5 or 6 sets of hearing aids and received his latest set in 2007. Employee's hearing loss and use of hearing aids is documented in various medical records from the 1990s. Specifically, on December 30, 1999, Dr. Paulk documented decreased hearing and included in his note, "hearing aids for 6 years."
There is no congenital hearing loss in employee's family and employee testified that there is no doubt in his mind that the environment that he worked in with his employer caused his hearing loss. He further testified that if he did not have his hearing loss, he would be able to work and that he cannot tell any major hearing loss since he left employer in 2004. There is no audiogram or other evidence establishing evidence of hearing loss before employee began his employment with employer.
Dr. Karen Boone initially saw employee with regard to his hearing loss on June 27, 2002 and has continued to see him since. She testified that she has been to employer's place of business and observed the noise environment in which employee worked and stated that it was loud enough to create noise induced hearing loss. Dr. Boone opined employee had a 68.8 % binaural hearing loss under the regulations, with one-half of the loss or 34.4 % binaural hearing loss attributable to the noise at employer's machine shop. This was based upon an arbitrary allocation of 50 % of his hearing loss being noise induced.
Dr. Boone testified that she was of the opinion that employee requires hearing aids for his hearing loss, which is attributed to his employment with employer.
Dr. John McKinney also felt that employee had suffered significant hearing loss, but disagreed with Dr. Boone's methodology used for her calculations. Dr. McKinney performed three audiograms and calculated employee's binaural hearing loss at 49.9 %. Dr. McKinney attributed employee's hearing loss to years of industrial noise exposure. Dr. McKinney agreed with Dr. Boone's finding that employee had progressive hearing loss not related to his industrial noise exposure. He also agreed with Dr. Boone's arbitrary assignment of 50 % of the disability related to work and 50 % not work related.
Dr. Robert Poetz evaluated employee on February 19, 2007 and provided an Independent Medical Evaluation. In addition to employee's hearing loss, Dr. Poetz's report documented that employee had a past medical history significant for diabetes, hypertension, coronary artery disease, and COPD. In addition, Dr. Poetz documented employee's shortness of breath, triple vessel coronary artery bypass, sleep apnea and right knee problems. Dr. Poetz assigned the following disability ratings for each injury and medical condition: 35 % permanent partial disability to the body as a whole due to binaural hearing impairment resultant from the work related injury occurring up to September 30, 2004; 30\% permanent partial disability to the body as a whole measured at the cardiovascular system, pre-existing; 25\% permanent partial disability to the body as a whole due to diabetes, pre-existing; 25\% permanent partial disability to the body as a whole due to COPD, pre-existing; 15\% permanent partial disability to the body as a whole due to sleep apnea, pre-existing; 20 % permanent partial disability to the body as a whole as measured at the abdomen, pre-existing; and 35\% permanent partial disability to the lower right extremity as measured at the right knee, due to his injury at age 4 and 1993 car accident.
Dr. Poetz considered all of employee's preexisting medical conditions and problems and opined that he is permanently and totally disabled as a result of the combination of his work-related binaural hearing impairment and his preexisting medical conditions.