Employee worked for employer as an auto mechanic. As a mechanic, employee changed power steering pumps, engines, did valve jobs and listened for causes of engine noises.
On July 11, 2007, employee was assigned to investigate the cause of an engine noise on a customer's car. To perform this task, employee used a mechanic's stethoscope, which is designed with a rod and diaphragm to amplify noises to hear them more clearly. As he was probing different engine areas, employee stated that he applied the stethoscope to the alternator when something "popped very loud inside of it." Employee described that because he was using the stethoscope, the pop "sounded like a stick of dynamite going off in [his] ears."
Employee described that he was deafened by the noise and immediately reported the injury to employer. He was instructed by employer to go to urgent care. Dr. Jones' records reflect that employee presented for medical care on July 11, 2007. Dr. Jones recorded that employee "was listening with a stethoscope and got a loud noise through it" and "he now has buzzing and ringing in his ears." Follow-up appointments with Dr. Jones revealed that employee's hearing improved, but he continued to have ringing in his ears and hearing loss at high frequencies.
On August 9, 2007, employee was referred to Dr. Major. Dr. Major's records indicate that employee had been experiencing hearing loss and ringing in both ears following use of a "mechanic's stethoscope when something popped." Dr. Major diagnosed hearing loss and unspecified tinnitus. Dr. Major recommended hearing protection and hearing aids. He further noted that employee needed "recheck annually." Dr. Major prescribed a trial of lipoflavinoids for employee's tinnitus and recommended that he sleep with a fan at night to mask the ringing. Dr. Major also believed that the hearing aids would help mask some of the ringing.
Employee was fitted with hearing aids for both ears. Employee understood that the hearing aids were programmed to help reduce the ringing and humming in both of his ears. Employer paid for his hearing aids.
Employee was later referred to Dr. Mikulec. Dr. Mikulec recorded that employee "has had bilateral tinnitus since the incident in question." Dr. Mikulec went on to note that he believes tinnitus "occurs commonly in adult populations in individuals exposed to and not exposed to industrial noise or head trauma." Dr. Mikulec further opined that the "presence or absence of tinnitus is generally based on patient history taken at base [sic] value." Dr.
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Mikulec testified that "[i]f asked for a medical opinion on tinnitus, [he] repl[ies] 0.5% permanent partial disability of the whole person for the presence of tinnitus in each ear, which may be of an industrial cause." In employee's case, though, Dr. Mikulec believed that because employee had "no hearing loss according to Missouri criteria, it is [his] medical opinion that [employee] has 0% disability related to his tinnitus."
On November 29, 2010, employee was seen for a medical evaluation by Dr. Guidos. Dr. Guidos recorded that employee has a history of hearing loss with associated constant high-pitched ringing and low pitched humming in both ears as a result of a work-related injury that occurred on July 11, 2007. Dr. Guidos went on to state that "[a]t that time, he was listening to an engine with a mechanical stethoscope when the alternator 'popped,' making a very loud noise resulting in hearing loss and tinnitus."
Dr. Guidos opined that employee is at maximum medical improvement from his work related injury of July 11, 2007. She noted, however, that employee continues to have bilateral sensorineural hearing loss and tinnitus which is disabling. Dr. Guidos concluded that employee is "entitled to 15% of the whole person for persistent and constant tinnitus."
Employee testified that he continues to have problems hearing without the use of his hearing aids. Employee further stated that when he takes his hearing aids out, the "full blast of ringing is there" which makes it difficult to sleep and he uses over-the-counter sleep aids to help him sleep.
The ALJ found that employee failed to meet his burden of proof that the July 11, 2007, work accident was the prevailing factor in causing employee's tinnitus. The ALJ reasoned that neither Dr. Mikulec nor Dr. Guidos "stated whether the employee's July 11, 2007, work accident was the prevailing factor or primary reason that the employee had tinnitus." The ALJ asserted that all other issues were moot and were not to be ruled upon.
Discussion
Section 287.120 RSMo "requires employers to furnish compensation according to the provisions of the Worker's Compensation Law for personal injuries of employees caused by accidents arising out of and in the course of the employee's employment." Gordon v. City of Ellisville, 268 S.W.3d 454, 458-59 (Mo. App. 2008).
Section 287.020.2 RSMo defines "accident" as: "[A]n unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift."
Pursuant to § 287.020.3 RSMo, an "injury" is defined to be "an injury which has arisen out of and in the course of employment." Section 287.020.3 RSMo further states that:
An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. 'The prevailing factor' is defined to be the primary factor, in
In my opinion, there is no question that an accident occurred at work on July 11, 2007, and that the accident was the prevailing factor in causing employee's tinnitus. The ALJ denied employee's claim based on the fact that no doctor used the specific statutory language that the accident was the "prevailing factor" in causing employee's tinnitus. I find that the ALJ erred in arriving at this conclusion. It is well settled under Missouri Workers' Compensation Law that medical causation can be found in cases that lack a medical expert using the specific statutory language.
In Mayfield v. Brown Shoe Co., 941 S.W.2d 31 (Mo. App. 1997), the court held that "[t]he words a medical expert uses ... are often important, not so much in and of themselves, but as a reflection of what impressions such witness wishes to impart." Id. at 36 (citations omitted). The court in Sanderson v. Porta-Fab Corp., 989 S.W.2d 599 (Mo. App. 1999) cited Brown and also provided further guidance on the issue. It held that "[t]he Commission, and not the physician, is the trier of fact in workers' compensation cases. Therefore, even if a testifying physician fails to use the exact words of Section 287.020.3, we will affirm the Commission's award if the substance of the physician's testimony establishes that there is substantial evidence upon which to base the award." Id. at 603 (citations omitted).
The only factor presented in evidence for causing the tinnitus was the work accident of July 11, 2007. While it is true that Dr. Guidos did not use the specific "prevailing factor" language, a full and logical reading of her report makes clear that she is of the opinion that employee's tinnitus was caused by the work accident. Dr. Guidos concluded that employee is "entitled to 15 % of the whole person for persistent and constant tinnitus." It is clear that Dr. Guidos was referring to 15 % permanent partial disability benefits. Dr. Guidos is familiar enough with workers' compensation claims to not state that employee is "entitled" to said benefits if she does not believe that the accident was the prevailing factor in causing employee's tinnitus.
Dr. Mikulec stated that the diagnosis of tinnitus is based on patient history, but he did not even analyze employee's history before concluding that because employee has no disability due to hearing loss, he also has no disability due to tinnitus. This conclusion is illogical considering hearing loss and tinnitus are two separate injuries. For this reason, I do not find Dr. Mikulec's opinion persuasive at all.
The evidence supports employee's contention that he never experienced ringing in his ears until after the July 11, 2007, accident. While the causation of tinnitus in some cases is nearly impossible to determine, in this case it is not. The entire record supports a finding that the accident on July 11, 2007, medically caused employee's tinnitus. For this reason, I disagree with the ALJ and the majority and conclude that the July 11, 2007, work-related accident was the prevailing factor in causing employee's tinnitus.
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Having found that the July 11, 2007, accident was the prevailing factor in causing employee's tinnitus, I further find that the record is clear that employee's tinnitus will require future medical care and that he is permanently and partially disabled as a result of his tinnitus.
**Conclusion**
In light of the foregoing, I find that employee should be awarded future medical care and permanent partial disability benefits. As such, I would reverse the award of the administrative law judge and award employee the same.
Therefore, I respectfully dissent from the decision of the majority of the Commission.
Curtis E. Chick, Jr., Member