Gary Lawson v. Mississippi Lime Company

his tinnitus "does not appear to be troublesome to him." Transcript, page 118. Applying the rule of strict construction, we find no support for Dr. Mikulec's (essentially legal) conclusion that one cannot suffer compensable tinnitus without compensable hearing loss. As for Dr. Mikulec's testimony that employee has no disability due to tinnitus because it is insufficiently troublesome, we must point out that this conflicts with Dr. Mikulec's report wherein he rates a 0.5 % permanent partial disability of the body as a whole due to bilateral tinnitus.

Finally, we note that the requirement under § 287.190.6(2) RSMo that "objective medical findings shall prevail over subjective medical findings" has no application in a case such as this one where all experts agree that there are no objective criteria for identifying or measuring the disabling impact of tinnitus. Again, applying strict construction pursuant to $\S 287.800$, we cannot conclude that benefits are not owed in this case just because the existence of permanent disability cannot be established or measured objectively.

We defer to the administrative law judge's findings regarding employee's credibility and the nature and extent of permanent partial disability employee suffers referable to the compensable occupational disease of tinnitus. Because we otherwise agree with the administrative law judge's findings, analysis, and conclusions, we adopt them as our own without further comment.

We affirm and adopt the award of the administrative law judge, as supplemented herein.

The award and decision of Chief Administrative Law Judge Lawrence C. Kasten, issued November 12, 2013, is attached and incorporated by this reference.

The Commission approves and affirms the administrative law judge's allowance of an 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 $28^{\text {th }}$ day of March 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

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 October 11, 2010.
5. State location where accident occurred or occupational disease contracted: Ste. Genevieve County.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did 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.
10. Was employer insured by above insurer? Yes.

1. Describe work employee was doing and how accident happened or occupational disease contracted: The employee was exposed to prolonged harmful noises during his employment at Mississippi Lime Company.
2. Did accident or occupational disease cause death? No.
3. Parts of body injured by accident or occupational disease: Left ear, right ear and body as a whole.
4. Nature and extent of any permanent disability: 5% permanent partial disability of the body as a whole for tinnitus.
5. Compensation paid to date for temporary total disability: None.
6. Value necessary medical aid paid to date by employer-insurer: None.
7. Value necessary medical aid not furnished by employer-insurer: N/A.
8. Employee’s average weekly wage: 1,501.16.
9. Weekly compensation rate: 799.18 for temporary total disability and $418.58 for permanent partial disability.
10. Method wages computation: By agreement.
11. Amount of compensation payable: $8,371.60 for permanent partial disability.
12. Second Injury Fund liability: N/A.
13. Future requirements awarded: None.

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 15% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the employee: Robert Meyers.

On August 8, 2013, the employee, Gary Lawson, appeared in person and with his attorney, Robert Meyers, for a hearing for a final award. The employer-insurer was represented by its' attorney, Matt Mocherman. 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:

1. The parties agreed to have the hearing in Iron County, but the case is a Ste. Genevieve County venue case.
2. Mississippi Lime Company was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its' liability was fully insured by Ace American Insurance Company c/o ESIS Inc.
3. On or about October 11, 2010, Gary Lawson was an employee of Mississippi Lime Company and was working under the Workers' Compensation Act.
4. The employer had notice of the employee's alleged occupational disease.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was $\ 1,501.16. The rate of compensation for temporary total disability is $\ 799.18 and for permanent partial disability is $\ 418.58.
7. The employer-insurer did not pay any medical aid.
8. The employer-insurer did not pay any temporary disability benefits.

1. Occupational Disease.
2. Medical Causation.
3. Nature and Extent of Permanent Partial Disability.

A. Hearing loss records furnished by the employer-insurer.

B. Deposition, curriculum vitae and report of Dr. Mason, PhD.

1. Deposition of Dr. Mikulec.
2. Curriculum Vitae of Dr. Mikulec.
3. Report of Dr. Mikulec.

Judicial Notice of the Contents of the Division's File for the employee was taken.

WITNESS: Gary Lawson.

PROPOSED AWARDS: The employer-insurer's proposed award was received on August 26, 2013. The employee's proposed award was received on September 9, 2013.

The employee testified that he is 62 years old. He worked for 41 years at Mississippi Lime Company from June 11, 1969 until October 11, 2010. He worked in all parts of the plant. From the time he started until the 1990s no hearing protection was required. After that hearing protection was required. He used hearing protection before it was required and used cotton balls when he was jack hammering and tearing out bricks. He worked in several different locations in the plant which were all noisy. In 2000-2002 he worked in the bagging facility which was less noisy than the other, but he did wear hearing protection when he worked around blower trucks which was about 40 % of the time. Except for those two years, he always worked in areas of the plant that required hearing protection. Around 2005, he bid on and became a crane operator/machinist which was the last position he held with the company until he retired. At times he did not wear the required hearing protection when he was communicating on the radio.

The employee testified that he went deer hunting every fall when he was working, but probably has not gone in the last 7 years. He used a . 243 rifle to hunt deer. In a typical deer hunt he would fire once or twice. He did not wear hearing protection when he hunted. Since he retired he goes target shooting with a .17 HMr, .22 and .22 magnum. Now he wears noise reduction head phones when he target shoots. He shoots 1.5 to 2 hours maybe twice a month. Around 1995-1996 he went to Dr. Burk and Dr. Herzog for hearing problems.

On September 20, 1996, Dr. Burk stated in a letter that the employee was having difficulty with his hearing, and that many times a hearing loss at the 4000 range is due to exposure to persistent noise such as diesel engines or machinery. Dr. Burk advised the employee to avoid noise exposure in the future.

On October 14, 1996, Dr. Herzog stated in a letter that the employee has a history of bilateral high-frequency sensorineural hearing loss at 4000 Hz and above with the left ear worse than the right. He recommended that the employee avoid significant noise exposure and if noise levels exceed OSHA stand