Kathy Hall v. Solo Cup Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 10-113656

Employee: Kathy Hall

Employer: Solo Cup Company (Settled)

Insurer: Zurich American Insurance (Settled)

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

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 February 18, 2015. The award and decision of Administrative Law Judge Margaret Ellis Holden, issued February 18, 2015, 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 $4^{\text {th }}$ day of September 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

DISSENTING OPINION FILED

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

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 Commission should reverse the award of the administrative law judge.

Employee alleges her present primary injury, tinnitus, causes her to suffer problems with speech discrimination. She testified she has trouble understanding what people say on television. Dr. P. Brent Koprivica testified on employee's behalf, and opined that her speech discrimination issues were an impairment and he restricted her from any job requiring normal speech discrimination. He noted that claimant's audiograms, which showed hearing loss at high frequencies, were consistent with tinnitus. However, he was unaware of any objective test that could measure the impact of tinnitus. Dr. Koprivica believed claimant was permanently and totally disabled as a result of the combination of claimant's pre-existing injuries and her subjective complaints that her tinnitus caused her to have trouble with speech discrimination. Wilbur Swearingin, a vocational expert, opined that employee was unable to compete in the open labor market as a result of the combination of her pre-existing conditions and her tinnitus. He based his opinion on Dr. Koprivica's restrictions, which eliminated any jobs that required normal speech discrimination.

Dr. Allen J. Parmet testified that while tinnitus is subjective in nature, a person's ability to hear and understand speech could be objectively measured. He stated "if you want to test the effect of tinnitus in impeding someone's ability ... to appreciate the spoken word, you do speech reception threshold testing. And if the speech reception threshold is normal, then they're not impaired from the tinnitus." Claimant received speech recognition testing, and the results indicated a normal ability to understand spoken words.

§ 287.190.6(2) RSMo provides, in relevant part, as follows:

In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests or diagnostic procedures.

The only restriction placed on employee due to her tinnitus was based on her lack of normal speech discrimination. I credit Dr. Parmet's testimony that the only objective evidence in the record regarding claimant's ability to understand speech showed she had a normal ability to understand the spoken word. Because § 287.190.6(2) requires objective evidence prevails over subjective evidence of complaints, I would conclude that employee did not show any actual disability exists due to her tinnitus.

It naturally follows that employee has not proven the combination of the last injury (tinnitus) and her significant pre-existing injuries resulted in total disability. The Second Injury Fund is only liable for PTD under § 287.220.1 when the employee "establishes that he is permanently and totally disabled due to the combination of his present

Injury No. 10-113656

Employee: Kathy Hall

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compensable injury and his preexisting partial disability." Lewis v. Treasurer of Mo., 435 S.W.3d 144, 157 (Mo. App. 2014). Because employee has not established that she is permanently and totally disabled due to the combination of the tinnitus and her preexisting conditions, I would not find the Second Injury Fund is liable.

Because the majority has determined otherwise, I respectfully dissent.

James G. Avery, Jr., Member

Employee: Kathy Hall

Injury No. 10-113656

Dependents: N/A

Employer: Solo Cup Company

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Insurer: Zurich American Insurance

Hearing Date: $\quad 11 / 18 / 14$

Checked by: MEH

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: $12 / 12 / 10$
5. State location where accident occurred or occupational disease was contracted: GREENE COUNTY, MO
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
11. Describe work employee was doing and how accident occurred or occupational disease contracted: WORKING IN LOUD ENVIRONMENT RESULTING IN TINNITUS.
12. Did accident or occupational disease cause death? NO Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: BODY AS A WHOLE
14. Nature and extent of any permanent disability: 7.5 %
15. Compensation paid to-date for temporary disability: NONE
16. Value necessary medical aid paid to date by employer/insurer? NONE

Employee: Kathy Hall Injury No. 10-113656

1. Value necessary medical aid not furnished by employer/insurer? NONE
2. Employee's average weekly wages: N/A
3. Weekly compensation rate: $\$ 418.58 / \ 490
4. Method wages computation: BY AGREEMENT

1. Amount of compensation payable:

Unpaid medical expenses: N/A

0 weeks of temporary total disability (or temporary partial disability)

0 weeks of permanent partial disability from Employer

0 weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning N/A, for Claimant's lifetime

1. Second Injury Fund liability: Yes X No Open

0 weeks of permanent partial disability from Second Injury Fund

Uninsured medical/death benefits: N/A

Permanent total disability benefits from Second Injury Fund:

weekly differential $\ 71.42 payable by SIF for 30 weeks, beginning 12/13/10

and $\ 490 thereafter, for Claimant's lifetime

TOTAL: SEE AWARD

1. Future requirements awarded: N/A

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant 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 claimant:

JOSEPH HOSMER

Employee: Kathy Hall

Injury No. 10-113656

Dependents: N/A

Employer: Solo Cup Company

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Insurer: Zurich American Insurance

Hearing Date: 11/18/14

Checked by: MEH

The parties appeared before the undersigned administrative law judge on November 18, 2014, for a final hearing. The claimant appeared in person represented by Joseph Hosmer. The employer and insurer did not appear as they have previously settled their claim with the clamant. The Second Injury Fund appeared represented by Skyler Burks. Memorandums of law were filed by December 16, 2014.

The parties stipulated to the following facts: On or about December 12, 2010, Solo Cup Company was an employer operating subject to the Missouri Workers' Compensation Law. The employer's liability was fully insured by Zurich American Insurance. On the alleged injury date of December 12, 2010, Kathy Hall was an employee of the employer. The claimant was working subject to the Missouri Workers' Compensation Law. On or about December 12, 2010, the claimant sustained an occupational disease which arose out of and in the course and scope of employment. The occupational disease occurred in Greene County, Missouri. The claimant notified the employer of her injury as required by Section 287.420 RSMo. The claimant's claim for compensation was filed within the time prescribed by Section 287.430 RSMo. At the time of the occupational disease, the claimant's average weekly wage was sufficient to allow a compensation rate of $\ 490 for temporary total and permanent total disability compensation, and a

compensation rate of $\ 418.58 for permanent partial disability compensation. No temporary disability benefits have been paid to the claimant. The employer and insurer have paid no medical benefits. The attorney fee being sought is 25 %.

1. The nature and extent of permanent disabilities.
2. The liability of the Second Injury Fund for permanent total disability or enhanced permanent partial disability.

The claimant is 62 years old. She graduated from high school and worked in factories and offices for four years before going to work for the employer. She worked for the employer for approximately 36 years, from 1975 to March 2011, when the business closed. The employer produced paper products. During this time she worked in the tub department, producing food tubs and paint buckets; the GEM department, where she loaded machines to make paper cups and pulled out jams; and for about 30 years, in the print shop. In the print shop she worked for 5 years on the presses putting cylinders with plates in to print, and later in the plate room where they make the plates and mounted them. In the plate room she used two different types of machines.

Claimant testified live, and I found her to be a very credible witness. Claimant developed the occupational disease of tinnitus from noise exposure at the employer. In the GEM department the machines banged and made noise. She wore ear protection. She testified that the protection was not as strictly enforced in 1975 as it was later. She said the tub department was not as noisy nor was the print shop, but there was still considerable noise.

Claimant first started to notice hearing loss and ringing in her ears in 2008-2009. She said that she could not understand what was being said on the television and could not stand loud

noises. She began having trouble talking on the phone because of the constant ringing and buzzing noise in her ears. This noise is continuous 24 hours a day. When it is quiet she notices the noise more.

Currently, claimant has ringing in both ears, the right worse than the left. She described it as a buzzing or ringing. She also has severe high frequency hearing loss in the right ear. This causes her difficulty using a telephone, hearing a television. Background noise makes it difficult for her to hear speech, and she has to look at a person's lips, and it is hard for her to understand if more than one person is talking at the same time. Claimant settled her claim with the employer fo