Earl Resinger v. Mississippi Lime Company

Employer also argues that Dr. Mason's testimony is insufficient to support an award of permanent partial disability benefits, because § 287.190.6(2) RSMo states that "[p]ermanent partial disability or permanent total disability shall be demonstrated and certified by a physician." We are not persuaded. Employee's permanent partial disability derives solely from the subjective symptoms of his work-related tinnitus. Both Dr. Mason and Dr. Mikulec agreed that there is no objective measure for tinnitus; as a result, we find as a factual matter that it is not possible for a physician to "demonstrate" or "certify" employee's disability referable to tinnitus. Where the uncontested evidence reveals that there is no objective method for quantifying the degree of an employee's disability referable to a work injury, we conclude that the language of $\S 287.190 .6(2) is simply not applicable.

We additionally note that \S 287.190 .6(2)$ does not prescribe any penalty or sanction for a party's failure to provide a physician's demonstration and/or certification of permanent disability; it would thus appear that the provision is directory, rather than mandatory. See State ex rel. State v. Parkinson, 280 S.W.3d 70, 76 (Mo. 2009), noting that "the use of 'shall' in a statute does not inevitably render compliance mandatory, when the legislature has not prescribed a sanction for noncompliance."

This is a close case, and we very much appreciate the thorough and impeccable briefing and argument presented by both parties. Ultimately though, and after careful consideration, we are not persuaded to disturb the administrative law judge's weighing of the conflicting expert opinion evidence, or the choice to credit employee's testimony regarding his tinnitus symptoms. Accordingly, and for the additional reasons stated above, we affirm and adopt as our own the administrative law judge's award allowing compensation.

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

The award and decision of Administrative Law Judge Carl Strange, issued July 21, 2015, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm 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 $23^{\text {rd }}$ day of December 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:

BISSENTING OPINION

Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I disagree with the majority's decision to affirm the administrative law judge's award allowing compensation.

As noted by the Commission majority, the permanent partial disability that employee claims to suffer is related solely to his purely subjective complaint that he experiences constant ringing or buzzing in his ears. Employee claims he has been suffering from this condition for at least twenty years. I am not persuaded.

On cross-examination, employee admitted that the records from his treating physician, Dr. Cadiz, do not contain any mention of ringing in employee's ears-and in fact memorialize employee's repeated and specific denial of any tinnitus-from 2000 through 2013. Regardless of the legal question whether employee's paid expert David Mason can satisfy his burden of proof with respect to the issue of medical causation, because employee's testimony regarding his own subjective complaints is not persuasive, there is no basis for an award of permanent partial disability benefits in this case.

I would reverse the award of the administrative law judge and deny this claim. Because the majority has determined otherwise, I respectfully dissent.

James G. Avery, Jr., Member

Employee: Earl Resinger

Injury No. 12-103979

Dependents: N/A.

Employer: Mississippi Lime Company

Additional Party: N/A.

Insurer: ESIS, Inc.

Hearing Date: May 4, 2015

Checked by: CS/kg

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? June 29, 2012.
5. State location where accident occurred or occupational disease contracted: Ste. Genevieve County, Missouri.
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 the employer insured by above insurer? Yes.
11. Describe work Employee was doing and how accident happened or occupational disease contracted: Employee alleged tinnitus due to occupational noise exposure while at Employer.
12. Did accident or occupational disease cause death? N/A.

On May 4, 2015, the employee, Earl Resinger, appeared in person and by his attorney, Robert Meyers, for a hearing for a final award. The employer-insurer was represented at the hearing by its attorney, Matthew Mocherman. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows.

1. On or about June 29, 2012, Mississippi Lime Company was operating under and subject to the provisions of the Missouri Workers' Compensation Act and its liability was insured by ESIS, Inc.
2. On or about June 29, 2012, the employee was an employee of Mississippi Lime Company and was working under and subject to the provisions of the Missouri Workers' Compensation Act.
3. The employer had notice of the employee's accident.
4. The employee's claim was filed within the time allowed by law.
5. The employee's average weekly wage was $\ 981.37, his rate for temporary total disability and permanent total disability is $\ 654.25, and his rate for permanent partial disability is $\ 425.19.
6. The employer has furnished no medical aid to the employee.
7. The employer has paid no temporary total disability benefits to the employee.

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

The following exhibits were offered and admitted into evidence:

Employee's Exhibits:

1. Employer hearing loss records; and
2. Deposition of David Mason, Ph.D.

Employer-Insurer's Exhibits:

A. Deposition of Dr. Anthony Mikulec; and

B. Treatment Records of Dr. Cadiz.

Earl Resinger ("Employee") has been working for the Mississippi Lime Company ("Employer") since 1969. As a result of his employment, Employee has alleged that he suffered tinnitus due to occupational exposure of loud noise. In support of his position, Employee offered the opinions of an audiologist, David Mason, Ph.D. that the prevailing factor of his tinnitus and noncompensable hearing loss was his employment at the noisy workplace with Employer (Employee's Exhibit 2). Employer has offered the opinion of Dr. Anthony Mikulec that Employee's hearing loss and tinnitus were not related to his work for Employer. Both experts agree that Employee does not have compensable hearing loss based on Missouri Workers' Compensation standards. At the time of the hearing, Employee testified that during his employment with Employer he worked in very loud areas including the shop area. Further, Employee testified that during the late 1980s and early 1990s that Employer began requiring hearing protection around the loud rock screens and crushers, but not in the shop area which was frequently noisy also due to diesels running and banging metal. Although Employee first noticed the tinnitus 25 or 30 years ago, he testified that it became constant after 2000. As a result, Employee noted that the tinnitus causes interference with activities like holding conversations and watching television. Based on the evidence submitted at trial, I find the testimony of Employee to be credible and further find that Employer-Insurer failed to offer sufficient credible evidence to discredit the testimony of Employee. Consequently, I find the opinions of David Mason, Ph.D. to be more credible than the opinions of Dr. Anthony Mikulec in this matter since he fully considers all the limitations and information provided by Employee.

Based on the evidence, I find that Employee has satisfied his burden of proof on the issues of occupational disease and medical causation for tinnitus. I therefore find that Employee has sustained an occupational disease on or about June 29, 2012, arising out of and in the course of his employment and that his employment was the prevailing factor in causing the resulting medical condition and disability.

Based on the evidence and my above findings, I find that Employee, as a direct result of his June 29, 2012 work-related occupational disease, has suffered a 6\% permanent partial disability of his body as a whole at the 400 week level ( 24 weeks). As a result of Employee's June 29, 2012 work-related occupational disease, I order Employer to pay to Employee the sum of $\ 425.19 per week for 24 weeks for a grand total of $\ 10,204.56.

Robert Meyers, attorney at law, is allowed a fee of costs plus 15 % of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein.

Interest on all sums awarded hereunder shall be paid as provided by law.

Made by: