Joseph Abt v. Mississippi Lime Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 13-074707

Employee: Joseph Abt

Employer: Mississippi Lime Company

Insurer: Ace American Insurance Company

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 December 29, 2016. The award and decision of Chief Administrative Law Judge Lawrence C. Kasten, issued December 29, 2016, 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 $\qquad 6^{\text {th }}$ day of April 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Joseph Abt

Injury No. 13-074707

Dependents: N/A

Employer: Mississippi Lime Company

Additional Party: N/A

Insurer: Ace American Insurance Co.

Appearances: Robert Meyers, attorney for the employee.

Matthew Mocherman, attorney for the employer-insurer.

Hearing Date: September 28, 2016 Checked by: LCK/sm

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 January 7, 2013.
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 the 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.

1. Was the employer insured by above insurer? Yes.
2. Describe work the employee was doing and how accident happened or occupational disease contracted: The employee was exposed to industrial noise that caused loss of hearing in the left ear.
3. Did accident or occupational disease cause death? No.
4. Parts of body injured by accident or occupational disease: Left ear.
5. Nature and extent of any permanent disability: 3% permanent partial disability of the left ear.
6. Compensation paid to date for temporary total disability: 0
7. Value necessary medical aid paid to date by employer-insurer: 0
8. Value necessary medical aid not furnished by employer-insurer: N/A
9. Employee's average weekly wage: 1,554.14
10. Weekly compensation rate: 827.75 for temporary total disability and permanent total disability. $433.58 for permanent partial disability.
11. Method wages computation: By agreement.
12. Amount of compensation payable: $637.36 for permanent partial disability.
13. Second Injury Fund liability: N/A.
14. 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 September 28, 2016, the employee, Joseph Abt, appeared in person and with his attorney, Robert Meyers for a hearing for a final award. The employer-insurer was represented by their attorney, Matthew Mocherman. Present for the employer was Safety Director Rick Donovan. 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. 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 TPA ESIS, Inc.
2. On or about January 7, 2013, Joseph Abt was an employee of Mississippi Lime Company and was working under the Workers' Compensation Act.
3. The employer had notice of the employee's alleged occupational disease.
4. The employee's claim was filed within the time allowed by law.
5. The employee's average weekly wage was $\ 1,554.14. His rate for temporary total disability is $\ 827.75 and for permanent partial disability is $\ 433.58.
6. The employer-insurer has not paid any medical aid.
7. The employer-insurer has not paid any temporary disability.
8. Venue is appropriate in Ste. Genevieve County and the venue is proper for the hearing in St. Francois County as it is an adjoining county to Ste. Genevieve County.

1. Occupational disease.
2. Medical causation.
3. Nature and extent of permanent partial disability.

Exhibit 1: Mississippi Lime audiology records

Exhibit 2: Medical records of Dr. Susan O’Donnell

Exhibit 3: Medical records of Synergy ENT Specialists

Exhibit 4: Deposition of Dr. David Mason, PhD, including his C.V. and reports

The employer-insurer objected to certain portions of Employee Exhibit 4 including any testimony regarding the causation of the condition of tinnitus and hearing loss; and any testimony regarding the extent of disability as a result of the alleged tinnitus. There was no objection to the CV. With regard to his initial report, the employer-insurer objected to lack of foundation that David Mason is not qualified to testify as an expert based on Section 490.065 RSMo. The

employer-insurer objected to the addendum report based on the seven-day rule. The employerinsurer objected to his opinions based on lack of foundation as not being qualified to testify as an expert pursuant to Section 490.065 RSMo; that his opinions were not offered within a reasonable degree of medical certainty as required by Section 287.190.6 RSMo and that his opinions on the three issues are outside the scope of his expertise.

The objections to Exhibit 4 were taken under advisement. The parties made arguments as to the admissibility in their proposed Awards. Based on a review of Employee Exhibit 4; the decision of the Court of Appeals in Landers vs. Chrysler Corporation 963 S.W. 2d. 691 (Mo. App. 2009); and the decision of the Labor and Industrial Relations Commission in Injury Number 02-151330 Sidney Hudson v. RHI America, Pacific Employer Ins. Co., c/o Crawford \& Company, 2007 WL 455584; in Injury Number 10-113135 Gary Lawson vs. Mississippi Lime Company: and in Injury Number 12-103979 Earl Resinger vs. Mississippi Lime Company, I find that Dr. Mason is qualified to testify as an expert as to causation and the nature and extent of the alleged injuries. The employer-insurer's objections are overruled, and Employee Exhibit 4 in its entirety is admitted into evidence.

Exhibit A: Deposition of Dr. Mikulec including his C.V. and report.

Exhibit B: Deposition of Dr. Mikulec including his C.V. and report.

Judicial Notice of the contents of the Division's file for the employee was taken.

Joseph Abt

The employee's proposed Award was received on October 20, 2016. The employerinsurer's proposed Award was received on October 27, 2016.

The employee testified that he is 64 years old. He goes deer hunting about once a year and shoots his 30.06 once or twice. He used to go turkey hunting and usually fired his 12 gauge shotgun once. He has not gone turkey hunting the last four years. He participates in shooting matches about 20 times a year. He usually shoots 3-4 boards with a 12 gauge shotgun. He has worn noise cancelling headphones since the mid 1970's but has always worn some type of hearing protection since he was in high school. He started working at Mississippi Lime on January 22, 1973. He was on the carpentry crew for about 10 years and worked in different areas of the plant. He then worked as a crane operator and a maintenance man. He worked in both of the employer's plants every day. When he first started working there was no hearing protection required but he wore some form of hearing protection at all times. He religiously wore hearing

**Injury No. 13-074707**

Protection since he started working at Mississippi Lime even when it was not required. The employees were first required to wear hearing protections in certain areas of the plant in the 1990s.

The employee testified that everywhere at Mississippi Lime was extremely loud and noisy. In some places it's louder than others but the biggest majority of the plant is noisy. He worked as a maintenance person 25% of the time. As a maintenance worker he wore hearing protection 75-90% of the time. When he first started operating the crane they were using hand signals, and he would not have to take off his earplugs. Around the late 1980's or early 1990's, they changed from hand signals to using radios. After that 75% of the time he did not use hearing protection because he had to hear the radio for the safety of others. Due to the extreme heat from the kiln he always kept the left-sided crane door open and had fans blowing air in due to the heat. There were loud noises from the kiln and crane; and loud noises from machines and motors, rock feed-ins, lime loading, and dryer screws.

The employee testified that prior to working at Mississippi Lime he had no problems with ringing, buzzing or tones in his head. He started having problems with humming about 12 years before he stopped working and started having ringing at least 7-8 years before he left. After that started when the crew leader gave him the job assignments in the morning, he could not understand him if someone was talking or making noise. He had to ask the other employees what was said. He could not hear his supervisor at the meetings to start the day due to loss of hearing and the ringing combined. Sometimes on cranes he could not hear what was said on the radio and had to ask them to repeat it. The ringing and buzzing kept getting louder. During that time he never sought medical treatment for hearing loss or ringing. He never spoke to his family physician, Dr. O'Donnell, about problems with ringing or hearing loss prior to leaving Mississippi Lime.

The employee had a hearing test in September of 2000 which showed mild to moderate hearing loss of 30-60 decibels. There was evidence of a mild to moderate hearing loss in one or more frequencies from 500 to 8000 Hertz which may result in difficulty understanding some speech even in ideal quiet listening situations. In November of 2001 the hearing test results showed moderate hearing loss of 45-60 decibels. It was noted that there was evidence of a moderate hearing loss in one or more frequencies from 500 to 8000 Hertz which may result in difficulty understanding some speech even in ideal quiet listening situations. The employee had hearing tests in October or November of 2002, 2003, 2004, 2005, 2006, and 2007 which showed mild to moderate hearing loss of 30-60 decibels. There was evidence of a mild to moderate hearing loss in one or more frequencies from 500 to 8000 Hertz. The type of loss may result in difficulty understanding some speech even in ideal quiet listening situations.

In November of 2008 and 2009, the employee's hearing tests showed mild speech range hearing loss and moderate high pitch hearing loss in the 3000 to 6000 range in the right ear. The left ear showed moderate speech range hearing