David Hogenmiller v. Mississippi Lime Company

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

**Injury No.:** 13-104480

**Employee:** David Hogenmiller

**Employer:** Mississippi Lime Company

**Insurer:** Ace American Insurance Co. c/o TPA ESIS, Inc.

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

At hearing, the employer/insurer objected to admission of employee's Exhibit 2, PhD audiologist David Mason's deposition, curriculum vitae, and report. Employer/insurer objected based on a lack of foundation and Dr. Mason's failure to qualify as an expert pursuant to § 490.065. Employer/insurer further alleged that Dr. Mason's opinions were "not offered within a reasonable degree of medical certainty as required by Section 287.190.6 of the Revised Statutes of Missouri."¹

The administrative law judge took employer/insurer's objection under advisement. In his January 18, 2017, Final Award, the administrative law judge overruled employer/insurer's objection to employee's Exhibit 2, citing *Landers v. Chrysler Corp., Nixon v. Lichtenstein* and several Commission decisions including *Earl Resinger v. Mississippi Lime Company*.² The court of appeals affirmed the Commission's decision in *Resinger* without opinion pursuant to Rule 84.16(B) on August 23, 2016.³

Employer/insurer argues that the case law cited by the administrative law judge in support of his decision to overrule employer/insurer's objections include criteria that render Dr. Mason's opinions on tinnitus and on the cause of hearing loss inadmissible. We disagree.

In *Landers v. Chrysler Corp.*, the court determined that a non-physician psychologist's testimony was sufficient to satisfy an employee's burden of proving medical causation of a

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1 Transcript, 7.

2 *Landers v. Chrysler Corp.*, 963 S.W.2d 275 (Mo. App. 1997); *Nixon v. Lichtenstein*, 959 S.W.2d 854 (Mo. App. 1997); *Earl Resinger v. Mississippi Lime Company*, Injury No. 12-103979 (LIRC, December 23, 2015), See Award, p. 4.

3 *Resinger v. Miss. Lime Co.*, 504 S.W.3d 97 (Mo. App. 2016).

Injury No.: 13-104480

Employee: David Hogenmiller

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brain injury. The court reasoned, "[C]onceivably a psychologist or other non-physician might attain a degree of knowledge, skill, experience, training, or education in medicine that would provide the foundation to become a medical expert." The *Landers* decision stands for the proposition that where an expert witness possesses scientific, technical, or other specialized knowledge that will assist the trier of fact in resolving an issue of medical causation, the fact that the witness does not possess a license to practice medicine is not dispositive.

Employer/insurer notes that *Nixon v. Lichtenstein*, a case involving trust and corporation law, states that "In order to qualify as an expert, the witness must have knowledge, skill, experience, training, or education supporting his or her opinion which is intended to aid the trier of fact." The court in *Nixon* further observed:

> "Whether a witness' qualifications to state an opinion are sufficiently established rests largely in the discretion of the trial court and its ruling will not be disturbed on appeal unless there is a clear showing of abuse." *State ex rel Jefferson County v. Watson*, 867 S.W.2d 223, 228 (Mo. App. E.D. 1993). The question the trial court must ask is whether the witness possesses certain knowledge, wisdom, or skill regarding the relevant subject matter which was acquired by study, investigation, observation, practice, or experience. *Id.* "If the witness has some qualifications, the testimony should be permitted."

The administrative law judge's decision recites Dr. Mason's credentials as follows:

> [Dr. Mason's] C.V. indicated that he had a BA in Speech Pathology, an MA in Audiology and a PhD in Hearing Science. He has been in private practice as an audiologist since 2003. He was a dispensing audiologist at the St. Louis Hearing and Speech Center starting in 2012. He taught graduate level classes at the Central Institute for the Deaf in 2003, and undergraduate level audiology and hearing science classes at St. Louis University in 2008-2009. From 1983 to 2003, he was an audiologist and Assistant Professor at the Central Institute for the Deaf in St. Louis; and was Interim Head of Audiology from 1995-1998. He was an audiology consultant to Union Pacific Railroad from 1988-1990.

Medical causation may be established by "proper opinion testimony." In our view, pursuant to the criteria set out in *Landers* and *Nixon*, Dr. Mason's credentials are more than sufficient to give weight to his opinions regarding tinnitus and medical causation of the employee's hearing loss. We affirm the administrative law judge's admission of employee's Exhibit 2 into evidence.

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4 *Landers v. Chrysler Corp.*, supra at 282.

5 *Nixon v. Lichtenstein*, 959 S.W.2d 854, 860 (Mo. App. 1999).

6 *Id.*

7 *Award*, pp. 7-8.

8 *Beatrice v. Curators of U. of Mo.*, 438 S.W.3d 426, 435 (Mo. App. 2014).

Injury No.: 13-104480

Employee: David Hogenmiller

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Employer/insurer also argues that the employee failed to meet his burden of proof on the issue of permanent partial disability because Dr. Mason's testimony is insufficient to support an award of permanent partial disability benefits. Employer/insurer notes that § 287.190.6(2) RSMo states, "Permanent partial disability or permanent total disability shall be demonstrated and certified by a physician."

We need not address the issue of whether Dr. Mason's opinion and the employee's testimony, standing alone, support a finding of permanent partial disability, because the record before us includes a finding of disability demonstrated and certified by employer's expert, otolaryngologist Dr. Anthony Mikulec. As noted in the administrative law judge's award, Dr. Mikulec evaluated the employee's disability relating to tinnitus as 0.5% of each ear, a total of 1% permanent partial disability. The administrative law judge relied on the opinions of both Dr. Mason and Dr. Mikulec in determining that as a direct result of work-related tinnitus the employee sustained a 5% permanent partial disability of the body as a whole.

The mere fact that the employee's hearing loss is not compensable pursuant to objective standards set out in the Workers' Compensation Law does not prove that it is not work-related. The testimony of both Dr. Mason and Dr. Mikulec identify exposure to noise as a risk source for tinnitus.

The Commission can consider all evidence in arriving at a permanent partial disability rating. It is not bound by estimates of medical experts because the degree of disability is not solely a medical question. The Commission can and must be able to accept expert testimony in each expert's area of expertise and then assess and weigh collective evidence when making this ultimate determination.

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 finding, 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 administrative law judge Lawrence C. Kasten, issued January 18, 2017, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

9 Transcript, 125, 147.

10 See Lytle v. T. Mac, Inc., 931 S.W.2d 496 (Mo. App. 1996) and Patterson v Central Freight Lines and Treasurer, E.D. No. 101451, January 20, 2015.

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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 **28th** day of June 2018.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

John J. Larsen, Jr., Chairman

**DISSENTING OPINION FILED**

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Injury No.: 13-104480

Employee: David Hogenmiller

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. No party disputes the fact that employee's hearing loss is not compensable pursuant to standards set out in § 287.197 of the Missouri Worker's Compensation Law. The permanent partial disability that employee claims to suffer is related solely to his purely subjective complaint that he experiences ringing or buzzing in his ears.

The only expert testimony that supports a conclusion that the employee's condition is work-related is that of retired audiologist David Mason, who currently confines his practice to "some legal work." Dr. Mason did not review any of the employee's medical records and was unsure when the employee began wearing hearing protection at work. Dr. Mason based his opinion that the employee suffered from tinnitus solely on the employee's subjective responses to a questionnaire. He acknowledged the employee's responses were subject to manipulation. The employee admitted that from 1986 to 2013, for twenty-seven years, he always wore hearing protection in any areas where required by the employer.

Dr. Mason's testimony, curriculum vitae, and report do not constitute competent and substantial evidence because Dr. Mason is not a physician and, as a matter of law, is therefore not qualified to opine as to medical causation or permanent partial disability. In *Earl Resinger v. Mississippi Lime Company*, 504 S.W.3d 97 (Mo. App. 2016), the court upheld the Commission's reliance on Dr. Mason's opinion in a case involving similar facts and the same employer as in this case. However, as noted in employer/insurer's brief, the issue of foundation and admissibility of Dr. Mason's opinions was not presented or addressed in that case.

The majority errs in summarily dismissing the opinion of Dr. Mikulec, board-certified otolaryngologist and tenured professor at St. Louis University, on the issue of medical causation and permanent partial disability. Dr. Mikulec specializes in otology and neuro-otology, the treatment of the ear and its disorders. He obtained his medical degree from Stanford University and completed a fellowship in otolaryngology at Harvard. Dr. Mikulec's clinical practice involves seeing patients two days a week and performing surgery on ear-related issues. Dr. Mikulec's opinion that the employee's tinnitus was caused by aging, not noise exposure and that he had only 1% permanent partial disability relating to alleged ringing or buzzing in his ears must be given greater weight than Dr. Mason's opinion given Dr. Mikulec's educational background, training, qualification, and level of expertise.

Because I find the employee failed to meet his burden of proof on the issue of medical causation, I would reverse the award of the administrative law judge and deny this claim. As the employer/insurer correctly notes, the Commission's continued reliance on

11 Transcript, 86.

12 Section 287.190.6(2).

Improvee: David Hogenmiller

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Dr. Mason in cases relating to tinnitus extends an invitation to every employee that has any degree of hearing loss, regardless of how small and regardless of whether it is occupational versus non-occupational, to file a claim.

Because the majority has determined otherwise, I respectfully dissent.

Reid K. Forrester, Member

Employee: David Hogenmiller

Injury No. 13-104480

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Mississippi Lime Co.

Additional Party: N/A

Insurer: Ace American Insurance Co. c/o TPA ESIS, Inc.

Appearances: Robert Meyers, attorney for the employee.

Matthew Mocherman, attorney for the employer-insurer.

Hearing Date: November 16, 2016

Checked by: LCK/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? February 28, 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.

Employee: David Hogenmiller

Injury No. 13-104480

1. Was the employer insured by above insurer? Yes.

1. Describe work the employee was doing and how accident happened or occupational disease contracted: The employee was exposed to prolonged harmful noises during his employment with Mississippi Lime Company.

1. Did accident or occupational disease cause death? No.

1. Parts of body injured by accident or occupational disease: Left ear, right ear and body as a whole for tinnitus.

1. Nature and extent of any permanent disability: 5% permanent partial disability of the body as a whole for tinnitus.

1. Compensation paid to date for temporary total disability: None.

1. Value necessary medical aid paid to date by the employer-insurer: None.

1. Value necessary medical aid not furnished by the employer-insurer: N/A.

1. Employee's average weekly wage: 875.46

1. Weekly compensation rate: 583.61 for temporary total disability and $433.58 for permanent partial disability.

1. Method wages computation: By agreement.

1. Amount of compensation payable: $8,671.60 for permanent partial disability.

1. Second Injury Fund liability: N/A.

1. 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.

Page 2

On November 16, 2016, the employee, David Hogenmiller, 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. Also present for the employer was Safety and Health Manager 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 Co. was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Ace American Insurance Co.
2. On or about February 28, 2013, David Hogenmiller was an employee of Mississippi Lime Co. 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 $\ 875.46. His rate of compensation for temporary total disability is $\ 583.61 and for permanent partial disability is $\ 433.58.
6. The employer-insurer paid no medical aid.
7. The employer-insurer did not pay any temporary disability benefits.

1. Occupational Disease
2. Medical Causation
3. Permanent Partial Disability

The following exhibits were offered and admitted into evidence:

Exhibit 1: Plant audiology records of the employee

Exhibit 2: Deposition, C.V. and report of Dr. Mason, PhD

At Dr. Mason's deposition, the employer-insurer objected to the admission of his report based on lack of foundation and that he was not qualified to testify as an expert under Section 490.065 RSMo; and objected to any testimony by Dr. Mason.

At the hearing, the employer-insurer objected to the admission of Employee Exhibit 2. There was an objection to any opinions of Dr. Mason on the issue of causation of tinnitus and the extent of disability related to the tinnitus including the attachments to the deposition on the basis

Employee: David Hogenmiller

Injury No. 13-104480

of foundation. The employer-insurer argued that Dr. Mason was not qualified to testify as an expert based on Section 490.065 RSMo; and his opinions were not offered within a reasonable degree of medical certainty as required by Section 287.190.6 RSMo; and that his opinions are outside the scope of his expertise.

The objections to Exhibit 2 were taken under advisement. The parties made arguments as to the admissibility in their proposed Awards. Based on a review of Employee Exhibit 2 including Dr. Mason's C.V.; the decision of the Court of Appeals in Landers vs. Chrysler Corporation, 963 S.W. 2d. 691 (Mo. App. 2009) and Nixon v. Lichtenstein, 959 S.W.2d (Mo. App. 1997); 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 tinnitus. The employer-insurer's objections are overruled, and Employee Exhibit 2 in its entirety is admitted into evidence.

Employer-Insurer Exhibit:

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

The employee objected to Dr. Mikulec as any legal conclusions as to the tinnitus being compensable. The objection was taken under advisement at the hearing. The objection is hereby overruled.

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

WITNESS:

David Hogenmiller

BRIEFS:

The employee filed his proposed Award on December 12, 2016. The employer-insurer filed their proposed Award on December 16, 2016.

STATEMENT OF THE FINDINGS OF FACT:

The employee testified that he is 66 years old, is married, and has three children. He is right handed. He was in the military and discharged firearms during basic training. He had to requalify two times on the M14 rifle. He used hearing protection in the military only when he requalified. As a child he used to go target shooting with a .22 and did not use hearing protection. He has not done any target shooting in a long time. He goes hunting every year, and usually discharges his shotgun once. He did not use hearing protection while hunting.

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**Injury No. 13-104480**

The employee rode motorcycles growing up but stopped when raising his family. In 1981 he had a motorcycle accident where he lost consciousness, had a concussion and had an injury to the external portion of the right ear. At that time he did not have tinnitus. In 2005, he bought a small 500cc Harley that he rode on a regular basis. He traded it for a V-Rod which made less noise. In 2013 he drove his motorcycle to Montana and had an accident where he was in the hospital for 4 days. At the time of his 2013 motorcycle accident he was wearing a helmet and already had tinnitus.

He was employed at Mississippi Lime from February 14, 1972 until February 28, 2013. While at Mississippi Lime he worked in a variety of positions. He first worked at the vertical plant for 12 years. He was not required to wear hearing protection but it was available. He wore hearing protection at the lime picking table, the polarizer and the rock screen due to those stations being extremely loud. He then worked at the rotary plant for 6 months. Most portions of the rotary plant were so loud that hearing protection was required. The lime bins and rock screen were the worse.

The employee testified that from approximately 1986 until 2002 he was a gas diesel mechanic which was less noisy. He worked throughout the facility and always wore hearing protection where it was required. As a mechanic he worked below ground in the mines and above ground in the vertical and rotary plants. He was only required to wear hearing protection where it was very noisy, which was not often.

A hearing test in September of 2000 showed that the employee had normal hearing for all frequencies.

The employee testified that around 2002 he returned to the rotary plant and worked there for over 10 years until retiring in 2013. The rock screen and lime bins were the noisy parts of the rotary plant. He was required to, and wore hearing protection. The lime bin loading facility was very loud. The platform he stood on vibrated up and down and he could feel vibration to the concrete while the trucks were being loaded. The rock screen was noisy due to moving limestone by a conveyor. He worked in the lime bins for a year and worked in the rock screen area from 2003 until he retired. Prior to 2003 he did not have any tinnitus symptoms. In 2003 he started having symptoms after working for about a year in the rotary plant the second time.

In October of 2002, the hearing test results showed mild hearing loss of 30-40 decibels in one or more of the high frequencies of 3000 to 8000 hertz. In November of 2003, the employee's test results were mild to moderate hearing loss of 30-60 decibels in one or more of the high frequencies of 3000-8000 which may result in difficulty understanding some speech, even in ideal quiet listening situations. There would be more difficulty in understanding women and children and sounds involving the high frequencies. A complete audiologic evaluation was recommended. The employee had hearing tests in October of 2004 and 2005 which noted the same results.

In November of 2006, the employee had moderate hearing loss of 45 to 60 decibels in the higher frequencies of 3000-8000. It was noted that this type of loss may result in difficulty

Page 5

**Injury No. 13-104480**

Understanding speech where there is noise in the background. There would be more difficulty in understanding women and children due to their higher voices. A complete audiological evaluation was recommended. In November of 2007, the audiogram showed mild sloping to severe hearing loss of 30 to 90 decibels in one of more frequencies of .500 to 8000 hertz. This type of loss may result in difficulty understanding some speech even in ideal quiet hearing situations. A complete audiologic evaluation was recommended. In November of 2008 and November of 2010 the employee's hearing tests showed that there was normal speech range and high pitch hearing in both ears. The hearing test in October of 2011 showed normal speech range hearing in both ears, and normal high pitch hearing in the left ear, and a mild high pitch hearing loss in the right ear. The hearing test in October of 2012 showed mild speech range loss in the right ear and moderate speech range loss in the left ear. There was moderate high pitch hearing loss in both ears.

The employee testified that when he first started having symptoms it was periodically, but by the time he was close to retirement it was very steady. The sounds started out like cricket noise and by the time he retired it was a steady ringing and buzzing in his ears. In the year leading up to his retirement, the ringing affected his job. He had to have instructions repeated to know what he was supposed to be doing. He learned to watch people's faces. He had trouble understanding anything if there was a lot of noise; and in the plant he had a hard time hearing people due to the loud noises.

The employee testified that as a rock screener he was in the control room and used a computer to control the belts and shakers. In the control room, he had to turn the radio on to drown out the buzzing in his ears so he could concentrate to watch the computer screen and perform his duties. He did not have to wear hearing protection in the control room but it was required and he always wore hearing protection when he was out of the control room. He worked outside of the control room most of the time. From 1986 until the time he retired in 2013 he always wore hearing protection when required to do so.

The employee testified that a year or two before retiring, he had trouble hearing what his wife said. She had to repeat herself which irritated her. Anytime there was a lot of noise he had to have things repeated. He never mentioned the ringing in his ears to Dr. O'Donnell, his family doctor.

Dr. Mikulec evaluated the employee on May 29, 2015. His deposition was taken on June 30, 2016. Dr. Mikulec is an associate professor at St. Louis University specializing in otology and neurotology which is the treatment of the ear and its disorders. He has a medical degree, an internship in general surgery and a residency in otolaryngology. Dr. Mikulec completed a fellowship in otolaryngology that focused on the treatment of diseases of the ear and related structures. He is board certified as an ENT and in Neurotology and Otology. His practice consists of two days a week of clinical work seeing patients and one to two days per week doing surgery on ear-related issues. He spends approximately one day a week on research and bureaucracy-related tasks.

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**Injury No. 13-104480**

The employee had a work history at Mississippi Lime which was a loud environment but ear plugs were used the whole time. He had a history of hunting with the last time being in 1998. He shoots right handed and had two past motorcycle accidents, with one involving head trauma. Dr. Mikulec stated that the employee had noise exposure from motorcycles with the possibility of having some hearing loss as a result of head trauma. He reported a history of high frequency bilateral tinnitus since around 2003. He had not had any treatment but has used fans at night since 2003. The tinnitus did not interfere with his daily activities or sleep.

It was Dr. Mikulec's opinion that the employee sustained a zero percent hearing loss under the Missouri Workers' Compensation guidelines after applying the age correction factor. It was his opinion that tinnitus occurs commonly in adult populations exposed to and not exposed to industrial noise or head trauma. Hearing loss is one of the most common causes of tinnitus and was the cause of the employee's tinnitus. It was Dr. Mikulec's opinion that since the employee has no compensable hearing loss according to Missouri criteria, is minimally bothered by the tinnitus, and has never sought treatment for the tinnitus, the employee has a 0% disability related to his tinnitus. Dr. Mikulec stated that there was no evidence that the employee's tinnitus was due to anything other than normal aging as determined by the hearing loss calculation. It was his opinion that the employee had a 0.5% disability in each ear for a total of 1% due to the minor bother of the tinnitus, irrespective of any connection with occupation.

Dr. Mikulec testified that tinnitus is a high-frequency ringing/buzzing of the ear that cannot be objectively diagnosed or measured. It is not always related to hearing loss. Every day he sees patients that have tinnitus. He believed that the employee had tinnitus but thought his level of disability was rather small.

It was Dr. Mikulec's opinion that the employee had no compensable hearing loss under Missouri Workers' Compensation. Hearing loss is the most common cause of tinnitus and there are multiple possible causes for hearing loss. Tinnitus is not always related to hearing loss. Irrespective of the cause of the hearing loss tinnitus can result in some people with hearing loss but not for others. The employee's other exposure to loud noises was occasional discharge of a gun during deer season and serving in the military from 1969 to 1971. The employee had three motorcycles which can be deafening but Dr. Mikulec does not know their exhaust output.

Dr. Mikulec stated that most people with tinnitus have some degree of hearing loss. The vast majority of people with hearing loss have age-related hearing loss and not noise exposure hearing loss. High industrial noise is one of a number of things that can cause both hearing loss and tinnitus. Dr. Mikulec's opinion that the employment at Mississippi Lime was not the cause of the tinnitus is based on the fact that the most likely cause is his underlying hearing loss. Because his hearing loss is age-related, his tinnitus is also age-related.

The employee was evaluated by Dr. Mason, PhD in February and March of 2015. He issued a report and his deposition was taken on July 12, 2016. His C.V. indicated that he had a BA in Speech Pathology; an MA in Audiology and a PhD in Hearing Science. He has been in private practice as an audiologist since 2003. He was a dispensing audiologist at the St. Louis Hearing and Speech Center starting in 2012. He taught graduate level classes at the Central

**Injury No. 13-104480**

Institute for the Deaf in 2003, and undergraduate level audiology and hearing science classes at St. Louis University in 2008-2009. From 1983 to 2003 he was an audiologist and Assistant Professor at the Central Institute for the Deaf in St. Louis; and was Interim Head of Audiology from 1995-1998. He was an audiology consultant to Union Pacific Railroad from 1988-1990.

At the time of his deposition, Dr. Mason was retired. His former practice was performing hearing tests and providing hearing aids to his patients. He is not a medical doctor, did not prescribe medication and did not perform surgery. His practice was primarily focused on examining and determining hearing loss for individuals and recommending hearing assistance and hearing aids. He has not published any papers or made any presentations regarding tinnitus or the cause of tinnitus.

The employee reported a history of hearing loss for 15-20 years and tinnitus for approximately 16 years. The employee worked for Mississippi Lime Company starting in 1972 and since 1984 hearing protection was required. The employee had a history of riding motorcycles, but he reported they were quiet due to their exhaust systems. Dr. Mason performed three separate hearing tests which showed sloping mild to severe hearing loss in both ears. Based on the age adjustment, the employee's hearing impairment was zero percent. The tinnitus was evaluated by questionnaire and the employee rated the severity of the tinnitus in a moderate range. Dr. Mason measured the loudness or pitch of the tinnitus using a matching procedure which matched the loudness to a 15db(SL) and a pitch to a 1000 Hz tone. Dr. Mason stated that there was no evidence of exaggeration of the degree of hearing loss and was characteristic of an industrial noise induced hearing loss. It was his opinion that the primary cause of the hearing loss was constant loud noise at work. The employee had a hearing loss that dropped off on one ear at 3000 hertz and the other ear at 4000 hertz. The workplace was very noisy, he was required to wear hearing protection and the company did annual hearing tests starting in 1984.

Dr. Mason testified that industrial noise is one of a number of things that can cause hearing loss and tinnitus. It was Dr. Mason's opinion that the noise exposure at Mississippi Lime was the primary cause of his hearing loss and tinnitus. It was his opinion that there is nothing in the employee's history that would cause hearing loss or tinnitus other than the noise exposure at work. He rated the tinnitus at 10%. The employee had a zero percent hearing loss under the applicable Missouri Workers' Compensation Laws. Whatever hearing loss he has, whether compensable or not, is consistent with noise exposure at work.

There are many causes of hearing loss including genetics, aging, industrial noise, sudden noises, adverse medication reaction, trauma, vascular disease and recurrent sinus infections. Dr. Mason testified that whatever caused his hearing loss caused his tinnitus. If his hearing loss was from something other than industrial noise, it would be very likely that the tinnitus would be caused by something else. Dr. Mason stated that aging would lend itself to hearing loss and tinnitus. He did not review any medical records. He reviewed hearing tests conducted by Mississippi Lime. The medical history is based solely on what the employee told him. He is unsure when the employee began wearing hearing protection at Mississippi Lime. The employee could have manipulated the questionnaire and tone matching test to reflect tinnitus. Regardless of the results of the tone matching test (i.e. whether the tone matches at five, ten, fifteen or

**Injury No. 13-104480**

twenty decibels) he always assigns a rating of 10%. It was Dr. Mason's opinion that the noise at Mississippi Lime is the prevailing factor in the tinnitus. He spent years in a noisy environment that caused hearing loss and the tinnitus would be related to the damage done to the ear.

The employee testified that at home he had trouble communicating with people. He was never diagnosed with or told any medical provider that he had a hearing loss. In September of 2010 he went to his family doctor in Ste. Genevieve. In the past medical history, checked yes was hearing problems. The employee said that he never discussed the hearing loss with his doctor. The employee stated that the trouble communicating with people was due to ringing in his ears and not from hearing loss; and the ringing in the ears interferes with his daily activities. He does not know if he told Dr. Mikulec that his tinnitus did not interfere with his daily activities. If it is quiet and he is trying to relax he will turn on classical music because the string instruments helps in drowning out the noises. In order to minimize the noises in his head when sleeping he uses a window air conditioner all year-round, even in the winter. He turns on a fan, radio or television to help relax. The employee agreed that he has some degree of hearing loss but it is not compensable under Missouri law.

It is disputed that on or about February 28, 2013 the employee sustained an occupational disease arising out of and in the course of his employment; and that the employee's injury was medically causally related to the alleged occupational disease.

Under Section 287.067.2 RSMo, an injury by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

Under Section 287.067.4 RSMo, loss of hearing due to industrial noise is recognized as an occupational disease and is hereby defined to be a loss of hearing in one or both ears due to prolonged exposure to harmful noise in employment. Harmful noise means sound capable of producing occupational deafness.

The compensability of job-related hearing loss is governed by Section 287.197 RSMo and 8 CSR 50-5.060. Loss of hearing due to industrial noise for compensation purposes shall be confined to the frequencies of 500, 1000, and 2000 cycles per second. Loss of hearing ability for frequency tones above 2000 cycles per second are not considered as constituting disability for hearing.

Tinnitus is a compensable work-related injury separate and apart from accompanying hearing loss. See *Thatcher vs. Trans World Airlines*, 69 S.W. 3d 533 (Mo.App.2002); *Poehlin vs. Trans World Airlines, Inc.* 891 S.W. 2d 505 (Mo.App.1994); *Lawrence vs. Anheuser-Busch Companies, Inc.* 310 S.W. 3d 248 (Mo. App. 2010).

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MNKOI 0000714498

**Injury No. 13-104480**

The employee's testimony regarding his noise exposure at work, the problems with his loss of hearing and the problems with tinnitus is credible and persuasive.

With regard to hearing loss, Dr. Mikulec and Dr. Mason agree that the employee does not have compensable hearing loss. It was Dr. Mikulec's opinion that the employee had no compensable hearing loss under the Missouri Workers' Compensation guidelines. It was Dr. Mason's opinion that based on the required age adjustment; the employee had a zero percent hearing loss under the applicable Missouri Workers' Compensation Laws.

It was Dr. Mikulec's opinion that hearing loss is one of the most common causes of tinnitus and was the cause of the employee's tinnitus. It was Dr. Mikulec's opinion that since the employee has no compensable hearing loss, his minimal bother from the tinnitus and has never sought treatment for the tinnitus, he has a 0% disability related to tinnitus. Dr. Mikulec believed that the employee had tinnitus but there was no evidence that the tinnitus was due to anything other than normal aging as determined by the hearing loss calculation. It was Dr. Mikulec's opinion that the employment at Mississippi Lime was not the cause of the employee's tinnitus. The most likely cause of the tinnitus is the underlying hearing loss and because his hearing loss is age-related, his tinnitus is age-related.

Dr. Mason stated that the employee had sloping mild to severe hearing loss in both ears. His hearing dropped off in one ear at 3000 hertz and in the other ear at 4000 hertz. It was Dr. Mason's opinion that the primary cause of the hearing loss was the constant loud noise at work. Whatever hearing loss he has, whether compensable or not, was consistent with noise exposure at work. It was Dr. Mason's opinion that whatever caused the hearing loss caused his tinnitus; and it was his opinion that the primary cause of the hearing loss was the constant loud noise at work. It was Dr. Mason's opinion that the noise exposure at Mississippi Lime was the primary cause of his hearing loss and tinnitus.

I find that the opinion of Dr. Mason is very persuasive and is more persuasive than the opinion of Dr. Mikulec on tinnitus.

Based on all the evidence, I find that the employee's prolonged occupational exposure to harmful noises during his employment at Mississippi Lime Company was the prevailing factor in causing the resulting medical condition and disability of bilateral hearing loss and tinnitus. I find that the employee sustained a compensable work-related occupational disease and injury that arose out of and in the course of his employment. I find that the employee's bilateral hearing loss and bilateral tinnitus are medically causally related to the employee's occupational disease.

Based on Section 287.197 RSMo and 8 CSR 50-5.060, I find that the employee's loss of hearing is not a compensable disability since his severe hearing loss is in the cycles higher than 2000. I find that the employee's tinnitus condition is a compensable disability.

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Dr. Mikulec stated that irrespective of causation, the employee had tinnitus which was a minor bother to him. It was his opinion that the employee had a 0.5 % disability in each ear for a total of 1 % for the tinnitus.

Dr. Mason stated that the employee's severity of his tinnitus was in a moderate range; and it was his opinion that the employee had a 10 % disability.

Based on a review of the evidence, I find that as a direct result of the work-related tinnitus the employee sustained a 5 % permanent partial disability of the body as a whole at the 400 week level. The employer-insurer is therefore ordered to pay to the employee a total of 20 weeks of compensation at the rate of $\ 433.58 per week for a total award of permanent partial disability of $\ 8,671.60.

Robert Meyers, attorney at law, is allowed a fee of 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.

I certify that on $\frac{1-18-17}{1 \text { delivered a copy of the foregoing award }}$ to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case life.

By $\qquad$


Made by:


Lawrence C. Kasten

Chief Administrative Law Judge

Division of Workers' Compensation