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 employe