Tony Darby v. Noranda Aluminum, Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 16-028974

**Employee:** Tony W. Darby

**Employer:** Noranda Aluminum, Inc.

**Insurer:** New Hampshire 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. The award and decision of Administrative Law Judge Lawrence C. Kasten, issued September 19, 2019, 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 **2nd** day of April 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

**SEPARATE OPINION FILED**

Reid K. Forrester, Member

**S. Viki Curls**

Shalonn K. Curls, Member

Attest:

Secretary

Injury No.: 16-028974

Employee: Tony W. Darby

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.

The administrative law judge improperly determined that the employer was responsible for workers' compensation benefits relating to claimant's tinnitus, including providing future medical aid, in that the employee failed to carry his burden of establishing that his tinnitus, if he had any, was medically causally related to noise exposure while working for employer.

Three expert witnesses offered evidence in this case: Drs. Raymond Cohen, Anthony Mikulec, and James Palen. Only two of those doctors addressed medical causation in any significant way. Drs. Cohen and Mikulec agreed on three vital points: 1) hearing loss frequently causes tinnitus; 2) employee does not have compensable hearing loss; and 3) it is likely that employee's non-compensable hearing loss directly caused his tinnitus.

The issue is whether a compensable injury or occupational disease can be caused by a non-compensable injury or occupational disease.

In this case, Dr. Cohen and Dr. Mikulec generally agree that employee's high frequency hearing loss is the functional cause of his tinnitus, assuming one believes the employee's testimony that he has ringing in his ears. However, it is also clear that employee's high frequency hearing loss is not compensable under the current statutes and regulations. See § 287.197; 8 CSR 50.5.060.

It is a logical non-sequitur to conclude that a non-compensable condition can lead to a compensable injury or occupational disease or condition. A non-compensable cause should be treated as a preexisting condition or condition developed outside the workplace and a resultant untoward event should be treated as an idiopathic event. As an example, if an employee had a congenital defect or condition of the connective tissue, does the spontaneous rupture of his patellar tendon while at work become compensable? Under many circumstances, the answer would be no, as the prevailing factor causing the event was not a work-related activity. Similarly, an employee injured by missing a step because of non-work related eye dysfunction should not be entitled to workers' compensation benefits.

These examples are strongly congruous with the instant case. Because employee's tinnitus—assuming one believes he has it—appears to have been caused from his non-compensable hearing loss, it should be treated as an idiopathic condition having no connection to his work for employer. Logically, employee is entitled to neither permanent partial disability for his tinnitus nor future medical in the form of audiologist visits, hearing aids, and batteries.

The administrative law judge relies on *Malone v. Ogden Aviation Services, Insurance Company of the State of Pennsylvania, and Treasurer of Missouri as Custodian of the Second Injury Fund, Inj. No. 97-451376* (LIRC, January 18, 2002), affirmed without written opinion in *Malone v. Ogden Aviation Servs. 84 S.W.3d 500* (Mo. App. 2002). *Malone* found that long-term exposure to high-pitched jet engine noise caused employee's tinnitus. This case is clearly distinguishable from *Malone* in that here, the uncontested testimony of the examining doctors

Injury No.: 16-028974

Employee: Tony W. Darby

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was that employee's high frequency hearing loss was the cause of his tinnitus, not the industrial noise that may have caused his non-compensable hearing loss.

The majority errs in affirming the administrative law judge's ruling that a compensable loss can result directly from a non-compensable loss.

**Nature and extent of permanent partial disability related to employee's alleged tinnitus**

Employee's credibility regarding his claimed tinnitus and resulting disability is highly questionable. Both employee and employer's doctors sent employee to doctors for independent medical examination. Dr. James Palen examined employee in Cape Girardeau. While Dr. Palen recorded employee's complaint of tinnitus, he also recorded that employee told him he really had no issues or problems caused by the tinnitus. Employee confessed that he knew he was sent to Dr. Palen in support of his claim. Presumably, he told Dr. Palen, a friendly doctor, all he had to say regarding the nature and extent of his problems. Employee's failure to complain to Dr. Palen that his life was significantly affected by the tinnitus suggests that it was only a minor bother.

Employer sent employee to Dr. Anthony Mikulec for an independent medical examination to determine whether employee had any compensable injury or condition. When employee arrived at Dr. Mikulec's office, he was asked to fill out a questionnaire to help identify his problems. One of the questions asked him was whether he had "ringing in the ears." The employee checked "No". Dr. Mikulec relied on employee's denial of tinnitus and did not conduct his normal inquiry into the nature and extent of ringing in the ears. However, the doctor's independent medical examination report recorded that employee denied tinnitus.

Again, employee confessed he knew that employer sent him to see Dr. Mikulec was to determine if he had a condition for which employer would have to pay. Employee agreed it was in his best interest to tell Dr. Mikulec about all of his hearing related problems. Yet, he failed to appropriately mark the questionnaire and further missed his opportunity to tell Dr. Mikulec that he had ringing in his ears or, as he told Dr. Palen, that he really suffered no significant problems because of tinnitus.

Of the three doctors who examined employee and presented their opinions to the administrative law judge, only Dr. Mikulec has true standing in this specialized field. His opinions and testimony stand head and shoulders above the opinions offered by Drs. Cohen and Palen, despite the fact that there is some congruity and overlap in the opinions of all three doctors.

Only Dr. Cohen, the last doctor to evaluate employee, expressed the opinion that tinnitus had a significant impact on employee's life and that employee might benefit from using hearing aids as a masking device. It is notable that Dr. Cohen does not treat tinnitus patients, has never fit a hearing aid in his life, and testifies only for employees for a living.

It is worth noting that employee's tinnitus complaints grew progressively worse as three doctors evaluated him: Employee indicated to Dr. Mikulec that he did not have tinnitus at all. Employee told Dr. Palen that he had tinnitus but that it did not bother him. Employee told Dr. Cohen that he not only had tinnitus but that the condition gave him considerable problems in many areas of his life. The increase in employee's complaints over time is suspicious and calls into question whether employee even has the complained-of condition.

It is equally noteworthy that during the years from the 1980's, when employee testified he first began to notice ringing in his eras, until the day employer's plant closed in March of 2016,

Injury No.: 16-028974

Employee: Tony W. Darby

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employee made no complaint to anyone regarding tinnitus. Despite employee's claims of major disturbances in his life from the tinnitus, employee sought no treatment of any sort on his own.

In light of employee's significant credibility problems, together with the completely subjective and unmeasurable nature of tinnitus, the administrative law judge improperly concluded that employee had the condition and that employee had problems from tinnitus, despite employee's extensive testimony. Because employee was not trustworthy and credible, neither are Dr. Cohen's opinions regarding nature and extent and the need for future medical aid.

In light of significant contradictory evidence in this case, employee failed to carry his burden of proof. Consequently, the administrative law judge's award is contrary to the greater weight of the evidence and should be reversed.

Because the majority has determined otherwise, I respectfully dissent.

Reid K. Forrester, Member

**Employee:** Tony Darby

**Dependents:** N/A

**Employer:** Noranda Aluminum, Inc.

**Additional Party:** N/A

**Insurer:** New Hampshire Insurance Co. c/o Sedgwick Claims Management Services

**Appearances:**

- Kimberly Heckemeyer, attorney for the employee.

- David Remley and Jason Crowell, attorneys for the employer-insurer.

**Hearing Date:** June 17, 2019

**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? On or about March 11, 2016.
5. State location where accident occurred or occupational disease contracted: New Madrid 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: Tony Darby

Injury No. 16-028974

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 Noranda Aluminum, Inc.

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: 10% 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: $1,070.00

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

1. Employee's average weekly wage: 1,070.69

1. Weekly compensation rate: 713.39 for temporary total disability and $464.58 for permanent partial disability.

1. Method wages computation: By agreement.

1. Amount of compensation payable: $18,583.20 for permanent partial disability.

1. Second Injury Fund liability: N/A.

1. Future requirements awarded: Yes, see Rulings of Law.

Said payments shall be payable