| IN RE: ART MCDANIEL | ) | DOCKET NO. 03 10546 |
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| CLAIM NO. W-597680 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Art McDaniel, Pro Se
- Self-Insured Employer, U. S. Department of Energy, by
- Evans, Craven & Lackie, P.S., per
- Jon D. Floyd
The claimant, Art McDaniel, filed an appeal with the Board of Industrial Insurance Appeals on March 17, 2003, from an order of the Department of Labor and Industries dated March 10, 2003. In this order, the Department denied the claimant's application for benefits on the ground that the condition was not the result of the exposure alleged. The Department order is REVERSED AND REMANDED.
DECISION
Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision on a timely Petition for Review filed by the self-insured employer to a Proposed Decision and Order issued on February 27, 2004, in which the industrial appeals judge reversed the order of the Department dated March 10, 2003, and remanded the claim to the Department to issue an order that allows the claim for occupational hearing loss and directs the self-insured employer to pay an award for permanent partial disability equal to 28.81 percent of complete loss in both ears and to pay for the purchase and maintenance of hearing aids.
The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed. The rulings are affirmed. We have granted review because, while we agree with the conclusion in the Proposed Decision and Order that allowed this claim for occupational hearing loss, we believe the determination regarding permanent partial disability exceeds the scope of our review under the circumstances of this appeal. We reverse the Department's rejection order and remand the claim for the Department to issue an order allowing it for occupational hearing loss and thereafter for further action as indicated.
As of March 10, 2003, Mr. McDaniel was a 69-year-old man with a work history consisting of 44 years as a truck driver, including two years in the military followed by long-haul trucking and, from approximately 1967 until his retirement on April 13, 1998, driving trucks at constructions sites around Hanford. As a long-haul driver, the claimant was exposed to considerable road noise. At [2] Hanford, in addition to the truck noise, Mr. McDaniel was regularly exposed to construction noises, including, welding, jackhammers, and other noises. Mr. McDaniel did not wear hearing protection because he was operating trucks at close proximity to other workers and needed to hear directions in order to ensure everyone's safety.
While working at Hanford, Mr. McDaniel was given hearing tests every other year from 1977 until 1989, and then every year thereafter. The claimant's last hearing test was on April 13, 1998, his 65th birthday, which was also the date he retired. None of these tests showed a compensable hearing loss. Mr. McDaniel's scores on the April 1998 test were as follows: left ear: 5 dB loss at 500 Hz; 15 dB loss at 1 KHz; 25 dB loss at 2 KHz; and 15 dB loss at 3 KHz, for a total of 60 dB total loss, well below the 25 dB (average) threshold for compensable loss. The right ear scores were: 10 dB loss at 500 Hz; 25 dB loss at 1 KHz; 20 dB loss at 2 KHz; and 20 dB loss at 3 KHz, for a total of 75 dB total loss, again well below the 25 dB (average) threshold for compensable loss.
Mr. McDaniel testified that the audiograms were conducted in a room in which up to twelve people were being tested simultaneously. He stated that he found it hard to concentrate during the testing due to the shuffling of paper, moving of chairs, and other background noises. Janet S. Arnold, M.D., the claimant's attending family practice doctor, who acknowledged that she was never present at Hanford when hearing testing was performed, stated that these types of tests had poor validity. John O. Kildow, M.D., a retired surgeon with occupational medicine experience who was employed by the Hanford Environmental Health Foundation, testified that the employer conducted the tests in a four-chair booth with individual headsets. He acknowledged the possibility that the workers being tested could be distracted. Dr. Kildow testified that the machine used for the audiogram was calibrated the day Mr. McDaniel was tested, the test was performed by a certified "technician" (the record is unclear whether that person was an audiologist), and the records at the time of the test indicated Mr. McDaniel had not been exposed to noise within the 14 hours prior to the audiogram.
Mr. McDaniel's testimony indicates that he first noticed he was having hearing problems in the late 1980s or early 1990s. Although he had yearly physicals and hearing tests, he was never told that he had hearing problems. While he remained employed at Hanford, the claimant never sought medical treatment for his hearing loss. After he retired on April 13, 1998, his hearing "started going downhill worse;" he could not hear someone talking in the next room. Mr. McDaniel went to a hearing aid company, Quality Hearing Solutions, had an audiogram performed on October 19, 2001, and filed the application for benefits for occupational hearing loss. It is unclear [3] by whom, or exactly when Mr. McDaniel was informed that he had hearing loss related to work. Another audiogram was performed in June 2003 at the Columbia Basin Hearing Center. In August 2003, having become disenchanted with the hearing aid company, Mr. McDaniel sought treatment from Dr. Arnold.
According to Dr. Arnold, the June 2003 audiogram revealed moderate to severe sensorineural hearing loss with tinnitis that was "not [in] a classic pattern" for noise induced hearing loss. Nonetheless, Dr. Arnold concluded that the hearing loss quantified by the audiogram was proximately caused by occupational exposures to noise at work. She concluded that he needed a specific type of hearing aid, a V-5252 in ear programmable aid. Dr. Arnold stated that the audiogram revealed a ratable hearing loss equal to 27.25 percent left ear/36.625 percent right ear, for a binaural rating of 28.8125 percent complete loss of hearing. Dr. Kildow testified that both the October 19, 2001 and June 16, 2003 audiograms showed compensable loss that "may reflect noise-induced loss" in a pattern that suggested a combination of effects (causes) of the loss.
We recognize that there are questions regarding the validity of the employment audiograms. However, Mr. McDaniel's description of twelve people in a room, all being tested at the same time, was refuted by Dr. Kildow and not supported by first-hand observation by Dr. Arnold. The validity of those audiograms is supported by their consistency over time. They revealed a slow and consistent progression of hearing loss in the claimant, a pattern that is supported by the history of his exposures to injurious noise at work. Dr. Kildow admitted that there was a chance that workers could become distracted by the presence of up to three other workers being tested at the same time. If such distractions caused errors in the test results, those errors should either consist of inconsistent and obviously erroneous results when compared with other audiograms or the recording of higher scores (greater hearing loss) if the distraction caused a failure to acknowledge or report a noise that was in fact heard. It is difficult to imagine how distraction during an audiogram could result in consistent scores suggestive of better hearing than a worker actually has.
In order for Mr. McDaniel's claim for occupational hearing loss to be allowed, he must prove that occupational exposures to noise were a natural and proximate cause of his hearing loss. The claimant's testimony clearly established that he was exposed to an excessively noisy work environment for over four decades. The great weight of medical evidence supports the conclusion that he sustained a hearing loss that was caused at least in part by exposures to noise at work, even though the hearing loss had not reached a "compensable" level until it worsened after he retired. Dr. Arnold noted that the 1998 audiogram showed hearing loss that was caused by [4] exposures to noise at work. Dr. Kildow concurred, testifying that the series of employment audiograms beginning in 1977 "indicates a very perceptible increase in decibel loss over the 21 years" the claimant was employed at Hanford, which is to be expected with aging and exposure to industrial noise. Dr. Kildow did not deny the existence of a causal link between noise exposures at work and at least some of the claimant's hearing deficits.
Relying on the April 18, 1998 audiogram and the earlier pre-retirement audiograms, the employer argues that the claim should be rejected because any hearing loss the claimant sustained was not compensable. The term "compensable loss" in occupational hearing loss cases refers to hearing impairment that has reached a level at which the worker becomes entitled to a permanent partial disability award. Hearing loss sufficient to require treatment in the form of hearing aids may manifest itself in a worker even though it does not reach the level of a "compensable loss" of hearing. A similar circumstance was presented to us by In re Robert MacPhail, BIIA Dec., 89 3689 (1991). In that case we accepted a hearing evaluation that showed that the worker had a "minimal" binaural hearing loss, but one that did not reach the threshold to establish a permanent impairment, and directed the Department to allow the claim notwithstanding the lack of any compensable hearing loss. Like our industrial appeal judge, we believe that to be the appropriate disposition of the allowance issue in this case as well.
However, in addition to directing claim allowance, the Proposed Decision and Order also directed the employer to pay a permanent partial disability award based on the scores found in one of the post-retirement audiograms. We believe this direction to be beyond the scope of our review in this appeal. In MacPhail, the scope of our review extended to the issue of permanent partial disability only because the Department order that rejected that claim rested on a finding by the Department that "no compensable hearing loss had been sustained." We noted that the inclusion of this language in that order meant that the Department "had an opportunity to, and did in fact, pass on the issue of permanent partial disability." MacPhail, at 3. In this case, however, the Department order under appeal rejected the claim merely because "the condition was not the result of the exposure alleged." The Department never considered or ruled upon the issue of permanent partial disability of the hearing loss condition. As indicated in MacPhail, the Board's authority is appellate only; it may not pass upon an issue that had not been considered by the Department.
We recognize that not ruling on Mr. McDaniel's entitlement to a specific form of treatment and permanent partial disability may result in further litigation in the future. Even if that were true, such an argument does not justify an extension of the scope of our review beyond that allowed by [5] law. We also believe it is factually premature, as well as legally premature, for this claim to be closed with or without a permanent partial disability award. Mr. McDaniel has never been evaluated by an otolaryngologist or other physician specializing in hearing loss and/or diseases of the ear. Both Dr. Arnold and Dr. Kildow acknowledge unusual aspects to the claimant's pattern of hearing loss. His hearing loss is worsening dramatically, as recorded by the post-employment audiograms. We do not believe that any of the parties to this claim are served by its premature closure under the circumstances.
FINDINGS OF FACT
- On December 12, 2001, the claimant, Art McDaniel, filed an application for benefits with the Department of Labor and Industries, alleging that he had sustained hearing loss due to exposure to noise arising out of the course of his employment with the Department of Energy/Fluor Hanford on April 15, 1997. On March 10, 2003, the Department issued an order in which the Department rejected Mr. McDaniel's claim on the grounds that his condition was not the result of the exposure alleged. On March 17, 2003, the claimant filed an appeal with the Board of Industrial Insurance Appeals from the March 10, 2003 order. On March 27, 2003, the Board issued an order granting the appeal, assigning it Docket No. 03 10546, and directing that proceedings be held.
- For approximately 32 years, Art McDaniel worked for Fluor Hanford and its predecessors as a truck driver, retiring in April 1998. During his 32 years of employment at Hanford, Mr. McDaniel was exposed to loud noises from numerous sources, including diesel engines, heavy equipment, jackhammers, and air compressors. Mr. McDaniel never wore any type of hearing protection during his 32 years of employment at Hanford. [6]
3. As of March 10, 2003, Mr. McDaniel suffered from bilateral hearing loss that was naturally and proximately caused, at least in part, by his exposure to injurious levels of noise arising out of his employment with Fluor Hanford and its predecessors. This condition required medical diagnostic testing and treatment.
CONCLUSIONS OF LAW
- The Board of Industrial Insurance Appeals has jurisdiction over the parties to and the subject matter of this appeal.
- Art McDaniel's bilateral hearing loss constitutes an occupational disease within the meaning of RCW 51.08.140.
- The order of the Department of Labor and Industries dated March 10, 2003, is incorrect and is reversed. The claim is remanded to the Department to issue an order directing the self-insured employer to allow the claim as an occupational disease and to provide benefits as indicated by the facts and the law.
It is so ORDERED.
Dated this 15th day of June, 2004.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
THOMAS E. EGAN Chairperson
/s/
FRANK E. FENNERTY, JR. Member
/s/
CALHOUN DICKINSON Member