APPEARANCES:

 

Claimant, Ronald G. Lovell, by

Maxwell & Webb, per

Odin Maxwell

 

Self-Insured Employer, Georgia Pacific Corp., by

Law Office of Lee Schultz, per

Lee E. Schultz

 

            The claimant, Ronald G. Lovell, filed an appeal with the Board of Industrial Insurance Appeals on July 8, 2003, from an order of the Department of Labor and Industries dated May 21, 2003.  In this order, the Department corrected an order dated March 20, 2003, and ordered the self‑insured employer to accept the claim for occupational hearing loss.  Further, the Department closed the claim with directions to the self-insured employer to pay the claimant a permanent partial disability award equal to 21.16 percent complete loss of hearing in both ears, less any prior awards.  The self-insured employer was directed to accept responsibility for the purchase and maintenance of hearing aids and the decision was made using results of an August 14, 2002 audiogram.  Additionally, the Department determined that the self-insured employer was directed to deny responsibility for 2.35 percent binaural hearing loss caused by exposure to non-occupational noise.  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 claimant to a Proposed Decision and Order issued on September 28, 2004, in which the industrial appeals judge reversed the order of the Department dated May 21, 2003, and remanded this matter to the Department with directions to accept the claim for occupational hearing loss; direct the self-insured employer to pay the claimant a permanent partial disability award equal to 21.57 percent of the complete loss of hearing in both ears plus an additional 3 percent loss of hearing for tinnitus, to be paid pursuant to the schedule of benefits in effect on March 8, 1990; find that the self-insured employer is responsible for the purchase and maintenance of hearing aids; and to thereupon close the claim. [2]

             The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed.  The rulings are affirmed. 

             The issues raised in this appeal are the extent of permanent partial disability associated with Mr. Lovell's binaural hearing loss and the date of manifestation of that hearing loss.  The evidence presented in this record is accurately set forth in the Proposed Decision and Order.  We have granted review because we disagree with our industrial appeals judge regarding the date of manifestation of Mr. Lovell's occupational hearing loss.  On this record, we find that the date Mr. Lovell's hearing loss was first manifest is December 4, 2000. 

             We agree with the analysis in the Proposed Decision and Order regarding the permanent partial disability for occupational binaural hearing loss.  The record establishes that Mr. Lovell suffers from a permanent partial disability for binaural hearing loss, as a result of occupational exposure, which is equal to 21.57 percent loss of hearing in both ears.  This is based on the audiogram dated May 8, 2002, which was conducted by Thomas Stackhouse, M.D.  We also agree with our industrial appeals judge regarding the disability rating for tinnitus.  We believe an additional 3 percent of hearing disability is attributable to the tinnitus condition Mr. Lovell suffers as a result of his occupational noise exposure.  The 3 percent tinnitus rating is established by the opinions of Alan Langman, M.D., and John P. Lynch, M.D.  We accept their reasoned opinions. 

             Our industrial appeals judge also determined that Mr. Lovell's hearing loss was first manifest on March 8, 1990.  Our industrial appeals judge reasoned that the audiograms prior to 1990 were contradictory and should not be accepted to establish a first date of manifestation of the occupationally induced hearing loss.  Instead, our industrial appeals judge relied on an audiogram dated March 8, 1990, which showed a ratable hearing loss in one ear.  However, the record is clear that the first audiogram to show a ratable hearing loss in both ears was done on December 4, 2000.   

             We hold that the correct date of manifestation for binaural hearing loss is the date that binaural hearing loss becomes partially disabling.  See, also, In re Vernon A. Hawkins, Dckt. No. 02 10174 & 02 12767 (September 14, 2004).  To the extent these holdings are inconsistent with our holding in In re Larry Wass, BIIA Dec., 01 11201 (2002), Wass is overruled.  In Mr. Lovell's case, although he had ratable hearing loss in one ear as early as 1990, it is clear from the record that the first ratable binaural hearing loss was found by audiogram dated December 4, 2000.  December 4, 2000, is the date Mr. Lovell's binaural hearing loss first became partially disabling.  [3]

FINDINGS OF FACT

 

1.         The claimant, Ronald G. Lovell, filed an application for benefits with the self-insured employer on April 5, 2002, in which he alleged that he sustained an occupational disease during the course of his employment with Georgia Pacific, Corp.  The first time he was informed by a physician, in writing, that he had occupational hearing loss, proximately caused by and arising out of his employment with Georgia Pacific, Corp., was the date Dr. Stackhouse assisted him in preparing his application in 2002.   The claim was allowed on a temporary and interlocutory basis on April 29, 2002.

 

            The Department issued an order on March 20, 2003, in which it allowed and closed the claim and ordered the self-insured employer to pay the claimant a permanent partial disability award equal to 35.62 percent complete loss of hearing in both ears, found the employer to be responsible for the purchase and maintenance of hearing aids, stated that it used the results of an August 14, 2002 audiogram, and that the condition of tinnitus was factored in to determine the award.  The employer protested this order on April 22, 2003.

 

            The Department issued an order on May 21, 2003, in which it corrected the March 20, 2003 order; ordered the employer to accept the claim for occupational hearing loss; found the medical condition stable; ordered the employer to pay the claimant a permanent partial disability award equal to 21.16 percent complete loss of hearing in both ears less prior awards; found the employer responsible for the purchase and maintenance of hearing aids; found that the decision was made using the results of the August 14, 2002 audiogram, the condition of tinnitus was factored in to determine the permanent partial disability award; and directed the employer to deny responsibility for the remaining 2.35 percent binaural hearing loss caused by exposure to non-occupational noise.  The claimant filed a Notice of Appeal from this order with the Board of Industrial Insurance Appeals on July 8, 2003.  On July 15, 2003, the Board issued an order in which it granted the appeal, assigned it Docket No. 03 16736, and ordered that further proceedings be held.

 

2.         The claimant sustained occupational hearing loss and tinnitus that arose naturally and proximately from the distinctive conditions of his employment with Georgia Pacific, Corp.

 

3.         The claimant was given on-site audiograms at Georgia Pacific, Corp., beginning in 1972 and continuing at least through September 19, 1996.  The early tests were given in the Georgia Pacific building, but later they were moved to a van.  Mr. Lovell was taken directly from work and sent to his test.  Multiple employees took the test at the same time and one technician performed all the tests. [4]

 

4.         Mr. Lovell took two tests in January 1986.  One of these tests showed a small amount of ratable impairment for noise related hearing loss in his left ear.  Between this test and the test taken on March 8, 1990 Mr. Lovell had two tests that showed no ratable impairment for his noise related hearing loss.  He then took an on-site audiogram on March 8, 1990, that showed ratable impairment of noise related hearing loss in one ear.  Mr. Lovell first had ratable binaural hearing loss, related to occupational noise exposure, on December 4, 2000. 

 

5.         Mr. Lovell first tested positive for conductive hearing loss on August 14, 2002.  This impairment was shown on an air induction test and was not proximately caused by noise.  The reason for this conductive hearing loss is unknown and can be due to a variety of reasons.

 

6.         The May 8, 2002 audiogram, which showed that Mr. Lovell had a ratable noise induced hearing loss equal to 21.57 percent complete hearing loss in both ears is the test that most accurately reflects his occupational hearing loss as of May 21, 2003.  Mr. Lovell also sustained a permanent partial impairment equal to 3 percent due to his occupationally related tinnitus.

 

7.         As of May 21, 2003, Mr. Lovell's hearing loss and tinnitus were fixed and stable and were not in need of further necessary and proper medical treatment.

 

CONCLUSIONS OF LAW

 

1.         The Board of Industrial Insurance Appeals has jurisdiction over the parties to and the subject matter of this appeal.

 

2.         Mr. Lovell sustained an occupational disease diagnosed as bilateral noise induced hearing loss and tinnitus, as defined in RCW 51.08.140.

 

3.         Mr. Lovell's occupational disease, diagnosed as bilateral noise induced hearing loss, became partially disabling, within the meaning of RCW 51.32.180, on December 4, 2000.

 

4.         The Department order dated May 21, 2003, is incorrect and is reversed.  This matter is remanded to the Department of Labor and Industries with direction to issue an order in which it accepts the claim for occupational hearing loss, directs the self-insured employer to pay the claimant a permanent partial disability award equal to 21.57 percent of the complete loss of hearing in both ears, plus an additional 3 percent loss of hearing for tinnitus to be paid pursuant to the schedule of benefits in [5] effect on December 4, 2000, find the employer responsible for the purchase and maintenance of hearing aids, and thereupon to close the claim.

 

It is so ORDERED.

Dated this 23rd day of February, 2005.

                                                                                 BOARD OF INDUSTRIAL INSURANCE APPEALS

 

 

 

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                                                                                 THOMAS E. EGAN                                 Chairperson

 

 

 

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                                                                                 FRANK E. FENNERTY, JR.                          Member

 

 

 

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                                                                                 CALHOUN DICKINSON                                Member