| IN RE: VIRGIL A. DEGOLIER | ) | DOCKET NO. 60,471 & 60,471- |
| ) | ||
| Claim No. H-782709 | ) | DECISION AND ORDER |
| ) |
- APPEARANCES
- Claimant, Virgil A. Degolier, by
- Aaby, Knies & Robinson, per
- Robert M. Knies and John Aaby
- Employer, Columbia Cement Company, by
- Richard B. Johnson
- Department of Labor and Industries, by
- The Attorney General, per
- Meredith Lehr, Assistant
This is an appeal filed by the employer on September 15, 1981 and a cross appeal filed by the claimant on October 6, 1981, from an order of the Department of Labor and Industries dated August 12, 1981, which adhered to the provisions of a prior order dated June 5, 1981, granting the claimant a permanent partial disability award of 38.40% loss of hearing in both ears less prior awards. The Department order is affirmed.
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 employer to a Proposed Decision and Order issued on February 18, 1983 in which the order of the Department dated August 12, 1981, was affirmed.
The issue presented by this appeal and cross-appeal, and the evidence contained in the record, are adequately recited in the Proposed Decision and Order. We agree with the proposed disposition of this matter.
The controlling element in this case is the lack of any evidence which would indicate the Department order of August 12, 1981, is incorrect. While the parties before this Board agreed to an examination of the claimant by a physician, and then by a firm of audiologists, this was for the purpose of reaching a possible agreed settlement of this case. Such an agreed settlement was not possible; and those [2] examination reports are not a part of the record for determining this matter on a "contested case" basis. See WAC 263-12-093; WAC 263-12-095(4); and WAC 263-12-130. Further, the Department's claim file is not a part of the Board's record. WAC 263-12-135.
Counsel for the employer did submit herein the deposition of Dr. Donald G. Harvey, who is not a physician but has a doctorate degree in audiology. This deposition was never formally published, although it was considered by our industrial appeals judge, and by counsel for all parties, to be properly in evidence herein. Even when so considered it is questionable whether it would be competent evidence to establish the degree of the claimant's hearing loss due to environmental working conditions and the degree of his hearing loss due to other causes. It is our conviction that such a segregation and causal relationship question can only be established by the testimony of a physician, preferably an otolaryngologist. We do not doubt the professional ability of an audiologist to measure the hearing loss, but causal relationship depends on an interpretation of history combined with accurate medical diagnosis. It is not shown by this record that a Ph.D in audiology similarly qualifies an individual to make the same reasoned medical judgments. We will agree with the Proposed Decision and Order that any increase or decrease in the claimant's award as made by the department would have to be based on evidence supported by one so qualified.
We have long adhered to the proposition established by the case law cited in the Proposed Decision and Order, that ratings concerning the extent of physical and mental impairment, i.e., permanent partial disability, must be supported by competent medical evidence. We will not supplant that interpretation of the law in this appeal.
After consideration of the Proposed Decision and Order and the Petition for Review filed thereto, and a careful review of the entire record before us, we are persuaded that the disposition made by the [3] Proposed Decision and Order is correct as a matter of fact and as a matter of law.
Proposed Finding No. 2 is deleted, and replaced by the Board's Finding No. 2 as follows:
2. The record before this Board contains no probative evidence to show the incorrectness of the Department's order of August 12, 1981, making a permanent partial disability award to the claimant for occupational hearing loss of 38.40% complete loss of hearing in both ears.
The proposed findings, as above amended, conclusions and order are hereby adopted as this Board's final findings, conclusions and order and are incorporated herein by this reference.
It is so ORDERED.
Dated this 18th day of May, 1983.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
MICHAEL L. HALLChairperson
/s/
FRANK E. FENNERTY, JR.Member
/s/
PHILLIP T. BORKMember