| IN RE: ROBERT E. MACPHAIL | ) | DOCKET NO.89 3689 |
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| CLAIM NO. T-026467 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Robert E. MacPhail, by
- Randolph O. Petgrave, Attorney at Law>
- Self-insured Employer, Educational Service District No. 121,
- Worker's Compensation Trust, by
- Hall & Keehn, per
- Thomas G. Hall; Linda Bauer, Legal Assistant
This is an appeal mailed by the claimant, Robert E. MacPhail, on August 25, 1989 and received by this Board on August 28, 1989, from an order of the Department of Labor and Industries dated June 26, 1989 which affirmed the provisions of a Department order dated May 15, 1989, rejecting the claim for the reason that no compensable hearing loss had been sustained as defined by the Washington Industrial Insurance Act. 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 5, 1991 in which the order of the Department dated June 26, 1989 was reversed and the claim remanded to the Department with direction to allow the claim for the occupational disease of bilateral compensable hearing loss and to take such further action as indicated by law. [2]
The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed and said rulings are hereby affirmed.
Our industrial appeals judge determined that Mr. MacPhail sustained a "compensably disabling" hearing loss causally related to noise exposure in his employment for Riverview School District. Three physicians specializing in otolaryngology testified that Mr. MacPhail had a hearing loss causally related to his employment. Thomas C. Smersh, M.D., testified that Mr. MacPhail had a binaural hearing loss equal to 0.469%. Felix W. K. Chu, M.D., did not testify to the extent of permanent disability sustained by Mr. MacPhail. Gregory Chan, M.D., testified that Mr. MacPhail had a 17.5% binaural loss of hearing.
Under Washington law, permanent partial disability for hearing loss is governed by RCW 51.32.080. Under subsection (2) of that section, the Department is authorized to consider any nationally recognized medical guides for determining various bodily impairments. In cases involving testing for hearing loss and determining the extent of loss, the American Medical Association Guides to the Evaluation of Permanent Impairments are used. Under the AMA guides, if binaural loss is less than 1.7% there is no permanent impairment present. Therefore, if we accept the testimony of Dr. Smersh we must conclude that the claimant has not sustained a compensably disabling hearing loss.
Dr. Chan did testify to a 17.5% binaural loss of hearing. The testing performed by Dr. Chan is, however, fatally flawed. The examination was performed at 2:30 P.M. on June 8, 1988 after Mr. MacPhail [3] had spent a full day teaching band. It is the exposure to loud noises while teaching band which caused Mr. MacPhail's hearing loss. At the time of Dr. Smersh's evaluation and testing on November 2, 1988, the claimant had been removed from any workplace exposure for close to five months. The medical evidence is uniformly to the effect that exposure to noise shortly before testing for permanent loss will affect the accuracy of the test results. Thus, Dr. Smersh's evaluation must be accepted in determining that the claimant's hearing loss is not compensably disabling. Furthermore, his test results were comparable to those obtained at the Mason Clinic in May 1989.
Our industrial appeals judge determined that this Board lacked authority to determine the extent to which Mr. MacPhail has a permanent partial disability. As a general proposition it is true that in reviewing an order rejecting a claim, the Board's scope of review is limited to either affirming the rejection or reversing the rejection order and remanding the matter for further administrative action on the claim. We are so limited because the Board's authority is appellate in nature and we may not pass upon an issue which has not yet been considered by the Department. In the instant case, however, the Department rejected the claim on the basis that "no compensable hearing loss was sustained as defined by the Washington State Industrial Insurance Act". The Department, therefore, had the opportunity to, and did in fact, pass on the issue of permanent partial disability. Therefore such issue is properly before us. [4]
Having reviewed the record, we are convinced that the claim should be allowed to make sure that any and all medical bills incurred by the claimant for treatment, testing, or diagnosis of his hearing loss are paid. After such payment, the claim should be closed with no permanent partial disability award.
Proposed Findings of Fact Nos. 1 and 2 are hereby adopted as this Board's final findings. In addition, the Board enters the following findings and conclusions.
FINDINGS OF FACT
3. As a result of his exposure to loud sounds and music as described in Finding of Fact No. 2, the claimant developed binaural hearing loss of 0.469%. This minimal level of loss does not constitute a permanent impairment.
CONCLUSIONS OF LAW
- The Board has jurisdiction over the parties and subject matter of this appeal.
- Claimant's occupational disease of hearing loss is not compensably disabling.
- The Department order of June 26, 1989, which affirmed the provisions of the May 15, 1989 Department order rejecting the claim for the reason that there was no compensable hearing loss sustained as defined by the Washington Industrial Insurance Act, is reversed and the matter remanded to the Department with direction to allow the claim for the occupational disease of bilateral hearing loss, to order payment of all medical bills incurred by claimant for treatment, testing or diagnosis of that condition, and thereupon to close the claim with no award for permanent partial disability. [5]
It is so ORDERED.
Dated this 21st day of August, 1991.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
FRANK E. FENNERTY, JR. Member
/s/
PHILLIP T. BORK Member