BIIA Significant Decision - Robert Lenk, Sr., Docket No. 91 6525

IN RE: ROBERT K. LENK, SR.	)	DOCKET NO. 91 6525
	)
CLAIM NO. N-048062	)	DECISION AND ORDER
	)

APPEARANCES
Claimant, Robert K. Lenk, Sr., by: Rumbaugh & Rideout, per; Teri L. Rideout
Employer, Western Wright Marine, Inc., by: Edward S. Wright
Department of Labor and Industries, by: Office of the Attorney General, per; Thomas L. Anderson and Tyler M. Johnson, Assistants

This is an appeal filed on behalf of the claimant, Robert K. Lenk, Sr., on December 4, 1991 from an order of the Department of Labor and Industries dated November 25, 1991. That order affirmed a prior Department order dated June 28, 1991 which closed the claim with a permanent partial disability award equal to 28.43% of complete hearing loss in both ears. Reversed and remanded.

PROCEDURAL AND EVIDENTIARY MATTERS

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, Western Wright Marine, Inc., to a Proposed Decision and Order issued on February 4, 1993 in which the order of the Department dated November 25, 1991 was reversed and the claim remanded to the Department with directions to pay the claimant a permanent partial disability award equal to 28.43% of complete hearing loss in both ears, to accept the claimant's tinnitus condition as an occupational disease, to pay the claimant a permanent partial disability award for his tinnitus [2] equal to 10% as compared to total bodily impairment, and to thereupon close the claim.

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.

The sole issue on which evidence was presented in this case is whether the claimant is entitled to a permanent partial disability award for his occupationally-related tinnitus, in addition to his award for bilateral partial hearing loss, the amount of which is not in dispute. Our industrial appeals judge concluded that the tinnitus condition warrants a permanent partial disability award equal to 10% as compared to total bodily impairment. While we agree with this ultimate determination, we feel it is necessary to further explain the reasons for our decision. We also feel compelled to respond to the employer's contention in his Petition for Review that his company should not be held solely responsible for the claimant's hearing impairments.

DECISION

The claimant, Robert K. Lenk, Sr., is a 53 year old man who has worked for over 30 years as a machinist. The majority of such work was in California, but his most recent years of machinist jobs were in this state after he moved here in 1982. He worked as a machinist into early 1991. Although his employment exposed him to high noise levels, he did not use protective hearing devices except on an intermittent basis. Over the years, the claimant experienced a gradual decrease in his hearing. In early 1988, after commencing work at Western Wright Marine, Inc., Mr. Lenk also began to notice a high-pitched ringing noise in his ears. In September of 1990 the claimant was examined by Shahn Divorne, a licensed [3] hearing aid specialist. Mr. Divorne tested the claimant for hearing aids and referred him to Dr. Gordon G. Thomas, an otolaryngologist, to evaluate Mr. Lenk's complaints of hearing loss and ringing in the ears.

Dr. Thomas first saw the claimant on September 19, 1990. At that time, an audiogram was performed which revealed binaural noise-induced hearing loss at the frequencies from 1,500 to 4,000 hertz, with recovery at the 6,000 hertz level. To measure the ringing in the claimant's ears, Dr. Thomas also had the claimant undergo a masking test. This test showed an intensity or volume of the ringing of 94 decibels bilaterally at the high-pitch frequency of 8,000 hertz. Based on these examinations, Dr. Thomas diagnosed the claimant with neurosensory hearing loss and also bilateral tinnitus, both of which he related to occupational exposure. To treat these conditions, the claimant was provided hearing aids which were also fitted with masking devices. These improved his hearing, but not his high-pitched tinnitus problem.

In October of 1991, the claimant was examined by Dr. William Ritchie, also an otolaryngologist, at the request of the Department of Labor and Industries. Dr. Ritchie performed a series of audiometric studies which showed bilateral sensorineural hearing loss with normal levels of speech recognition and discrimination. Dr. Ritchie rated the claimant's percentage hearing impairment based on measurements at the 500, 1,000, 2,000, and 3,000 hertz levels in accordance with the American Medical Association's Guide to the Evaluation of Permanent Impairment (AMA Guidelines). While Dr. Ritchie also diagnosed noise-induced binaural tinnitus, he did not provide a separate rating for this condition, nor did he perform a masking test. [4]

Dr. Thomas testified on behalf of the claimant. The Department countered with the testimony of Dr. Ritchie. Both doctors agreed that the claimant suffers from noise-induced tinnitus which is causally related to his work as a machinist. They also believe that this condition is permanent and not amenable to further treatment. Their only disagreement is whether the claimant should receive a separate permanent partial disability award for his tinnitus.

Dr. Thomas believes that tinnitus and hearing loss are distinct medical conditions which deserve separate ratings. In his opinion, the degree of disability attributable to the claimant's tinnitus is 10% to 15% as compared to total bodily impairment. He bases his rating on the claimant's masking test and the way in which the claimant is affected by his tinnitus. Dr. Ritchie, on the other hand, seems to believe that the claimant's tinnitus is a symptom of his hearing loss which cannot be rated separately because it is purely subjective. Thus, he believes that the impairment from tinnitus can only be evaluated within the hearing loss impairment.

We find that the claimant's tinnitus is a separate medical condition from his hearing loss. Both Drs. Thomas and Ritchie testified that tinnitus and hearing loss can occur independently. They also acknowledged that these conditions have very different sequelae. Although Dr. Ritchie believes that tinnitus interferes with hearing ability, he also admitted that it can cause problems which are not associated with hearing loss, such as impaired concentration and difficulty sleeping. This testimony is consistent with the AMA Guidelines (admitted as Exhibit No. 3), which classify tinnitus as a separate disturbance of the ear (Ch. 9.1). It is also in line with the [5] Department's own regulations which recognize that tinnitus can be an "accepted" condition requiring its own particular treatment modalities such as masking devices. WAC 296-20-1101.

The separate effects of hearing loss as compared to tinnitus, at least in part, are rather obvious. Although they both affect hearing ability, they do so in different ways. By definition, tinnitus is the presence of "noise", a ringing in the ears. Hearing loss, on the other hand, is the diminishment or absence of "noise", i.e., sound, in the ears. Tinnitus can appear without hearing loss, and vice-versa. The conditions can appear in the same person, but at different levels of frequency (pitch), which, from the evidence herein, is clearly Mr. Lenk's situation.

This brings us to Dr. Ritchie's concern that tinnitus is not a measurable impairment. The AMA Guidelines do state that, while the criteria for evaluating hearing impairment are "relatively specific", tinnitus, on the other hand, is "not measurable". However, these same guidelines do not consider this to be a bar to rating the impairment caused by tinnitus. Under Ch. 9.1 of the AMA Guidelines, physicians are instructed to "assign a degree of impairment that is based on severity and importance, and is consistent with established values". This obviously involves some subjective judgment on the part of the physician, but there are many kinds of impairment ratings which involve some element of subjectivity. Dr. Thomas' solution to reduce the degree of subjective evaluation was to have the claimant undergo a masking test which, even Dr. Ritchie acknowledged is a valid diagnostic tool used by many examiners in the field of otolaryngology. While, as Dr. Ritchie said, a masking test cannot by itself measure the degree of impairment caused [6] by tinnitus, it does provide the examiner with a means of quantifying the condition with some objectivity, by determining the intensity (loudness) and frequency level of the ringing sensation. We believe that this information can, in turn, be used as a reasonable medical basis to gauge the accuracy and reliability of the patient's complaints. In making this observation, we are not unmindful that the results of the masking test are dependent, in part, on the subjective responses of the patient. However, as Dr. Ritchie conceded, this is really no different from an audiogram which is the accepted test for evaluating hearing loss impairment, and which also has a subjective element inherent in its hearing loss measurements.

We also note that our courts have recognized that certain impairments are compensable even though they cannot be fully measured by objective tests. In Price v. Dep't of Labor & Indus., 101 Wn.2d 520 (1984), our State Supreme Court held that workers suffering from an industrially-related mental health condition are not required to present objective clinical evidence of worsening in order to have their claim reopened for additional benefits. In coming to this conclusion, the Court explained that psychiatric opinions are primarily based upon the patient's symptoms which are necessarily subjective in nature. Price at 528. It appears that workers with the medically-acknowledged condition of tinnitus face a similar situation, since such condition can affect them in much the same way as would a mental health impairment, (i.e., loss of sleep, loss of concentration, interference with interpersonal relations, etc.). Under these circumstances, we do not feel that it is reasonable to demand that workers such as Mr. Lenk be required to [7] demonstrate, in a completely objective manner, that which medical technology may be as yet unable to precisely quantify.

Having determined that tinnitus is a separate impairment from hearing loss, manifested by some different functional responses, we now turn to the manner in which it should be rated. Tinnitus is not listed as a specified permanent partial disability under RCW 51.32.080, nor does it fall under any of the categories of unspecified disabilities described in the Washington Administrative Code sections. WAC 296-20-200 et. seq. Nonetheless, this does not mean that tinnitus cannot be rated. WAC 296-20-220(1)(o) provides that bodily areas which are not included in the categories and which do not involve loss of hearing, loss of central visual acuity, loss of an eye by enucleation, or loss of the extremities or use thereof, "shall" be assessed for impairment "in terms of percentage of total bodily impairment". As noted above, hearing loss and tinnitus are not synonymous; they have different functional effects on the ears. Thus, we find that it was appropriate for Dr. Thomas to evaluate Mr. Lenk's impairment due to tinnitus under the above-cited special rule for unspecified disabilities.

Because there is no category which covers Mr. Lenk's tinnitus, we feel that it is proper to evaluate his impairment by analogizing to those unspecified disabilities which are categorized. This is certainly in line with the AMA Guide's instruction to assess the impairment "consistent with established values". As noted, we believe that tinnitus is quite analogous to a mental health impairment because they both involve a subjective component and can cause similar disruptions in activities of daily living. Accordingly, we can use the rules for rating [8] mental health impairments (WAC 296-20-340) as guides for our evaluation of Mr. Lenk's impairment due to tinnitus.

In opting for this approach, we do not suggest that the mental health categories should be mechanically applied to determine impairment ratings for tinnitus. Rather, we recognize that in many cases, the ultimate rating will fall between the various categories. For example, there is no guaranteeing that the increments of mental impairment, either in terms of describing the loss of function or in terms of the percentage of impairment, will correlate to increments of severity of tinnitus problems. We emphasize that we use the mental health impairment scheme by way of analogy only. Our decision in this matter does not prevent rating "between" categories as long as the rating is supported by the medical evidence of record and is not inconsistent with the descriptions of the mental health impairments.

In applying these principles to the facts at hand, we agree with Dr. Thomas that the claimant's industrially-related tinnitus is properly rated at a disability equal to 10% as compared to total bodily impairment. As previously noted, the masking test performed in September of 1990 measured the claimant's tinnitus at 94 decibels, which, in Dr. Thomas' opinion, is similar in intensity to a fire siren. In addition, the frequency (pitch) of the claimant's tinnitus is at a considerably higher level (8,000 hertz) than the frequencies of his ratable hearing loss (500 through 3,000 hertz). In other words, Mr. Lenk has an effect on his hearing functions due to his tinnitus which is not reflected in his permanent partial disability award for binaural hearing loss based solely on the loss at the lower frequencies. Even Dr. Ritchie stated that, while presence of tinnitus at one of the four frequencies at which [9] binaural hearing loss is rated would affect the percentage rating of such loss (i.e., would be encompassed within that rating), such would not be the case if the tinnitus was at higher levels outside of those frequencies.

Consistent with the results of the masking test showing an intense and high-pitched tinnitus, the claimant is frequently irritable, has difficulty sleeping nearly every night, and cannot understand conversations over the telephone. He also suffers severe headaches and is distracted due to impaired concentration. Given these disruptions in daily activities, we are satisfied that the claimant's impairment due to tinnitus most closely corresponds to the mild social and cognitive limitations contemplated under Category 2 of WAC 296-20-340. Although the rather severe results of Dr. Thomas' masking test (with which Dr. Ritchie stated he had no disagreement in light of his audiogram findings) might imply a greater impairment, there is no evidence that the claimant has lost interest in his usual daily activities or needs supervision to perform work activities, which factors are necessary and contemplated under any category above Category 2.

We must also note here that if the claimant's tinnitus was at frequency levels by which binaural hearing loss is measured, our decision could very well be different, since in such a situation, according to the evidence in this record, the tinnitus itself would affect and be encompassed within the binaural hearing loss percentage rating. A rating determination under such a factual scenario must necessarily await another case, with its medical evidence specifically addressed thereto.

Finally, we feel constrained to address Mr. Edward Wright's contention in his Petition for Review that his company, Western Wright [10] Marine, Inc., should not be held solely responsible for Mr. Lenk's occupationally-related hearing problems; although, as a legal matter, that issue is not before us in this narrowly defined appeal.

Mr. Wright points out that Mr. Lenk was exposed to high noise levels as a machinist for many years before, and for a period of time after, his employment period with Western Wright Marine, Inc. In fact, his work for this company was all in the year 1988. Mr. Wright states that the corporation was dissolved as of the end of 1988, and that new owners commenced operating the plant in 1989, and Mr. Lenk was rehired and worked for them in 1989 and 1990. These facts are corroborated by Mr. Lenk's own testimony. The same type of machinery work was continued with the same equipment, under the business name of Western Wright Marine, but with the word "Incorporated" being dropped from the name. It is also possible that Mr. Lenk may have done some machinist work for other employers in this state, after moving here in 1982 and prior to going to work for Mr. Wright in 1988; however, our testimonial record is not clear on this point. In light of this employment history, Mr. Wright argues that most, if not all, of the costs of this claim should be charged to other employers.

In this regard, our industrial appeals judge's Proposed Decision and Order found that Mr. Lenk's last injurious exposure to high levels of occupational noise occurred during his employment at Western Wright Marine, Inc. Based on the record before us, and in view of the limited issue we were called upon to decide (i.e., solely whether or not Mr. Lenk's tinnitus condition warrants a permanent partial disability award) such a finding should not be made, and is very possibly incorrect. While Mr. Lenk's occupational exposure at Western Wright Marine, Inc., was no [11] doubt injurious, it may not have been his "last" injurious exposure. That exposure appears to have occurred during his work for the successor employer, Western Wright Marine (with no "Inc.") in 1989 and 1990. If such is the case, the Department of Labor and Industries may possibly charge all costs of this claim to the industrial insurance account of Western Wright Marine, under the "last injurious exposure rule" which is used to assign liability between successive insurers for occupational disease benefits. This rule requires that the insurer "on the risk" during the most recent exposure, that has a causal relationship to the occupational condition, is solely liable for the costs of the claim. Weyerhaeuser Company v. Tri, 117 Wn.2d 128 (1991).

On the other hand, the Department has another rule regarding proration of costs resulting from occupational disease claims, WAC 296-17-870(6). This rule applies to such claims involving a worker's exposure to the "disease hazard" while working for two or more employers who are insured under the State Fund. The rule provides that the Department shall prorate the costs of the claim to each period of employment involving exposure to the hazard. If the Department applies this rule to the costs of this claim, such costs would be proportionately shared with Western Wright Marine, and perhaps with other employers in this state for whom Mr. Lenk may have done machinist work in the 1982 to 1988 period.

As noted above, it is not within this Board's jurisdiction in this appeal to determine how the Department should allocate the costs of this claim to potentially liable employers. That determination must rest with the Department's underwriting and premium rating staffs, following our remand of this claim to the Department. [12]

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 enter the following findings and conclusions:

FINDINGS OF FACT

1. On March 11, 1991, Robert K. Lenk, Sr., filed his application for benefits with the Department of Labor and Industries alleging that he had suffered hearing loss while in the employ of Western Wright Marine, Inc. On June 28, 1991, the Department issued an order which allowed the claim, granted him an award for permanent partial disability equal to 28.43% of complete hearing loss in both ears, and thereupon closed the claim. After a Protest and Request for Reconsideration filed by the claimant on August 9, 1991, raising the issue of compensability of his tinnitus condition, the Department issued an order on November 25, 1991, affirming the prior order.

On December 4, 1991, Mr. Lenk filed his Notice of Appeal with the Board of Industrial Insurance Appeals from the November 25, 1991 Department order, raising the sole issue of compensation for his tinnitus. On January 9, 1992, the Board issued an order which granted the appeal.

2. Mr. Lenk is a 53 year old man who has worked for over 30 years as a machinist. In this capacity, the claimant was exposed to high noise levels. He did not wear protective hearing devices, except on an intermittent basis. In 1988, while working as a machinist for Western Wright Marine, Inc., the claimant began to notice a constant, high pitched ringing noise in his ears. Prior to this time, he had experienced a gradual loss of hearing in both ears.

3. As a proximate and natural consequence of his many years of occupational exposure to machine noise while working as a machinist, including the years of 1988, 1989, and 1990 when he engaged in such work for Western Wright Marine, Inc., and for its successor, Western Wright Marine, the claimant developed binaural hearing loss and tinnitus. Exposure to high noise [13] levels was a distinctive condition of the claimant's employment as a machinist.

4. As of November 25, 1991, the claimant had binaural hearing loss as demonstrated by an audiogram, at the 1,500, 2,000, 3,000, and 4,000 hertz frequencies, with recovery at the 6,000 hertz level. In addition, he had tinnitus, as measured by a masking test, at the intensity of 94 decibels bilaterally at the frequency of 8,000 hertz.

5. As of November 25, 1991, the claimant had the following mild social and cognitive limitations due to his tinnitus at the 8,000 hertz frequency: frequent irritability; difficulty understanding conversations over the telephone; problems reading and following directions due to impaired concentration; and frequent substantial sleep disturbances. These limitations on his normal function were not related to his bilateral hearing loss at the lower hertz frequencies.

6. As of November 25, 1991, the claimant's hearing loss causally related to his occupational exposure was fixed and stable and resulted in permanent partial disability equal to 28.43% of complete hearing loss in both ears, as measured at the 500 through 3,000 hertz frequencies per the accepted standard under the American Medical Association Guidelines.

7. As of November 25, 1991, the claimant's tinnitus causally related to his occupational exposure was fixed and stable and resulted in permanent partial disability equal to 10% as compared to total bodily impairment.

CONCLUSIONS OF LAW

The Board of Industrial Insurance Appeals has jurisdiction over the parties and the subject matter to this appeal.
The claimant's hearing loss and tinnitus are compensable as occupational diseases within the meaning of RCW 51.08.140.
As of November 25, 1991, the claimant had a permanent partial disability due to hearing loss equal to 28.43% of complete hearing loss in both ears, within the meaning of RCW 51.32.080. [14]
As of November 25, 1991, the claimant had a permanent partial disability due to tinnitus equal to 10% as compared to total bodily impairment within the meaning of RCW 51.32.080 and WAC 296-20-220(1)(o).
The order of the Department of Labor and Industries dated November 25, 1991, which affirmed an order of the Department dated June 28, 1991, which order granted Mr. Lenk an award for permanent partial disability equal to 28.43% of complete hearing loss in both ears and closed the claim, is incorrect in part and is reversed, and the claim is remanded to the Department with directions to grant Mr. Lenk said award for permanent partial disability for hearing loss equal to 28.43% of complete hearing loss in both ears, to accept the tinnitus condition, to grant Mr. Lenk an award for permanent partial disability for tinnitus equal to 10% as compared to total bodily impairment, and thereupon to close the claim.

It is so ORDERED.

Dated this 12th day of May, 1993.

BOARD OF INDUSTRIAL INSURANCE APPEALS

/s/

S. FREDERICK FELLER Chairperson

/s/

FRANK E. FENNERTY, JR. Member

/s/

PHILLIP T. BORK Member

SPECIAL ADDITIONAL STATEMENT

I have joined my colleagues in the foregoing decision, because the evidence in the record is very clear that Mr. Lenk does have a substantial tinnitus condition in addition to his bilateral sensorineural hearing loss; that such tinnitus condition is at a high level of [15] frequency (pitch) not encompassed by his ratable hearing loss at the lower frequency levels; and that the effects on his normal functions by reason of the tinnitus are in addition and unrelated to the effect of his hearing loss.

However, two things disclosed by this record disturb me.

(1) Dr. Thomas has been the subject of at least two proceedings before the Medical Disciplinary Board based on serious unethical and improper actions connected with his medical practice, for which he is now under a probationary period imposed by that Board, involving close monitoring of details of his practice and several other sanctions imposed on him. He is, however, entitled to continue to practice during the probation, subject to compliance with all terms thereof. Suffice it to say that the ethical violations involved raise substantial doubts about Dr. Thomas' honesty, trustworthiness, and morality.

However, I accept Dr. Thomas' opinions on the existence of Mr. Lenk's tinnitus, its intensity and frequency level, the deleterious effects it has on his normal functioning, and the justification for assigning it an impairment rating separate from the bilateral hearing loss rating in this case. This acceptance is not because of any great credibility attached to Dr. Thomas, but because, on all these salient medical points, his opinions are effectively corroborated by those of Dr. Ritchie! Dr. Ritchie's only departure appears to be that since effects of tinnitus are not "measurable", that is not sufficiently objective to allow an impairment rating to be determined. We have exhaustively set forth in our decision the reasons why this is not so.

(2) The record strongly suggests that Dr. Thomas is absolutely the only otolaryngologist in this state who will rate impairment from [16] tinnitus. This is puzzling, if true, in view of the Department rule recognizing tinnitus as an acceptable condition; the AMA guidelines recognizing it as a condition which is subject to an impairment rating; the apparent general acceptance of those guidelines in evaluating hearing-related problems; and the rule in WAC 296-20-220(1)(o) setting forth that bodily disabilities not specified in RCW 51.32.080 and not included in the categories of unspecified disabilities shall be assessed for impairment in terms of "percentage of total bodily impairment".

The record reflects that there are Tinnitus Clinics at both the University of Washington and University of Oregon Medical Schools, and the masking test and its proper application for determining intensity and frequency level of tinnitus was developed at the Oregon School. With availability of these expert technical resources, it certainly appears that the entire otolaryngology community ought to come up with a greater degree of standardization in evaluation of relative severities of tinnitus, to arrive at greater consistency and fairness in administrative adjudication of all cases of occupational noise-induced tinnitus. I sincerely hope this will be an achievable goal in our state's system.

Certainly, an endless succession of adversarial cases before this Board and/or the courts -- with the suspect Dr. Thomas as the expert witness on claimant's side, and various otolaryngologists/forensic examiners called as witnesses on the defense side -- is not a sensible or efficient or cost-effective way to go. While certainly lucrative to the medical experts, and also to the attorneys representing claimants and employers, such a litigious "system" does little to advance the interests of the only two truly interested parties in the workers' compensation [17] arena, namely, workers and employers.