Appeal No. 2051154) (Claim No. 2011036937)
Gary Duffield, by Patrick K. Maroney, his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Kokosing Construction Company, Inc., by
James W. Heslep, its attorney, filed a timely response.
issue on appeal is the amount of permanent partial disability
Mr. Duffield is entitled to for occupational hearing loss.
The claims administrator granted a 5.68% permanent partial
disability award for hearing loss and closed the claim for
permanent partial disability on March 16, 2015. The Office of
Judges affirmed the decision in its February 16, 2016, Order.
The Order was affirmed by the Board of Review on August 17,
2016. The Court has carefully reviewed the records, written
arguments, and appendices contained in the briefs, and the
case is mature for consideration.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
is appropriate under Rule 21 of the Rules of Appellate
Duffield, a heavy equipment operator, filed a report of
occupational hearing loss on April 12, 2011. He worked for
Kokosing Construction Company, Inc., from January of 2007
through July of 2008 as a heavy equipment operator. Attached
was an audiogram signed by Charles Crigger, M.D., on April
12, 2011. It noted moderate to severe sensorineural hearing
loss on the right and mild to severe hearing loss on the
left. Dr. Crigger opined that the hearing loss was directly
attributable to or perceptibly aggravated by industrial noise
exposure in the course of his employment. He assessed 8.8%
impairment. Mr. Duffield was first diagnosed on April 12,
2011. In a May 3, 2011, treatment note, Dr. Crigger diagnosed
noise induced hearing loss, mild to severe sensorineural
hearing loss, bilaterally. He recommended 8.8% impairment per
Appendix C in 1986 revisions of the West Virginia
Workers' Compensation Fund procedure for calculating
whole man impairment for hearing loss.
February 11, 2015, independent medical evaluation, David
Phillips, M.D., noted that Mr. Duffield reported hearing loss
over several years. He was retired with a date of last
exposure of July 23, 2008. He had a thirty-eight year history
of exposure to heavy equipment. Dr. Phillips found mild
sloping to severe bilateral high frequency sensorineural
hearing loss with significant low frequency loss in the
500-2000 hertz range. Speech discrimination was 92% in the
right ear and 88% in the left. Dr. Phillips noted that Dr.
Crigger calculated an overall, adjusted impairment rating of
8.8%. Dr. Phillips stated that there is discrepancy in the
test-retest reliability, as Mr. Duffield has four frequency
totals in air of 215 decibels in the right ear and 220 in the
left, in 2011. That compares to four frequency air condition
currently of 170 in both ears. Therefore, current thresholds
are significantly better than those in 2011 and are beyond
the fifteen decibel range of test-retest reliability. Dr.
Phillips stated that Mr. Duffield does have an occupational
history sufficient to cause occupational noise induced
hearing loss. He also has significant past medical history of
diabetes, hypertension, and elevated cholesterol, all of
which may contribute to hearing loss. He stated that this is
demonstrated in the lower frequency ranges and when
performing an impairment rating he would use their current
testing and adjust the 500 and 1000 hertz threshold in both
ears to twenty decibels. That adjustment results in 135
decibel four frequency for the right ear and 140 for the
left. This equates to 5.68% impairment.
28, 2015, audiology report from Randy Mabry, M.D., indicates
that otoacoustic emissions test results absent emissions at
test frequencies and that pure tone testing is not consistent
with the last test performed on January 20, 2015. The speech
reception threshold and pure tone average were not in
agreement. In a May 28, 2015, review report, P.C. Corro,
M.D., stated that based on a review of the record, Mr.
Duffield's current audiogram performed by Dr. Mabry shows
only a fair test reliability because the speech reception
threshold and pure tone average are not in agreement. Prior
to that, on April 12, 2011, an audiogram was performed by Dr.
Phillips's office and there is a marked difference in the
pure tone. Dr. Corro concurred with Dr. Phillips's
February 11, 2015, evaluation for adjusting the low frequency
as this does not suggest a noise induced type of hearing loss
in the low frequency. He recommended a hearing aid evaluation
and fitting for a trial.
March 16, 2015, the claims administrator granted a 5.68%
permanent partial disability award for hearing loss and
closed the claim for permanent partial disability. The Office
of Judges affirmed the decision on February 16, 2016. It
found that Dr. Phillips, who evaluated Mr. Duffield in 2015,
determined that he has 5.68% hearing loss. Dr. Corro
concurred. Dr. Crigger, in 2011, found 8.8% impairment.
Sensorineural hearing loss does not improve with time which
insinuates that Mr. Duffield has mixed etiologies. The Office
of Judges noted that Dr. Crigger did not have as much
information as Drs. Phillips and Corro upon which to base his
determination. Accordingly, the Office of Judges concluded
that Dr. Phillip's findings were the most reliable of
record. The Board of Review adopted the findings of fact and
conclusions of law of the Office of Judges and affirmed its
Order on August 17, 2016.
review, we agree with the reasoning of the Office of Judges
and conclusions of the Board of Review. Dr. Phillips's
independent medical evaluation was credible and reliable.
Neither the Office of Judges nor Board of Review erred by
relying on his opinion.
foregoing reasons, we find that the decision of the Board of
Review is not in clear violation of any constitutional or
statutory provision, nor is it clearly the result of
erroneous conclusions of law, nor is it based upon a material
misstatement or mischaracterization of the evidentiary
record. Therefore, the decision of the Board of Review is
CONCURRED: Chief Justice Allen H. Loughry II Justice Robin J.
Davis Justice Margaret L. Workman Justice Menis E. ...