Appeal No. 2051317, Claim No. 2015025648
Bayer Cropscience, LP, by Bradley A. Crouser, its attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. Steven Davis, Pro-se, filed a
issue on appeal is whether Mr. Davis's hearing loss is
work-related. On May 26, 2015, the claims administrator
rejected the claim. The Office of Judges reversed the claims
administrator in its April 22, 2016, Order and held the claim
compensable for hearing loss. It also modified the date of
last exposure to March 1, 2014. 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
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
Davis worked as a machine operator for more than twenty years
before transitioning to an office job in March of 2015. On
March 14, 2015, he alleged occupational hearing loss due to
exposure to loud noise from working around equipment and due
to his exposure to steam leaks and very loud pumps. P.C.
Corro, M.D., stated Mr. Davis had bilateral sensorineural
hearing loss directly attributable to or aggravated by
industrial noise exposure. The claim was denied by the claims
administrator on May 26, 2015.
Davis had a history of ear problems including bilateral
tympanic membrane perforations as a child secondary to German
measles, reconstructive surgery, ear infections,
mastoidectomy, left tympanostomy, allergic rhinitis, and
tinnitus. William C. Morgan, M.D., performed audiograms
between August 9, 1978, and January 17, 1983. Mr. Davis's
hearing was normal in the 1978 audiogram. A 1979 audiogram
showed significant hearing loss in the left ear, which
remained the same on the 1983 audiogram.
Davis was treated by Charles Crigger, M.D., on May 24, 2012,
for complaints of tinnitus. Dr. Crigger diagnosed left
subjective tinnitus, mixed hearing loss, retained foreign
body of the middle ear, and post-mastoidectomy complication.
Dr. Crigger was concerned that a tube that had been
previously placed in the left ear had been dislodged so he
performed a middle ear exploration on June 8, 2012. The
post-operative diagnosis was adhesive middle ear disease with
left tympanic membrane perforation anteriorly and inferiorly.
Dr. Crigger found the tympanic membrane perforation and
patched it. The tube had not been displaced. On August 3,
2012, Dr. Crigger diagnosed resolved left central perforation
of tympanic membrane and noted the problem with the left ear
Davis underwent audiometric testing by Randy Mabry, AuD, on
February 6, 2013. The speech reception threshold score for
the right ear was 25 and 45 for the left ear. Mr. Davis
underwent an audiometric evaluation by Laura Stout, AuD, on
July 7, 2014. The test revealed a four frequency score of 145
on the right ear and 170 on the left ear. The speech
reception threshold score for the right ear was 35 and 40 for
the left ear.
August 11, 2015, Mr. Davis underwent audiometric testing by
the plant nurse, Michelle Brock. This testing was completed
yearly. Ms. Brock's August 11, 2015, report detailed
results of a previous audiogram dated August 26, 2014, in
which the four frequency totals for the right ear was 130 and
160 for the left ear. The audiogram conducted on August 11,
2015, revealed the four frequency totals for the right ear
was 150 and for left ear was 180.
Davis testified before the Office of Judges on October 15,
2015. He said he had been employed with Bayer CropScience for
twenty-five years and that he had always worn hearing
protection including ear muffs and ear plugs. He switched
from working around the machinery to a silent, or office job,
in March of 2014, which is when it first occurred to him that
he had hearing loss. He had started noticing a change in his
hearing about three years prior, but really noticed it when
he was not able to hear well at meetings and moved closer to
the person speaking in order to hear.
April 22, 2016, the Office of Judges reversed the claims
administrator's May 26, 2015, denial of the claim, and
held the claim compensable for hearing loss and modified the
date of last exposure to March 1, 2014. The Office of Judges
relied on Mr. Davis's Report of Occupational Hearing Loss
and found that a preponderance of the evidence showed that he
was exposed to hazardous levels of noise in the course of his
employment beginning in 1990 and ending in March of 2014. The
Office of Judges also found that Mr. Davis had a significant
non-compensable conductive component to his hearing loss. It
determined that Bayer CropScience failed to prove Mr. Davis
had a significant sensorineural hearing loss that pre-existed
his employment with them. Mr. Davis did not have
sensorineural hearing loss when evaluated by Dr. Morgan on
January 17, 1983. The Office of Judges relied on the bone
scores of that audiogram to show that Mr. Davis's
sensorineural hearing was essentially normal. Therefore, it
found Mr. Davis did not have a sensorineural hearing loss in
1983, but he did have a significant conductive hearing loss
of the left ear.
Office of Judges determined the audiograms performed from
August 8, 2000, through August 25, 2008, and the audiometric
testing performed by the employer from September 15, 2006,
through August 26, 2014, did not include bone conduction
scores. Therefore, they were deemed to be less reliable in
determining Mr. Davis's sensorineural hearing loss. It
found the audiograms of Dr. Stout on July 7, 2014, and Dr.
Mabry on February 6, 2013, were reliable as both of these
practitioners performed bone conduction testing. The Office
of Judges determined the comparison of the results of the
testing of Dr. Morgan from 1983 that showed no significant
sensorineural hearing loss with those of Drs. Stout and Mabry
which showed three of four bone conduction totals at 120 or
above, constituted preponderant evidence of the existence of
a noise-induced hearing loss resulting from Mr. Davis's
work at Bayer CropScience. The Office of Judges opined Dr.
Corro's opinion supported a finding of hearing loss.
August 17, 2016, the Board of Review adopted the findings of
fact and conclusions of law of the Office of Judges and
affirmed its Order. After review, we agree with the Office of
Judges. The Office of Judges relied on the audiogram results
of Drs. Stout and Mabry, which showed Mr. Davis had sustained
sensorineural hearing loss. It pointed out that the Michelle
Brock, the plant nurse who performed the testing, did not
have a Certificate of Clinical Competence in Audiology. The
Office of Judges found the reports of Drs. Stout and Mabry to
be more reliable, as they included a bone conduction study.
While Mr. Davis may have had problems with his ears over the
years, those problems did not cause his hearing loss.
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 ...