Appeal No. 2051912) (Claim No. 2014030081)
SWVA, Inc., by Steven K. Wellman, its attorney, appeals the
decision of the West Virginia Workers' Compensation Board
issue on appeal is permanent partial disability. The claims
administrator granted a 3.85% permanent partial disability
award for hearing loss on March 15, 2016. The Office of
Judges reversed the decision in its March 20, 2017, Order and
granted a 6.77% permanent partial disability award. The Order
was affirmed by the Board of Review on August 23, 2017. 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
Payne, a laborer, developed hearing loss as a result of
occupational noise exposure. A December 19, 2013,
employee's and physician's report of occupational
hearing loss indicates Mr. Payne was last exposed on July 16,
2012. Audiometric testing was completed by a certified
audiologist and showed a four frequency air score of 210 on
the right and 185 on the left. Joseph Touma, M.D., completed
the physician's section in an attached letter. He
adjusted the four frequency air scores to 175 on the right
and 160 on the left due to the fact that hearing loss in the
range of 250-500 hertz is not noise-induced. He noted that
the four frequency pattern was even and in a classic downward
sloping pattern. Air speech reception threshold at
eighty-five decibels was 96% on the left and 80% on the
right. Dr. Touma noted that Mr. Payne reported a history of
progressive hearing loss, difficulty hearing in crowds, and
tinnitus. Dr. Touma diagnosed bilateral sensorineural hearing
loss directly related to occupational noise exposure. He
found no preexisting condition which could contribute to the
high frequency hearing loss. He assessed 6.77% impairment and
recommended hearing aids.
Jung, M.D., otolaryngologist, performed an independent
medical evaluation on June 29, 2014. He noted audiometric
testing showed a four frequency pattern that was symmetrical
and in a classic downward sloping pattern. The scores were
185 on the right and 170 on the left. Mr. Payne had 100%
speech discrimination. Dr. Jung opined that Mr. Payne had
occupational hearing loss but that he also had
nonoccupational factors that contributed to the hearing loss.
Mr. Payne was a hunter, used power tools, had a family
history of hearing loss, was diabetic, had high cholesterol
and smoked cigarettes, all of which can contribute to hearing
loss. Dr. Jung used the Department of Labor's
Occupational Noise Exposure Standard to adjust the four
frequency scores to 138 on the right and 123 on the left. His
total recommendation was 3.85% impairment.
January 28, 2016, David Phillips, M.D., otolaryngologist,
performed an independent medical evaluation in which he noted
a symmetrical four frequency pattern in a classic downward
sloping pattern. The four frequency scores were 195 on the
right and 185 on the left. Speech discrimination was 60% on
the right and 80% on the left. Dr. Phillips noted a history
of exposure to industrial noise and a history of hearing loss
for ten to twelve years. Dr. Phillips diagnosed severe
sensorineural hearing loss without recovery above 4, 000
hertz. Dr. Phillips concluded that nonoccupational factors
contributed to the hearing loss. Those factors were hunting,
using woodworking tools without hearing protection, a family
history of hearing loss, diabetes, and high cholesterol.
Also, Mr. Payne's hearing loss had progressed since his
date of last exposure. Dr. Phillips found that it was
difficult to apportion the current level of hearing loss for
nonoccupational and medical factors. He opined that Dr.
Jung's adjustment of the four frequency totals using an
age-correction is a valid and non-biased way of adjusting the
rating for nonoccupational factors. Dr. Phillips agreed with
the adjustment technique and the impairment rating of 3.85%
because there are other significant issues contributing to
the hearing loss.
claims administrator granted a 3.85% permanent partial
disability award on March 15, 2016. The Office of Judges
reversed the decision in its March 20, 2017, Order and
granted a 6.77% permanent partial disability award. It found
that Dr. Touma found 6.77% impairment due to occupational
hearing loss, which included 1% for speech discrimination.
Dr. Touma factored out low frequency hearing loss, but
otherwise did not apportion for non-occupational causes. The
Office of Judges found that the evidence submitted indicates
Mr. Payne was exposed to occupational noise and was
reasonable to assume his hearing loss is entirely due to that
exposure. The Office of Judges found Drs. Jung and Phillips
also found hearing impairment; however, they apportioned for
nonoccupational factors. The Office of Judges concluded that
their reports were flawed. First, neither report states Mr.
Payne's total hearing loss or the amount of impairment
apportioned. Second, the West Virginia workers'
compensation guidelines for rating hearing loss does not
include standards developed by the Department of Labor. The
Office of Judges found that even if age-correction based on a
Department of Labor's Occupational Noise Exposure
Standard is an acceptable form of apportioning impairment,
neither Dr. Jung nor Dr. Phillips specifically mentioned age
as the cause of Mr. Payne's alleged nonoccupational
hearing loss. The Board of Review adopted the findings of
fact and conclusions of law of the Office of Judges and
affirmed its Order on August 23, 2017.
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. Dr.
Touma's report is the most reliable of record as the
reports of Drs. Jung and Phillips contain significant errors.
Most specifically, they used age-related standards to
apportion their impairment findings but did not mention age
as a nonoccupational hearing loss factor.
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 IN BY: Chief Justice Margaret L. Workman, Justice
Robin J. Davis, Justice Allen H. Loughry II, Justice
Elizabeth D. Walker
DISSENTING: Justice ...