CHARLESTON — The West Virginia Supreme Court agreed with the Workers' Compensation Office of Judges that a physician correctly following the requirements when determining a man's noise-induced hearing loss.
Justices Beth Walker, Tim Armstead and Evan Jenkins concurred, while Justices John Hutchison and Bill Wooton dissented.
"After review, we agree with the reasoning and conclusions of the Office of Judges as affirmed by the Board of Review. Rule 20 specifies the hearing loss pattern seen in occupational noise-induced hearing loss cases," the Feb. 1 decision stated. "Mr. Bosley’s hearing loss pattern, however, is not consistent with noise-induced hearing loss. Mr. Bosley did have several years of exposure to heavy equipment noise; therefore, a portion of his hearing loss is likely due to noise exposure. Dr. Wetmore’s finding of 12.68% impairment is reliable."
Jeffrey Bosley was employed by Murray American Energy and developed hearing loss during his employment. An Employees' Report of Occupational Hearing Loss from Dec. 17, 2018, indicated that he needed to be tested and on Jan. 14, 2019, an audiogram found he had 24.27% occupationally induced hearing loss.
Bosley then saw Dr. Stephen Wetmore on March 18, 2019, who apportioned half of the hearing loss for causes other than noise and recommended 12.68% impairment and he was granted 12.68% permanent partial disability.
"The Office of Judges concluded that Dr. Wetmore correctly followed the Rule 20 requirements in arriving at his finding of 12.68% noise-induced hearing loss," the decision states.
Hutchison and Wooten disagreed with the majority's conclusion.
"I dissent to the majority’s resolution of this case," Hutchison stated in his dissent. "I would have set this case for oral argument to thoroughly address the error alleged in this appeal. Having reviewed the parties’ briefs and the issues raised therein, I believe a formal opinion of this Court was warranted—not a memorandum decision."
Wooton wrote that he would have placed the matter on the Rule 20 argument docket for close examination.
"Here, Dr. Wetmore identified no other causes for petitioner’s hearing loss, yet reduced petitioner’s impairment by half," Wooton wrote. "The Rule does not allow for apportionment without identifying non-occupational causes and certainly, where none is identified, any apportionment is presumptively arbitrary as it has no foundation in fact or law."
West Virginia Supreme Court of Appeals case number: 20-0682
