CHARLESTON – The West Virginia Supreme Court of Appeals has ruled that a permanent partial disability of 6.77 percent was rightfully awarded to a man with hearing loss.

SWVA Inc. appealed the decision of the West Virginia Workers’ Compensation Board of Review.

Originally, the claims administrator granted a 3.85 percent permanent partial disability award for hearing loss on March 15, 2016, to Michael I. Payne, according to the Feb. 23 memorandum decision.

The Office of Judges reversed the decision in its March 20, 2017, order and granted a 6.77 percent permanent partial disability award. The order was affirmed by the Board of Review on Aug. 23.

Payne developed hearing loss as a result of occupational noise exposure.

A Dec. 19, 2013, employee’s and physician’s report of occupational hearing loss indicates 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.

Dr. Joseph Touma completed the physician’s section in an attached letter and 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 percent on the left and 80 percent on the right.

Touma noted that Payne reported a history of progressive hearing loss, difficulty hearing in crowds and tinnitus. Touma diagnosed bilateral sensorineural hearing loss directly related to occupational noise exposure and found no preexisting condition which could contribute to the high frequency hearing loss. 

Touma then assessed 6.77 percent impairment and recommended hearing aids.

Dr. Thomas Jung, an otolaryngologist, performed an independent medical evaluation on June 29, 2014, and 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.

Payne had 100 percent speech discrimination and Jung opined that he had occupational hearing loss but that he also had nonoccupational factors that contributed to the hearing loss since  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.

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 and his total recommendation was 3.85 percent impairment.

In 2016, another otolaryngologist performed another independent medical evaluation and agreed with the adjustment technique and the impairment rating of 3.85 percent because there are other significant issues contributing to the hearing loss.

The claims administrator granted a 3.85 percent 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 percent permanent partial disability award.

“It found that Dr. Touma found 6.77% impairment due to occupational hearing loss, which included 1% for speech discrimination,” the decision states. “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 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 decision states. “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 Jung nor Phillips specifically mentioned age as the cause of 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 Aug. 23.

“After review, we agree with the reasoning and conclusions of the Office of Judges as affirmed by the Board of Review,” the decision states. “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.”

The Supreme Court found 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 affirmed,” the decision states.

W.Va. Supreme Court of Appeals case number: 17-0839

W.Va. Supreme Court of Appeals case number: 17-0839

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