Each year in the medico-legal treatise Occupational Injuries and Illnesses (LexisNexis), we survey court decisions involving the AMA’s Guides to the Evaluation of Permanent Impairment. Here are some interesting cases involving tinnitus and hearing loss where the AMA Guides were applied.
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AK Steel Corp. v. Johnston, 153 S.W.3d 837 (Ky. 2005) [153 S.W.3d 837]
PROCEDURAL POSTURE: Appellant employer sought review from a judgment by the Court of Appeals (Kentucky) that affirmed decisions by appellee Workers’ Compensation Board, which excluded appellee employees’ age-related hearing impairments from their income benefits under Ky. Rev. Stat. Ann. § 342.7305.
OVERVIEW: Two employees were repeatedly exposed to hazardous noise during their employment. Subsequently, they sought income benefits based upon an American Medical Association (AMA) impairment due to hearing loss. Each produced evidence that his impairment was a compensable injury. A doctor evaluated the employees and reported an eight to nine percent AMA impairment that was work-related. However, approximately 20–30 percent of their hearing loss could be explained based on the natural aging process. The state supreme court held that even if the employees suffered from age-related hearing loss, the overwhelming majority of their hearing impairment was occupational. The AMA impairment did not have to be apportioned between age-related and work-related causes absent an explicit provision in Ky. Rev. Stat. Ann. § 342.7305(4). Therefore, each employee was entitled to impairment benefits. Because one of the employees’ claims had been dismissed, it had to be remanded for an income benefit award that was based upon his full impairment.
OUTCOME: The judgment was affirmed as to one employee’s award of benefits; it was reversed and remanded for further proceedings based on the denial of the second employee’s award of benefits.
AMA GUIDES DISCUSSION: In each of the consolidated cases, a portion of the employee’s hearing impairment was attributed to the natural aging process. In one case the physician, who reported an 8 percent AMA Guides impairment, in response to a question whether any part of the impairment was due to the natural aging process, replied that approximately 25 to 30% of the employee’s hearing loss could be explained based on the natural aging process. In a deposition the doctor went on to say, however, that that an estimate that age accounted for 25% of the employee’s hearing loss did not mean that it accounted for 25% of his 8% AMA impairment because AMA impairment considered only hearing loss at the middle frequencies involved in speech. In the physician’s opinion, using the tables to apportion part of an AMA impairment to age was akin to comparing apples and oranges. Although it was not difficult to do, “It’s definitely speculative.” The supreme court observed that Chapter 11 of the Fifth Edition addressed impairments of the Ear, Nose, Throat, and Related Structures, that Section 11.2a concerned the criteria for rating impairment due to hearing loss, and that because tinnitus in the presence of a hearing impairment could impair speech discrimination, up to a 5% impairment should be added for tinnitus if the condition affected the patient’s ability to perform activities of daily living. The section also indicated that no correction should be made for presbycusis (a loss of the ability to perceive or discriminate sounds that occurs with age but varies in pattern and age of onset). The court also indicated that the Guides explained that impairment was rated without regard to its cause, that a correction for age would underestimate the true magnitude of the impairment, and that allocating an impairment to various causes was a separate matter from determining its magnitude. The court noted that Ky. Rev. Stat. Ann. § 342.7305(1) required the amount of binaural hearing impairment to be determined under the Guides and that Ky. Rev. Stat. Ann. § 342.7305 made no reference to age-related changes, which were included in AMA impairment under the Guides; whereas, Ky. Rev. Stat. Ann. § 342.7305(2) created an exception to the Guides by excluding impairment from tinnitus. Furthermore, it permitted an income benefit only in those instances where the AMA impairment due to hearing loss equaled or exceeded 8%. The court stated that even if one were to assume that the employees involved in the consolidated cases were among those individuals who suffered from age-related hearing loss as well as occupational hearing loss, the overwhelming majority of their hearing impairment was occupational. In view of Ky. Rev. Stat. Ann. § 342.7305’s explicit reliance on the Guides and Ky. Rev. Stat. Ann. § 342.7305(2)’s explicit provision to exclude tinnitus from an AMA impairment when calculating an income benefit, the court said it was convinced that the legislature would have been equally explicit if it had intended for there to be another exclusion based upon age. Each of the workers proved an AMA impairment that equaled or exceeded 8%; therefore, each was entitled to partial disability benefits that were based upon his AMA impairment.
McKamey v. Lockheed Martin Energy Sys., Inc., 2010 Tenn. LEXIS 144 (Mar. 12, 2010) [2010 Tenn. LEXIS 144]
PROCEDURAL POSTURE: Appellant employer sought review of a judgment from the Circuit Court for Anderson County (Tennessee), which awarded appellee employee permanent partial disability benefits for hearing loss in both ears.
OVERVIEW: The employer argued that the evidence preponderated against the trial court’s finding on the issue of causation. Upon review, the court found that certain statements made by the trial court such as references to professional proof that it had heard and every other hearing deposition it had ever had suggested that the trial court considered matters outside of the record, which was inappropriate. The court examined the expert medical proof including the qualifications of the experts, the circumstances of their examination, the information available to them and the evaluation of the importance of the information by other experts. The doctor favoring the employee was unable to identify any medical literature to support his contention that the employee’s work-related hearing loss continued to progress after her exposure to noise ended. The doctor favoring the employer explained his contrary opinion in greater detail, but was not asked to identify any supporting medical authority. The court found the opinion of the employer’s doctor more persuasive and that the evidence preponderated against the trial court’s ruling on the issue of causation.
OUTCOME: The court reversed the trial court’s judgment and dismissed the complaint.
AMA GUIDES DISCUSSION: An otolaryngologist conducted an independent medical evaluation (“IME”) at the request of the employee’s attorney. He administered an audiogram which showed “a high frequency hearing loss in both ears.” Based upon the history given to him by the employee, he also made a diagnosis of tinnitus. He opined that she had a hearing impairment of 13.1% of the right ear and 9.4% of the left ear due to her hearing loss. These figures combine for 10% binaural hearing loss. He assigned an additional 2% impairment for tinnitus, for a total of 12% binaural hearing impairment, which converted to 4% to the body as a whole. The doctor examined the results of audiograms administered to the employee while she worked for the employer. He opined that, beginning in 1968, those results were consistent with a noise-induced hearing loss. He testified, based upon his experience in the Air Force, that hearing loss could continue to progress, even after exposure to loud noise ended. On cross-examination, the doctor stated that the results of an audiogram taken in 1988, the last such test before the employee’s retirement, “probably” did not result in an impairment under the AMA Guides because her hearing loss at that time was limited to the higher frequencies, for which impairment was not assigned. He was unable to state whether there was any medical literature to support his assertion that noise-induced hearing loss could progress after exposure to the noise was ended.
A second otolaryngologist, conducted an IME at the request of the employer’s attorney. Like the first doctor, the second physician took a history, conducted a physical examination, and administered an audiogram. He had also reviewed “at least a portion” of the employee’s discovery deposition. On the basis of that information, the second doctor opined that the employee had a binaural hearing impairment of 1.3%. He did not assign any impairment for her tinnitus. He testified that the pattern of her hearing loss was consistent with noise exposure, but was also consistent with age-related hearing loss or inherited hearing loss. Based primarily upon the employee’s description of her noise exposure while working for the employer, the second physician opined that the exposure was not the cause of her hearing loss. He further stated that the audiograms taken prior to the employee’s retirement showed a high frequency hearing loss, but did not qualify for assessment of impairment under the AMA Guides. The court observed that the trial court credited the testimony of the first doctor and discredited the testimony of the second.
The appellate court noted that the qualifications of the doctors were relatively similar. Both were board-certified otolaryngologists, though the second doctor had been in practice somewhat longer. Both examined the employee in 2008, roughly nineteen years after her retirement. The first physician’s sole information concerning the frequency and nature of the employee’s workplace noise exposure was her statement that “the headsets were noisy.” The second physician had access to the employee’s discovery deposition, and also some personal knowledge derived from his mother’s employment as a telephone operator. Both doctors agreed that the employee’s hearing had worsened after her 1989 retirement. The first physician was unable to identify any medical literature to support his contention that the employee’s work-related hearing loss continued to progress after her exposure to noise ended. The second physician explained his contrary opinion in greater detail, but was not asked to identify any supporting medical authority. The appellate court found that, on balance, the second physician’s opinion to be more persuasive than that of the first physician. The court, therefore, concluded that the evidence preponderated against the trial court’s ruling on the issue of causation.
Aerospace Testing Alliance v. Anderson, 2008 Tenn. LEXIS 369 (2008) [2008 Tenn. LEXIS 369]
PROCEDURAL POSTURE: The Chancery Court of Coffee County, Tennessee, found that appellee employee had suffered a 65 percent vocational impairment to the body as a whole resulting from gradual hearing loss and tinnitus and also found that the employee’s last day worked was the date of his injury. The trial court awarded 260 weeks of permanent partial disability benefits. Appellant employer appealed.
OVERVIEW: The employer argued that the employee failed to prove causation of his tinnitus and that he was therefore entitled to recovery only for his hearing loss, an injury to a scheduled member. The employer also argued that the date of injury should be an earlier date, the last date on which the employee was exposed to high levels of noise injurious to his hearing. The appellate court found that the proof clearly established that the employee’s tinnitus was initially caused by the explosion he suffered while working at his job in 1995. The record demonstrated that the employee’s tinnitus worsened over time so as to constitute a gradually occurring injury. It was proper to apply the last day worked rule because there was no change in employers and where, in spite of his gradually occurring injury, the employee continued to work for the employer until the employer terminated him because of his hearing problems.
OUTCOME: The judgment was affirmed.
AMA GUIDES DISCUSSION: The court noted that paragraph 11.2a of the AMA Guides, 5th edition, page 246 sets forth the criteria for rating impairment due to hearing loss and begins as follows:
Criteria for evaluating hearing impairment are established through hearing threshold testing, which serves as the most reproducible of the measures of hearing. Therefore, estimate an impairment percentage based on the severity of the hearing loss, which accounts for changes in the ability to perform activities of daily living. Tinnitus in the presence of unilateral or bilateral hearing impairment may impair speech discrimination. Therefore, add up to 5 percent for tinnitus in the presence of measurable hearing loss if the tinnitus impacts the ability to perform activities of daily living.
The court also observed that the AMA Guides imply that the presence of tinnitus, whether or not it was caused by a condition in the workplace will increase the percentage of disability if the tinnitus impacts the ability to perform activities of daily living and that both the evaluating physician and the AMA Guides agreed that the diagnosis of tinnitus was entirely subjective as its presence or absence could not be measured. The court held that even though that there was no objective evidence of the employee’s tinnitus, he had carried his burden of proving that his tinnitus was a gradually occurring injury for which he was entitled to recover benefits in the action. The court, therefore, affirmed the trial court’s ruling.
Crowell v. TRW, Inc., 2009 Tenn. LEXIS 73 (May 8, 2009) [2009 Tenn. LEXIS 73]
PROCEDURAL POSTURE: This was a direct appeal from the Criminal Court for Wilson County.
OVERVIEW: Crowell began working for TRW, a manufacturer of automotive gears, after he graduated from high school in 1966. He left TRW to serve in the United States Navy from 1968 to 1972. Following the completion of his service, Crowell returned to TRW where he worked until his retirement in June 2007. In 2002, following a company-administered hearing test, Crowell became aware that he had sustained a high-frequency hearing loss. TRW provided him with hearing aids and began providing hearing protection to Crowell and all its other workers. During this same period, Crowell became aware of constant ringing in his ears which was later diagnosed as tinnitus. Neither condition caused Crowell to miss any work or interfered with his ability to perform his job in the “tool crib” at TRW. Crowell sought workers’ compensation benefits for both the hearing loss and tinnitus. An otolaryngologist conducted an independent medical examination at Crowell’s request and later testified by deposition that Crowell had a hearing loss at the 4,000 to 6,000 hertz range which is higher than the range of human hearing. Even though he believed that the AMA Guides “under-appreciated” hearing loss in the higher frequencies, the doctor testified that Crowell’s hearing loss did not qualify for an impairment rating. However, the physician assigned a 5% permanent impairment to Crowell’s binaural hearing for tinnitus. This converted to an impairment of 2% to the body as a whole, the maximum permissible rating for Crowell’s condition. The employer presented the testimony, by deposition, of an otologist and neuro-otologist who performed an independent medical examination at TRW’s request. After conducting tests similar to those conducted by the employee’s expert, the second specialist concluded that Crowell had tinnitus and a high-frequency hearing loss. This second expert assigned a hearing impairment of 2%, which converted to 1% to the body as a whole. He also opined that Crowell’s high frequency hearing loss resulted in a 0% impairment under the AMA Guides. The second physician opined that Crowell’s hearing loss and tinnitus would not interfere with his ability to work. Accordingly, he imposed no restrictions upon Crowell’s activities. The trial court found that Crowell had sustained hearing loss and tinnitus as a result of his employment at TRW and that the injury should be assigned to the scheduled member—hearing—and awarded a 33% permanent partial disability to that member. The appellate court held that, pursuant to Tenn. Code Ann. § 50-6-241(a)(1), the award was therefore “capped” at two and one-half times the anatomical impairment. The judgment was modified to award benefits for a 5% permanent partial disability to the body as a whole.
OUTCOME: The judgment was modified to award benefits for a 5% permanent partial disability to the body as a whole.
AMA GUIDES DISCUSSION: Crowell’s expert conceded on cross-examination that Crowell’s condition was not in the most severe category. However, he did not adopt a different rating and noted that Crowell’s condition was “quite severe” because “it was causing him insomnia and beginning to interfere with his ability to communicate with others and to distract him occasionally from his daily activities.” While the doctor placed no restrictions upon Crowell’s activities, he recommended the use of earplugs in “industrial and recreational environments.” The employer’s expert explained that the AMA Guides do not assign impairment for hearing loss at frequencies above 3,000 hertz because “our speech and language thresholds at which we use on a regular basis are 500 to 3,000 hertz, so that’s what’s felt to be … the functional hearing loss.” He also testified that the effect of high-frequency hearing loss was primarily “in the background noise and the loud noisy environment. So where a high-frequency hearing loss wouldn’t impair someone in a quiet room … it may impair them in a restaurant.” TRW contended that the trial court erred in making its award to the scheduled member rather than to the body as a whole. The difference between an award to a scheduled member and an award to the body as a whole was significant because Tenn. Code Ann. § 50-6-241(a)(1) (2008) required that awards for impairments assigned to the body as a whole be capped at two and one-half times the impairment.
The appellate court indicated that the logical conclusion from the evidence was that the effects of Crowell’s tinnitus were not just limited to enhancement of his hearing loss but extended into insomnia and loss of concentration. Crowell’s injury should, however, have been assigned to the body as a whole, rather than to the scheduled member. Pursuant to Tenn. Code Ann. § 50-6-241(a)(1), the award was therefore “capped” at two and one-half times the anatomical impairment. The judgment is modified to award benefits for a 5% permanent partial disability to the body as a whole.
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