R. Jolley v. WCAB (Dallas Twp.) ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Jolley, :
Petitioner :
:
v. : No. 1278 C.D. 2019
: Submitted: January 17, 2020
Workers' Compensation Appeal :
Board (Dallas Township), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CROMPTON FILED: April 29, 2020
Robert Jolley (Claimant) petitions for review from an order of the
Workers’ Compensation Appeal Board (Board) that affirmed the decision of a
Workers’ Compensation Judge (WCJ) denying Claimant’s Claim Petition for
Workers’ Compensation against Dallas Township (Employer). Claimant argues that
the Board erred in affirming the WCJ’s decision that no competent medical evidence
was submitted, utilizing the formulas of the American Medical Association (AMA)
Guides to the Evaluation of Permanent Impairment (Guides), Fourth Edition, to
demonstrate Claimant’s occupational hearing loss. Claimant further contends that
the Board incorrectly placed the burden upon Claimant, not Employer, to reduce
hearing loss allegedly caused by other factors to a quantitative percentage. Upon
review, we affirm.
I. Background
From 1989 to present, Claimant has been working for Employer.
Claimant began his career as a patrol officer for Employer and is currently serving
as Employer’s Chief of Police. In 1991, Claimant was appointed as a firearms
instructor by Employer and continues to work in this capacity. On June 6, 2017,
Claimant filed a Claim Petition against Employer alleging binaural hearing
impairment greater than 10% but less than 75% - as defined by the Fourth Edition
of the Guides - as a result of his employment as a police officer and a firearms
instructor for Employer. WCJ Dec., 08/07/2018, Finding of Fact (F.F.) No. 1.
The WCJ decided against Claimant on August 7, 2018. The WCJ
concluded that Claimant failed to establish that he has compensable occupational
hearing loss calculated using the formula established in the Fourth Edition of the
Guides. Claimant appealed to the Board. WCJ Dec., 08/07/2018, Conclusions of
Law No. 2.
Claimant presented evidence from Dr. James Zeigler, Au.D., a trained
audiologist. Dr. Zeigler testified that he conducted testing on Claimant on March
22, 2017, and based on the results of this testing, he assessed that Claimant has a
severe loss of hearing at 2000 Hz and mild loss at lower frequencies. Dr. Zeigler
reduced the results to a percentage in line with the Guides, Fourth Edition, resulting
in a binaural impairment of 21%. F.F. No. 7.
Dr. Eric Plotnick, M.D., Claimant’s board-certified specialist in
otolaryngology and neck surgery, also submitted Claimant to audiometric testing
and evaluation. While Dr. Plotnick’s testing produced results consistent with Dr.
Zeigler’s, Dr. Plotnick indicated that he was unfamiliar with the process of reducing
2
these results to percentages, and therefore, he did not provide this calculation. Dr.
Plotnick further indicated that after three years of evaluation of Claimant for ringing
in his ears, Claimant’s hearing loss is multifactorial. This means that additional
contributory factors, including hyperlipidemia, hypertension and smoking, as well
as natural aging, could result in the hearing loss experienced by Claimant. F.F. No.
8.
Claimant also received a physical examination and audiometric testing
from Employer’s otolaryngology and head and neck surgery specialist, Dr. Lee
Rowe, M.D. Using the AMA Guides, Fifth Edition, Dr. Rowe calculated Claimant’s
binaural impairment as 18.4%. Dr. Rowe assessed that Claimant’s high blood
pressure, elevated fatty acids, and smoking habits contributed to Claimant’s hearing
loss. He further stated that there is no evidence that Claimant was exposed to long-
term hazardous occupational noise as he wore substantial hearing protection to
prevent hearing loss. F.F. No. 9.
The WCJ found that Claimant failed to present competent medical
evidence establishing that he suffered a compensable occupational hearing loss
under the standards of the Fourth Edition of the AMA Guides as required by the
Pennsylvania Workers’ Compensation Act (Act).1 Citing Claimant’s medical
evidence, the WCJ pointed to the fact that Dr. Plotnick did not calculate a percentage
of hearing impairment as instructed under the AMA Guides, and Dr. Rowe utilized
the Fifth Edition of the AMA Guides, not the Fourth Edition as required by the Act.
F.F. No. 10.
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4; 2501-2710.
3
The Board affirmed the decision of the WCJ. The Board concluded
that Claimant bears the burden of proof to demonstrate a compensable hearing
impairment as defined by the Act. Therefore, Claimant must prove the existence of
hearing loss of 10% or greater that is medically established to be work-related and
caused by exposure to occupational noise. This proof must be supported by evidence
under the standards of the Act. In Claimant’s case, while Dr. Zeigler utilized the
Fourth Edition of the Guides as outlined in the Act, he did not assert that the cause
of Claimant’s hearing loss was a result of the workplace, instead citing additional
conditions, including hyperlipidemia, hypertension, and smoking, as well as the
aging process that could be attributed to Claimant’s hearing loss. Board Dec.,
08/21/2019.
Claimant now petitions for review.
II. Discussion
On appeal,2 Claimant argues that the Board erred in affirming the
WCJ’s decision that no competent medical evidence was submitted that Claimant’s
proven occupational hearing loss was calculated utilizing the formulas of the Fourth
Edition of the Guides. Claimant also asserts that the Board erred in placing the
burden upon Claimant to reduce hearing loss allegedly caused by other factors
outside of employment to a quantitative percentage. Claimant contends that this is
the Employer’s burden.
2
Our review in a workers’ compensation appeal is limited to determining whether
substantial evidence supported the WCJ’s findings of fact, whether the WCJ committed an error
of law, or whether the WCJ’s decision violated constitutional rights. Grimm v. Workers’ Comp.
Appeal Bd. (Fed. Express Corp.), 176 A.3d 1045 (Pa. Cmwlth.) (en banc), appeal denied, 189
A.3d 385 (Pa. 2018).
4
A. Competence of Medical Evidence
In order to assert a successful claim for Workers’ Compensation, a
claimant has the burden of proving a causal connection between his or her alleged
disability and the injury sustained at work. Lynch v. Workmen’s Comp. Appeal Bd.
(Teledyne Vasco), 680 A.2d 847, 849 (Pa. 1996). If the injury is not attributable to
a specific incident, then the connection between the injury and the employment will
seldom be “obvious.” Id. In these cases, “unequivocal medical testimony” is
required. Id.
Claimant argues that the causal connection between his binaural
impairment and work activity for Employer is obvious. However, Claimant’s
binaural impairment cannot be attributed to a specific incident, but instead, is
allegedly the result of his police work in totality. Therefore, Claimant must present
unequivocal evidence to establish causation between his employment and his injury.
Claimant alleges that his binaural impairment is a result of 25 years of
police work for Employer. In Lynch, the claimant asserted that his injury could be
attributed to loud noises in the workplace over the course of 40 years. As a result of
the length of time, it was “incumbent” that the claimant present unequivocal
evidence to support his claim. Id. While a concrete time period has not been
established by this Court to require unequivocal evidence, Lynch suggests that
Claimant has not met his burden of establishing a causal connection between his
alleged injury and his employment.
Claimant further argues that because the causal connection between the
binaural impairment and his employment is obvious, audiology testing alone can
5
suffice to prove compensable hearing loss. Claimant cites to Lynch to support this
reasoning. However, the statements regarding audiology testing in Lynch relate
directly to prior case law, namely Pare v. Workmen’s Compensation Appeal Board
(Fred S. James & Co., Inc. of Pa.), 509 A.2d 1361 (Pa. Cmwlth. 1986).
In Pare, this Court stated that the Board erred in holding that the
testimony of an audiologist was sufficient to support a finding of hearing loss
directly related to employment. Id. While this Court upheld the decision that
sufficient evidence existed to support the claimant’s award, this Court did not uphold
the reasoning of the Board. Because the audiologist was not a medical doctor, the
claimant did not meet the burden of proof required to establish a causal connection
between the alleged injury and employment. Pare, 509 A.2d 1361.
It is necessary for an otolaryngologist to examine the claimant and
determine whether a claimant’s clinical findings are consistent with the audiologist’s
test results. Lynch, 680 A.2d 847. Additionally, this Court has held that attending
physicians are preferred as witnesses in workers’ compensation cases. Pare, 509
A.2d 1361. While Claimant argues that a causal connection is obvious and that an
audiologist’s testimony is sufficient evidence to support his claim, this Court places
weight on physician testimony for issues of hearing impairment. The testimony of
a physician may be sufficient to demonstrate a causal connection between injury and
impairment. Id.
Claimant focuses on the AMA Guides utilized by his testifying medical
professionals within his competence of medical evidence argument. Under the Act,
hearing impairment should be evaluated under the “[AMA Guides], Fourth Edition
(June 1993)” for the purposes of establishing a compensable workers’ compensation
6
claim. Sections 105.5 of the Act of February 23, 1995, P.L. 1 & 306(c)(8) of the
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 25.5 & 513(8). Claimant
argues that the medical evidence provided by Employer was not competent because
it was not presented in the percentage format outlined in the Fourth Edition of the
Guides.
Neither the WCJ nor the Board made the determination that the medical
evidence presented was not competent solely based on the use, or lack thereof, of
the Fourth Edition of the Guides. The WCJ found that the testimony of Claimant’s
audiologist alone did not serve as sufficient evidence to demonstrate a causal
connection between the alleged injury and Claimant’s employment. Because the
connection was not obvious, unequivocal evidence must be provided. Unequivocal
evidence can be understood to describe the necessary testimony of a qualified
otolaryngologist as outlined by this Court in Lynch.
While Dr. Zeigler, Claimant’s audiologist, reduced Claimant’s hearing
impairment to 21% under the AMA Guides, Fourth Edition, his testimony alone is
not sufficient to amount to unequivocal evidence. However, the evaluations of
Claimant’s hearing loss by licensed otolaryngologists also did not amount to
competent medical evidence to support a compensable injury under the Act. Dr.
Plotnick, Claimant’s otolaryngology and neck surgery expert, did not translate
Claimant’s hearing loss into the percentages outlined in the Fourth Edition of the
Guides. Dr. Plotnick described Claimant’s hearing loss as “multifactorial,” meaning
that a combination of factors, including hyperlipidemia, hypertension, smoking, and
the natural aging process could have contributed to his hearing loss. This does not
establish unequivocal evidence of a causal connection between the alleged injury
and employment.
7
Dr. Rowe, the otolaryngologist and neck surgeon provided by
Employer, determined Claimant’s hearing loss was 18.4%. However, he utilized the
Fifth Edition of the Guides rather than the Fourth Edition as outlined by the Act.
The use of a different edition of the Guides does not alone cause this medical
evidence to fail as competent. Dr. Rowe also cited “comorbid factors” outside of
employment that could have contributed to Claimant’s hearing loss, including high
blood pressure, elevated fatty acids, and his prior smoking history. Dr. Rowe further
concluded that Claimant’s hearing loss is not consistent with noise-induced hearing
loss or with hearing loss experienced by individuals with a history of occupational
hearing loss. Therefore, the WCJ did not find the medical evidence to be insufficient
solely as a result of the otolaryngologists not properly utilizing the Fourth Edition of
the Guides, but also because their testimony could not establish a causal connection
between Claimant’s hearing loss and Claimant’s employment.
B. Burden of Proof of Impairment
Claimant argues that the Board erred in placing the burden upon
Claimant to reduce hearing loss allegedly caused by other factors to a quantitative
percentage. Claimant asserts that the Act places this defensive burden on Employer.
Claimant states that his “evidence of over 25 years exposure to hazardous
occupational noise went unchallenged and was credited by the WCJ.” Pet’r’s Br. at
23.
The WCJ found that Claimant’s hearing loss was supported by the
evidence of record. F.F. No. 10. Hearing loss itself is not compensable under the
Act. Claimant must also establish causation to demonstrate the connection between
the injury and his employment.
8
Claimant cites this Court’s decision in Elliott Co. v. Workers’
Compensation Appeal Board (Shipley), indicating that when an employer submits
defenses that assign hearing loss to other factors outside of workplace exposure, then
the employer bears the burden of proof. See Elliott Co. v. Workers’ Comp. Appeal
Bd. (Shipley), 795 A.2d 480, 486 (Pa. Cmwlth. 2002). This burden of proof would
include, under Claimant’s argument, a reduction of the damage caused by outside
causes to the percentages included in the Fourth Edition of the Guides.
Claimant submitted the testimony of Dr. Plotnick as an otolaryngologist
capable of assessing the severity of Claimant’s hearing loss. Dr. Plotnick
categorized Claimant’s hearing loss as “multifactorial,” meaning that he could not
establish causation directly related to Claimant’s employment. Dr. Plotnick did not
reduce the hearing loss to a percentage per the Fourth Edition of the Guides.
Although Claimant argues that the burden is on Employer to reduce
hearing loss not attributable to Claimant’s employment to a percentage per the
Fourth Edition of the Guides, Claimant’s medical expert, Dr. Plotnick, raised the
issue. By assessing that Claimant’s hearing loss is multifactorial, the causal
connection between injury and employment was broken. While Dr. Plotnick did not
reduce the factors outside of employment to a percentage under the Fourth Edition
of the Guides, this did not shift the burden to Employer.
Under a claim for hearing loss, Claimant’s medical doctor determines
the cause of the hearing loss established by an audiogram. Dr. Plotnick could not
specifically identify which factor caused Claimant’s hearing loss. This finding by
Claimant’s medical doctor did not shift the burden of proof to Employer to reduce
the effect of causes outside of employment to a percentage under the Fourth Edition
of the Guides.
9
Employer submitted the evidence of Dr. Rowe that, similarly to the
testimony provided by Dr. Plotnick, identified Claimant’s hearing loss as
multifactorial. Dr. Rowe evaluated Claimant using the percentages in the Fifth
Edition of the Guides. However, as previously established, use of the Fourth Edition
of the Guides is required by the Act for the determination of compensable hearing
loss.
Although Elliott Co. held that the employer bears the burden of proof
when providing medical evidence as a defense, a defense is made to combat
competent medical evidence. The WCJ established that Claimant failed to provide
competent medical evidence, as the causal connection between injury and
employment was not obvious. As such, the testimony of Dr. Zeigler, by itself, was
not sufficient. The Act requires that a medical doctor evaluate Claimant to support
compensable hearing loss. Claimant did not meet this burden.
Therefore, as the burden of demonstrating a compensable hearing loss
under the Act was not met by Claimant, it is irrelevant whether the testimony of Dr.
Rowe, Employer’s otolaryngologist, was competent. The burden to quantify the
causes of Claimant’s hearing loss outside of employment is not Employer’s burden.
Claimant failed to provide competent medical evidence, instead providing testimony
that categorized Claimant’s hearing loss as multifactorial. Claimant’s medical
evidence was not competent to demonstrate a causal connection between the injury
and Claimant’s employment. Thus, Claimant failed to meet his burden on his Claim
Petition.
10
III. Conclusion
For the foregoing reasons, we affirm the Board’s order.
_____________________________
J. ANDREW CROMPTON, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Jolley, :
Petitioner :
:
v. : No. 1278 C.D. 2019
:
Workers' Compensation Appeal :
Board (Dallas Township), :
Respondent :
ORDER
AND NOW, this 29th day of April 2020, the order of the Workers’
Compensation Appeal Board is AFFIRMED.
_____________________________
J. ANDREW CROMPTON, Judge