Martin, Marcus v. CECO DOOR PRODUCTS , 2023 TN WC 87 ( 2023 )

FILED
Nov 30, 2023
11:59 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT JACKSON
MARCUS MARTIN, ) Docket No. 2022-07-0684
Employee, )
v. )
CECO DOOR PRODUCTS, ) State File No. 36535-2021
Employer, )
And )
TRAVELERS INDEMNITY CO., ) Judge Amber E. Luttrell
Carrier. )
COMPENSATION ORDER
The Court held a compensation hearing on Mr. Martin’s request for workers’
compensation benefits for hearing loss. At issue is the admissibility of Dr. Karl
Studtmann’s thirty-three percent impairment rating and the extent of Mr. Martin’s
permanent partial disability. For the reasons below, the Court excludes the thirty-three
percent rating and holds that Mr. Martin is entitled to two percent permanent partial
disability.
Claim History
Mr. Martin, a forty-two-year employee of Ceco, alleged hearing loss in both ears.
He described Ceco as a “very loud environment” and stated he first noticed difficulty
understanding people four to five years ago. Ceco tested his hearing in 2021 and told him
he had hearing loss. Ceco offered Mr. Martin a panel of physicians, from which he selected
Dr. Mitchell Schwaber.
Dr. Schwaber testified that Mr. Martin gave a history of difficulty understanding
conversational speech, particularly with background noise. Mr. Martin told him it seemed
to be worsening. He also reported minor ringing in his ears. Dr. Schwaber ordered an
audiogram and diagnosed noise-induced bilateral sensorineural hearing loss. He
recommended Mr. Martin wear hearing protection, undergo exams every two years, and
obtain/replace his hearing aids every four years. Dr. Schwaber placed him at maximum
medical improvement on November 8, 2021, and assigned a two-percent permanent
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impairment based on the sixth edition of the AMA Guides. To calculate the impairment
under the Guides, he averaged Mr. Martin’s audiogram results at the 500, 1000, 2000, and
3000 frequency levels and inserted the figure into a formula that yielded a binaural
impairment, which he converted to a two-percent impairment rating.
Dr. Schwaber testified that his rating is consistent with the directives of the Guides.
The Guides method is “relied on in the Tennessee medical community . . . and in medical
communities outside of Tennessee.” He further stated that, based on his research in the
ENT medical field, the Guides method is “used and relied on by the majority of other
physicians to assess permanent impairment for hearing loss.”
Mr. Martin saw Dr. Karl Studtmann for an independent medical evaluation. Dr.
Studtmann obtained an audiogram and stated the results were “very similar” to the one
ordered by Dr. Schwaber. The tests showed a “down-sloping high-frequency sensorineural
or nerve type hearing loss” suggestive of noise-induced hearing loss. Dr. Studtmann
testified that under the Guides, Mr. Martin’s impairment rating was zero.
Dr. Studtmann disagreed with the Guides methodology for assigning hearing
impairment, since the sixth edition only goes through 3000 hertz and the majority of Mr.
Martin’s hearing loss was above that level. He stated that “current research suggests a more
accurate way of assessing impairment from high-frequency sensorineural hearing loss is to
take the most severe hearing level and use that as a flat line hearing loss.” Thus, he used
this method to assign a thirty-three percent impairment.
He explained that he took Mr. Martin’s audiogram results for the lower levels and
altered them to Mr. Martin’s most severe hearing loss level on the audiogram to create a
flat line. He acknowledged that the actual results for the lower-level frequencies suggest a
lesser degree of hearing loss than his method of “bringing them up to the most severe
level.”
Dr. Studtmann testified that his method is supported by a peer-reviewed article
authored by two audiologists, “Hornsby and Ricketts,” who discussed functional
impairment caused by high-frequency loss. He also generally referenced nineteen
published studies that he contended support his method.
He stated that he has not published any articles regarding his method for assigning
impairment in workers’ compensation cases and does not know if anyone has published
this method. He did not know if his method has been peer-reviewed and could not name
another medical group or association that uses his method to assign hearing loss
impairment. He further testified that the American Academy of Otolaryngology has a
formula that uses frequencies that do not exceed the 3000-hertz level for measuring
impairment, which is similar to the Guides method.
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Dr. Schwaber disagreed with Dr. Studtmann’s methodology for several reasons. He
stated that Dr. Studtmann’s rating method is “not used or accepted by the medical
community in any way”; his method has not been tested or peer reviewed for validity as a
method for determining impairment; and, his method “ignores the fact that there is
significant hearing that occurs in the lower frequencies between 1- and 2000 hertz for
speech.”
Dr. Schwaber also testified that Dr. Studtmann “assigns an altered frequency
response or value for those frequencies, which may have been functioning pretty normally
to come up with his formulas, which is not done anywhere else.” In other words, he said
that Dr. Studtmann “manipulates those frequency results to get his impairment rating.” This
“seriously overinflates the amount of impairment.”
Dr. Schwaber cited a recent Harvard article, which shows the majority of human
conversational speech is between the 1000 to 2000 level. Mr. Martin’s testing from the
1000- to 2000-hertz level was essentially normal. He has moderate to severe loss in the
3000 level. Lastly, Dr. Schwaber pointed out that, under the Guides, the maximum
impairment rating for a completely deaf person is thirty-five percent. Dr. Schwaber stated
that he did not find Mr. Martin to be near completely deaf as his thirty-three percent rating
suggests.
As to the articles Dr. Studtmann relied on, Dr. Schwaber testified that the Hornsby
and Ricketts article addressed how hearing aids should be programmed and did not discuss
assessing permanent impairment for hearing loss. The article was not peer-reviewed for
any particular methodology for assessing hearing loss impairment. Dr. Schwaber testified
that no medical organization has adopted any methodology in the Hornsby and Ricketts
article for rating hearing loss impairment. He also read the other nineteen articles and stated
they do not support Dr. Studtmann’s method or suggest that it has been accepted in the
medical community.
Dr. Schwaber agreed that Mr. Martin’s greatest hearing loss was at the 3000 range
and higher frequencies, which means he has difficulty hearing certain sounds or
understanding some noises or sounds. He also acknowledged that the AMA Guides
underestimates a patient’s disability, but it covered most of Mr. Martin’s speech
frequencies. However, he maintained that Dr. Studtmann’s method “seriously overrates”
the hearing loss to arrive at an impairment rating.
Mr. Martin testified he still works for Ceco as a lead man and is able to direct other
employees. He has difficulty understanding what people are saying to him. Sometimes he
cannot understand coworkers over the radio and asks them to repeat themselves. Outside
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of work, he struggles with hearing his granddaughters and turns up the television volume.
He has not seen a doctor for hearing aids.1
Findings of Fact and Conclusions of Law
Mr. Martin must prove all elements of his claim by a preponderance of the evidence.
Tenn. Code Ann. § 50-6-239(c)(6) (2023).
Motion to Exclude
At the hearing, the parties argued Ceco’s motion to exclude Dr. Studtmann’s thirty-
three percent rating under Tennessee Code Annotated section 50-6-204(k)(2)(C). It states,
No impairment rating . . . shall be . . . admissible into evidence at the trial of
a workers’ compensation claim unless the impairment rating is based on the
applicable edition of the AMA Guides or, in cases not covered by the AMA
Guides, an impairment rating by any appropriate method used and accepted
by the medical community.
(Emphasis added).
Based on the medical testimony, Ceco argued that Dr. Studtmann’s thirty-three
percent rating is inadmissible because the Guides includes a method of determining
impairment for hearing loss up to 3000 hertz, which Dr. Schwaber testified covers most
speech frequencies. For losses in higher frequencies not covered by the Guides, Ceco
contended that the proof showed Dr. Studtmann’s method is not appropriate, or accepted
or used by the medical community. The Court agrees.
Dr. Schwaber testified that Mr. Martin’s greatest hearing loss was above 3000 hertz
and acknowledged that the Guides method slightly underestimates the impairment.
However, he cited a recent Harvard article that showed the 2000 level is very important in
conversational speech and that most speech frequencies are between the 1000- and 4000-
hertz level, which the Guides covers.
As for Dr. Studtmann’s method, Dr. Schwaber persuasively testified that it is
inappropriate, in part, because it “seriously overestimates the impairment.” Dr. Studtmann
took Mr. Martin’s audiogram results at the lower levels and artificially altered the numbers
to equal his worst results at the 8000 level to create the “flat line.” In other words, Mr.
Martin’s actual audiogram levels in the lower frequencies, where most conversational
speech occurs, were not considered in rating his hearing loss.
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As to the other lay witnesses, Mrs. Martin testified consistently with Mr. Martin regarding his symptoms.
She added that he was unable to hear a neighbor speaking directly to him at a community picnic. Scott
Martin, Ceco’s director of environmental health and safety, testified that Mr. Martin is able to perform his
job without any accommodations and has reported no problems.
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The totality of the evidence does not show that Dr. Studtmann’s method is accepted
or used by the medical community. Dr. Studtmann primarily referenced the Hornsby and
Ricketts article and nineteen others, which he contended support the idea that higher
frequency loss affects understanding of speech.
Dr. Schwaber reviewed all of these articles and testified unequivocally that they do
not support his method. In fact, he and Dr. Studtmann agreed that the Hornsby and Ricketts
article did not address assigning impairment ratings for hearing loss. As for the other
articles, Dr. Schwaber stated they do not mention Dr. Studtmann’s rating method or say
that it has been used or accepted in the medical community.
Further, Dr. Studtmann acknowledged that he has not published his rating method,
it has not been tested or peer reviewed, and he knows of no other physician or association
that uses it.2
The Court finds that Dr. Studtmann’s flat-line rating method is neither appropriate
nor accepted or used by the medical community. Therefore, his thirty-three percent rating
is not admissible.
Permanent partial disability
While perhaps imperfect, the Guides offers a method for assigning impairment for
hearing loss for most conversational speech. Both Drs. Schwaber and Studtmann assigned
ratings under the Guides. Dr. Schwaber assigned a two percent rating; Dr. Studtmann
assessed zero percent. As the authorized treating physician, Dr. Schwaber’s rating is
rebuttably presumed correct. Tenn. Code Ann. § 50-6-204(k)(7).
Based on a two percent rating, Mr. Martin is entitled to an original award of nine
weeks at the compensation rate of $994.00, or $8,946.00. Mr. Martin has returned to work
for Ceco and is not entitled to any increased benefits.
IT IS, THEREFORE, ORDERED as follows:
1. Ceco Door shall pay Mr. Martin a lump-sum award of permanent partial disability
benefits equal to two percent permanent partial disability for nine weeks, or
$8,946.00.
2. Mr. Martin’s attorney is entitled to a twenty percent fee of the award under
Tennessee Code Annotated section 50-6-226(a)(1). Mr. Barnes may also move the
Court for an award of discretionary costs unless the parties reach an agreement on
2
While this issue can be decided on the factual proof alone, notably, recent caselaw casts doubt on the
method’s use and acceptance in the medical community. See Garner v. Goodyear Tire & Rubber Co., No.
W2020-00280-SC-R3-WC, 2021 Tenn. LEXIS 63, at *19 (Tenn. Workers’ Comp. Panel Mar. 19, 2021)
(The Tennessee Supreme Court has not “formally and universally adopted the flat line method for all high
frequency hearing loss cases.”).
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the issue.
3. Ceco Door shall pay future medical benefits under Tennessee Code Annotated
section 50-6-204(a)(1)(A).
4. The $150.00 filing fee is taxed to Ceco Door, to be paid to the Court Clerk under
Tennessee Compilation Rules and Regulations 0800-02-21-.06 (February 2022)
within five business days, and for which execution might issue if necessary.
5. Ceco Door shall prepare and submit to the Court Clerk a Statistical Data Form (SD2)
within ten business days of this order becoming final.
6. Unless appealed, this order shall become final thirty days after issuance.
ENTERED November 30, 2023.
_____________________________________
JUDGE AMBER E. LUTTRELL
Court of Workers’ Compensation Claims
Appendix
Exhibits
1. Dr. Schwaber’s deposition
2. Dr. Studtmann’s deposition
3. Panel of Physicians
Technical Record
1. Petition for Benefit Determination
2. Dispute Certification Notice and additional issues
3. Request for Scheduling Hearing
4. Scheduling Order
5. Transfer Order
6. Employer’s Motion to Exclude Evidence of Improper Rating
7. Employee’s Response to Employer’s Motion
8. Employer’s Reply to Employee’s Response
9. Pre-Compensation Hearing Statement
10. Employee’s Witness and Exhibit List
11. Employer’s Pre-Trial Brief
12. Employer’s Witness list
13. Employer’s Exhibit list
14. Post-Discovery Dispute Certification Notice
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15. Caselaw cited by parties
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on November 30, 2023.
Name Email Service sent to:
Spencer Barnes, Employee’s Attorney X spence@morrisonandbarnes.com
kaylie@morrisonandbarnes.com
J.V. Thompson, Employer’s Attorney X jthompson@raineykizer.com
ahollingsworth@raineykizer.com
______________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
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NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
Employer
Notice is given that ____________________________________________________________________
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ Other Order filed on_____________________
issued by Judge _________________________________________________________________________.
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
________________________________________________________________________________________
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________________________________________________________________________________________
________________________________________________________________________________________
Parties
Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee
Address: ________________________________________________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________
Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, _____________________________________________________________, certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.
______________________________________________
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082