Bright v. American Greetings Corp.

OPINION OF THE COURT

The claimant sustained a work-related injury to his lower back on June 10, 1997, but he continued to work until June 1, 1998. Shortly thereafter, he filed consolidated workers’ compensation claims for the back injury and for a hearing loss that was allegedly caused by an exposure to hazardous noise at work. The results of a university evaluation that were introduced into evidence over the employer’s objection included testing that revealed an AMA impairment and an audiologist’s opinion that the impairment was caused by work-related noise exposure. Also introduced was evidence of an AMA impairment to the back that was apportioned equally to the injury, itself, and to the arousal of dormant, pre-existing degenerative changes.

After the Administrative Law Judge (ALJ) rejected the university evaluator’s opinion concerning the cause of the hearing impairment and determined that half of the claimant’s back impairment must be excluded because it was due to the natural aging process, the claimant appealed. Although the Workers’ Compensation Board (Board) affirmed, in. part, a majority reversed with regard to the weight to be afforded the university evaluator’s testimony, and the entire Board reversed with regard to the exclusion for the natural aging process. Applying our then-recent decision in Magic Coal Co. v. Fox, Ky., 19 S.W.3d 88 (2000), the Court of Appeals reversed on the first issue and affirmed on the second. We affirm.

The claimant alleged that he sustained daily exposure to loud noise for 18 years, while working for the defendant-employer. He testified that he had noticed a significant worsening of his hearing during the last two years that he worked, that he presently had difficulty understanding normal conversation, and that he would be unable to communicate with others in the course of performing a job.

Dr. Windmill, an audiologist and the appointed university evaluator, performed audiometrie testing. The claimant informed him that he had worked for the defendant-employer for 22 years as a bail-er helper and that he was near the machine for four to eight hours each day. Dr. Windmill noted that the claimant “was exposed to loud noises from the bailer and the cutter” and that he did not wear hearing protection at any time. He determined that the claimant suffered from a 24% AMA hearing impairment and that the pattern of hearing loss was compatible with hazardous noise exposure in the workplace. In his opinion, the claimant’s hearing loss was work-related.

The evidence concerning the level of noise exposure was conflicting, including the claimant’s own testimony. Although he told Dr. Windmill that his working conditions were noisy, prior to filing the claim he had told his physicians that they were not noisy. The employer’s human resources administrator testified that the claimant had, indeed, been a bailer helper but asserted that he was not exposed to loud noise in that capacity. He indicated that dosimeters (devices that record the time-weighted average of noise levels) were presently worn by workers and demonstrated that there was no excessive noise in the plant. This testing was performed after the claimant no longer worked at the plant. However, the former human resources administrator also testified and indicated that the company had never had a hearing loss claim in the 30 years that he had worked there.

The testimony of various physicians concerning the extent to which work for the defendant-employer contributed to the impairment also was conflicting. There was evidence that at least some of the impairment was age-related, and there was evidence that the claimant had suffered from an ear infection and hearing loss in 1993.

Rejecting Dr. Windmill’s opinion that the hearing loss was due to the claimant’s work for the defendant-employer, the ALJ pointed to the inconsistent histories of noise exposure and to the claimant’s longstanding history of nonwork-related hearing loss before determining that he had failed to demonstrate an exposure to hazardous noise in the subject employment. The ALJ also noted evidence of his exposure to loud noises in the logging industry.

In Magic Coal Co. v. Fox, supra, we determined that KRS 342.315(2) creates a rebuttable presumption that is governed by KRE 301 and, therefore, does not shift the burden of persuasion. We explained that the provision does not restrict the ALJ’s authority to weigh conflicting medical evidence and to choose which evidence to believe. We concluded, therefore, that an ALJ could choose to disregard the clinical findings and opinions of the university evaluator but must state a reasonable basis for doing so. In the instant case, the ALJ stated a reasonable basis for choosing to disregard Dr. Windmill’s opinion that the hearing loss was caused by the claimant’s employment for the defendant-employer. Under those circumstances, the decision was properly reinstated by the Court of Appeals.

With regard to the back injury, the ALJ focused upon testimony by Dr. Best that half of the claimant’s 5% impairment was the result of “pre-existing degenerative changes” and excluded half of the impairment when calculating his income benefit. However, as was noted by the Board, degenerative changes are not necessarily age-related. Furthermore, Dr. Best used the DRE model when assessing the 5% impairment, and Chapter III of the AMA Guidelines specifically states that age-related changes were excluded when drafting that model for assessing impairment. In any event, if pre-existing degenerative changes, themselves, are work-related, they are compensable. Haycraft v. Corhart Refractories Co., Ky., 544 S.W.2d 222, 225 (1976). Finally, if work-related trauma causes nonwork-related degenerative changes to be aroused into disability and to result in an impairment, that harmful change is compensable. McNutt Construction v. Scott, Ky., 40 S.W.3d 854, 859 (2001). Because the ALJ did not consider these factors, the claim must be remanded for further consideration of the extent to which the 5% impairment is compensable.

In a cross-appeal, the employer asserts that the testimony of an audiologist is inadmissible as medical evidence of causation. The employer objected to the admission of Dr. Windmill’s testimony as a university evaluator because he was not a physician. KRS 342.0011(32) defines “physician” as meaning “physicians and surgeons, psychologists, optometrists, dentists, podiatrists, and osteopathic and chiropractic practitioners acting within the scope of their license,” but it does not include audiologists. Nonetheless, the ALJ admitted the testimony, noting that KRS 342.315(2) referred to “physicians and institutions performing evaluations” and to “designated evaluators.” The Board affirmed, but the Court of Appeals did not address the admissibility of the testimony although the employer raised the issue. As we have interpreted KRS 342.315(2), an ALJ is authorized to weigh a university evaluator’s testimony and to disregard it if a reasonable basis for doing so is stated. Under those circumstances, we conclude that testimony concerning the cause of a hearing impairment that is made by an audiologist who is designated as a university evaluator is admissible even though audiologists are not included in KRS 342.0011(32).

The decision of the Court of Appeals is affirmed.

LAMBERT, C.J., and COOPER, JOHNSTONE, and STUMBO, JJ., concur. KELLER, J., concurs by separate opinion in which GRAVES, J., joins. WINTERSHEIMER, J., concurs in result only.