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Joy Mining Machinery Co. v. Workers' Compensation Appeal Board

November 19, 2010

JOY MINING MACHINERY COMPANY, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (ZERRES), RESPONDENT



The opinion of the court was delivered by: Senior Judge Friedman

Submitted: August 20, 2010

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

Joy Mining Machinery Company (Employer) petitions this court for review of an order of the Workers' Compensation Appeal Board (WCAB), dated February 25, 2010, which affirmed the order of a Workers' Compensation Judge (WCJ) granting the claim petition filed by Charles Zerres (Claimant). We affirm.

Claimant has worked for Employer for over forty years, most of them as a machine operator. Claimant began wearing hearing muffs in the 1970s, but, in some of the jobs he did for Employer, he could still hear the noise through the muffs. Claimant continues to wear hearing protection up through the present; however, he now wears earplugs and sometimes earplugs with hearing muffs. Still, sometimes the loud noise hurts Claimant's ears. A tool called a waukeshaw squeals and drives Claimant "crazy," even when he wears earplugs and hearing muffs. The hammering aggravates Claimant, and it goes on every day, but not constantly. Claimant also works near the boom cell, which is a particularly noisy operation, and there is some air arcing in the part of the plant where Claimant works. (Findings of Fact, Nos. 5, 8-9.)

Claimant also has been exposed to noise outside of work. He has hunted, and he has operated farm equipment as a youth, small woodworking machinery in his home, and lawn care equipment. Claimant had no concerns about his hearing until the late 1980s. He reported the problem at work, and he was sent to see a doctor. More recently, Claimant was seen by Dr. Michael C. Bell, who informed Claimant that he had a hearing loss in excess of 10%. (Findings of Fact, No. 5.)

Claimant subsequently filed a claim petition for occupational hearing loss as of December 1, 2006, caused by exposure to hazardous noise at work. Employer filed a response, denying the material averments in the petition, and hearings were held before the WCJ.

Claimant testified on his own behalf and presented the January 12, 2007, report of Dr. Bell to support his hearing loss claim.*fn1 Dr. Bell documented Claimant as having suffered a binaural hearing loss of 13.125%. Dr. Bell reviewed Claimant's history of noise exposure inside and outside of work and opined that Claimant's primary source of noise exposure was his years of work with Employer. Dr. Bell believed "that based on the Claimant's history, physical examination and audiometric testing results the Claimant's 13.125% hearing impairment is causally related to his 38-year cumulative exposure to loud industrial noise at [Employer]." (Findings of Fact, No. 12.)

In opposition to the claim, Employer presented the July 27, 2007, report of Dr. Moises A. Arriaga, who agreed that Claimant's binaural hearing impairment is 13.125%. According to Dr. Arriaga, however, the pattern of Claimant's hearing loss is atypical for purely occupationally-induced hearing loss. Rather, Claimant's hearing loss is multifactorial, caused in part by recreational shooting, his use of recreational tools, occupational noise, a familial predisposition to hearing loss in old age, central nervous system circulatory changes and probable endolymphatic hydrops. Dr. Arriaga opined that "9.2% of the Claimant's binaural hearing loss is the maximum impairment potentially attributable to occupational noise from his December 1, 2006 audiogram." (Findings of Fact, No. 13.)

Employer also presented the testimonies of certain current and former employees regarding the noise to which Claimant was subjected at work, including the testimony of Christopher Wright, a general foreman who was Claimant's supervisor from 1995 to 1998. Wright testified to the noise level on the floor where Claimant worked, indicating employees could talk normally there, but also acknowledging that, when certain processes like air arcing, hammering and grinding occur, it might be difficult to converse normally. (Findings of Fact, No. 6.)

Employer further presented the deposition testimony of Douglas Callen, Ph.D., the owner of Hearing Conservation Associates, regarding Employer's hearing conservation program. Dr. Callen explained that he tests five employees each month, including machinists and employees in the area where Claimant works. He attaches a dosimeter to the employee, which allows him to determine a time-weighted average of the noise level for the period the employee wears it. Although Dr. Callen agreed that an employee might be exposed to noise levels above 90 dB for ten or twenty minutes, there was not one eight-hour time-weighted average measured by the dosimeter that equaled or surpassed 90 dB, OSHA's standard for a safe environment. (Findings of Fact, No. 16.)

However, on cross-examination, Dr. Callen agreed that the noise level would depend upon production at any given time; that different materials used in the work process would cause different types and levels of noise; that production techniques and types of materials might be different than on the days when the noise levels were sampled; that, on days he did not measure the noise, he did not know if the noise levels exceeded 90 dB; and that the area where Claimant works was one of the noisiest places in the plant. (Id.)

After considering the evidence, the WCJ accepted Claimant's testimony as fact, (Findings of Fact No. 18), and also credited the medical opinion of Claimant's expert, Dr. Bell, over the medical opinion of Dr. Arriaga. In doing so, the WCJ stated that Dr. Bell "accurately delineated Claimant's work history, medical history and non-work related noise exposure." (Findings of Fact, No. 19.) The WCJ discredited Dr. Arriaga's opinion that "non-work related factors were causative of just enough of the Claimant's hearing loss to bring him below the 10% threshold." (Findings of Fact, No. 20.) However, the WCJ partially credited Dr. Arriaga's opinion that "Claimant's binaural hearing loss is 13.125%" and also partially credited Dr. Arriaga to the extent he agreed "that the noisy work environment was a causative factor" in Claimant's hearing impairment. (Id.)

Beyond the medical reports, the WCJ credited Wright's testimony inasmuch as he stated that the noise levels in the plant could vary depending on the tools and metals being used. (Findings of Fact, No. 21.)*fn2 Finally, the WCJ found that Dr. Callen's deposition testimony, while credible with respect to Employer's attempts at hearing conservation, failed credibly to establish that Claimant was not exposed to hazardous occupational noise. (Findings of Fact, No. 24.) Consequently, the WCJ concluded that Claimant met his burden of proving that he sustained a 13.125% binaural hearing loss due to his long-term exposure to hazardous noise while working for ...


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