Blassingame v. ACME Steel Company

The claimant was represented by Robert Cohen, Esq., Levy & Droney, P.C., Pondview Corporate Center, 74 Batterson Park Road, P. O. Box 887, Farmington, CT 06034-0887.

The respondent employer and Liberty Mutual Ins. Co. were represented by Ellen Aspell, Esq., Law Office of Nancy S. Rosenbaum, 655 Winding Brook Drive, Glastonbury, CT 06033.

The respondent employer and CIGNA were represented by Diane Duhamel, Esq., Trowbridge, Schoolcraft & Basine, P.C., 207 Main St., Hartford, CT 06106.

The respondent employer and Aetna Life & Casualty were represented by Stephen Ekern, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

The respondent insurer Phoenix Assurance was not represented at oral argument. Notice sent to Phoenix Assurance, 4 World Trade Center, Suite 6274, New York, NY 10048.

The respondent insurer National Union Fire Insurance was not represented at oral argument. Notice sent to National Union Fire Ins., c/o A.I.A.C., 660 White Plains Road, P. O. Box 8, Tarrytown, NY 10591.

This Petition for Review from the February 8, 1995 Findings of Facts and Award of Compensation of the Commissioner acting for the Sixth District was heard January 26, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the February 8, 1995 Findings of Facts and Award of Compensation of the Commissioner acting for the Sixth District. He argues on appeal that the commissioner’s findings regarding the limited extent of his hearing loss were unsupported by the evidence. We affirm the trial commissioner’s decision.

The commissioner found that the claimant filed a Form 30C on July 21, 1992 alleging binaural hearing loss due to repetitive noise exposure from 1955 through April 23, 1992. A subsequent Form 30C was filed on May 18, 1994, amending the exposure period to include all times through the present. The claimant began working for Stanley Works (which is now owned by Acme Steel) in New Britain on September 22, 1955, and continued his employment there until the date of the formal hearing. Throughout most of those 39 years, he was exposed to industrial noise for at least eight hours per day. Prior to and during his employment, the claimant suffered no head injuries or serious illnesses, and neither he nor his family had any history of hearing difficulty. Although earplugs were provided to Acme employees in recent years, the company did not require that they be worn, and neither the claimant nor other employees normally wore them.

The claimant was advised by his employer to see a doctor as a result of several Acme-sponsored hearing examinations. The claimant saw Dr. Nova in May 1992, who performed an audiogram that revealed substantial high-frequency hearing loss. The doctor ascribed this condition to the noise exposure sustained by the claimant during his last 39 years of employment. Subsequent examinations by Drs. Perkins and Friedman also revealed severe high frequency hearing loss. However, because the AMA formula does not take into account either the first 25 decibels of hearing loss or high frequency hearing loss in computing overall hearing loss, Dr. Perkins opined that the claimant only had a one percent combined hearing loss in both ears.

Dr. Friedman, meanwhile, reported that the claimant had a 35 percent binaural hearing loss. Both he and Dr. Nova stated that the claimant could not hear high pitched sounds and whistles, could not filter out background noise or hear certain consonants in listening to conversations, and could not hear the TV set or voices over the telephone very well. Dr. Friedman’s hearing loss determination was based on the use of six frequencies between 500 and 8000 Hertz, rather than the four frequencies between 250 and 2000 Hz used by Dr. Perkins’ AMA-Guide-based test. The commissioner did not believe Dr. Friedman’s opinion that the AMA formula was unfair to the claimant because it was not representative of his true hearing loss. Instead, he accepted Dr. Perkins’ diagnosis of one percent total hearing loss, and awarded the claimant only 1.56 weeks of compensation. The claimant has appealed that decision.

The claimant’s primary contention on appeal is that the Workers’ Compensation Act does not allow an employer to exclude a portion of a claimant’s specific injury from being compensated. He argues that, although his high-frequency hearing loss is not disputed by any of the medical experts, the AMA formula arbitrarily ignores that loss. We recently had an opportunity to consider this argument in Ricigliano v. Rex Forge, 2190 CRB-6-94-10 (decided Jan. 18, 1996). There, the trial commissioner had before him two medical opinions nearly identical to those offered by Drs. Friedman and Perkins in this case. The commissioner stated that he did not find the opinion that strayed from the AMA guidelines persuasive, and concluded that the claimant only had a .62 percent permanent partial hearing loss, despite the fact that both doctors agreed that there was extensive high-frequency hearing loss in both ears. This board held in Ricigliano that the commissioner’s reliance on AMA guidelines “resulted in a permanent partial disability assessment which did not fairly or accurately reflect the claimant’s undisputed high frequency hearing loss,” and remanded the case for a determination of hearing loss independent of the AMA guidelines.

Dissenting in Ricigliano, Chairman Frankl cited the repeated holdings of this board that the trial commissioner has the fact-finding authority to determine the extent of a worker’s permanent partial disability, and that he has the power to choose among conflicting medical opinions. See Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995); Kerins v. Johnson Controls, 12 Conn. Workers’ Comp. Rev. Op. 72, 73, 1419 CRB-8-92-5 (Feb. 3, 1994). In Furrey v. Wells Fargo Alarm System, 11 Conn. Workers’ Comp. Rev. Op. 192, 1307 CRD-3-91-9 (Sept. 22, 1993), this board affirmed a commissioner’s decision to admit a journal article into evidence that was generally accepted as authoritative, even though the AMA had not adopted its evaluation method. We stated that “although the testimony of both the claimant’s expert and the respondents’ expert reveals that the use of the guidelines suggested in the challenged article is not without professional controversy, it was up to the trial commissioner to determine the admissibility and weight to be given to the evidence under these circumstances.” Id., 195.

This panel recognizes the factual similarity of this case to Ricigliano. However, we do not believe that reversing the trial commissioner’s decision here would comport with the principles of appellate review that have been enunciated in seminal cases such as Fair v. People’s Savings Bank, 207 Conn. 535 (1988), and Adzima v. UAC/Norden Division, 177 Conn. 107 (1979). By overturning the commissioner’s decision to credit Dr. Perkins’ medical opinion over Dr. Friedman’s opinion, we would be interfering with the commissioner’s quintessential function: to find the facts amid conflicting evidence. Whether or not the AMA guidelines are a fair and appropriate determinant of a claimant’s actual hearing loss in all cases, we cannot say; what we can and must say, however, is that the trial commissioner has the ultimate responsibility and authority to make that decision. Therefore, the trial commissioner’s decision to credit Dr. Perkins’ assessment of permanent partial disability must stand.

The claimant also argues that the commissioner erred by failing to award the claimant the costs of Dr. Friedman’s testimony and his medical examinations. Section 31-298 authorizes the commissioner to award such fees, but does not require that an award of fees be made in a given case. See Petta v. Waterbury Hospital, 11 Conn. Workers’ Comp. Rev. Op. 161, 164, 1310 CRD-5-91-9 (Aug. 23, 1993); Fappiano v. Nutmeg Concrete, Inc., 6 Conn. Workers’ Comp. Rev. Op. 29, 32, 652 CRD-3-87 (Sept. 27, 1988). The notion that such fees are not mandatory is strengthened by the fact that § 31-298 was amended in 1991 to remove language stating that the claimant “shall be entitled if he prevails on final judgment [in a contested case] to payment for services rendered him by a competent physician . . . .” Under the facts of this case, it was clearly within the trial commissioner’s discretion not to make an award against the respondents for Dr. Friedman’s fees.