Ricigliano v. Rex Forge et al.

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

The respondents Rex Forge and CIGNA were represented by David Schoolcraft, Esq., formerly of Trowbridge, Schoolcraft, Duhamel & Basine, 45 Glastonbury Boulevard, Glastonbury, CT 06033 presently of Duhamel & Schoolcraft, 131 New London Turnpike, Suite 317, Glastonbury, CT 06033.

The respondents Rex Forge, Hartford Insurance Group, and Aetna Life & Casualty were represented by Douglas Drayton, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

The respondents Rex Forge and Travelers Insurance were represented by Dan Heffernan, Esq., Law Offices of Christine Harrigan, One Civic Center Plaza, 3CC, Hartford, CT 06103.

The respondents Rex Forge and Liberty Mutual Insurance were not represented at oral argument. Notice sent to Debra Dee, Esq., Law Offices of Nancy Rosenbaum, 655 Winding Brook Drive, P. O. Box 695, Glastonbury, CT 06033.

The respondents Ideal Forging and EBI Insurance were represented by James J. Moynahan, Esq., Montstream & May, 655 Winding Brook Drive, Glastonbury, CT 06605.

This Petition for Review from the November 4, 1996 Finding and Award of the Commissioner acting for the Sixth District was heard June 27, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the November 4, 1996 Findings of Fact and Award of the Commissioner acting for the Sixth District. He argues on appeal that the trial commissioner erred by finding that his binaural hearing loss amounts to only a .62 percent permanent partial impairment. We affirm the trial commissioner’s decision.

There is no dispute in this case that the claimant was exposed to excessive noise during the course of his employment from 1972 through 1991, and that audiometric testing by two doctors has revealed a high-frequency sensory neural hearing loss in both ears. The issue is simply how to translate that hearing loss into a disability rating. According to Dr. Yanagisawa, who prescribed a hearing aid for the claimant, the American Medical Association (AMA) guidelines only rate the claimant with a .62% binaural hearing loss. In contrast, Dr. Friedman, whose audiograms were virtually identical to Dr. Yanagisawa’s, rated the claimant with a 35% binaural hearing loss. He explained that the AMA measurement of hearing loss only considers frequency levels from 500 to 3000 cycles per second, and excludes the first 25 decibels. This means that the claimant’s difficulties in hearing higher-pitched human voices, his difficulties in separating background noise from conversation, and his inability to hear the television at a normal volume are all being overlooked by the AMA formula. Instead, Dr. Friedman applied a test which includes the first 25 decibels and measures hearing from 500 to 8000 cycles per second, thus encompassing the claimant’s actual hearing losses.

In his Findings of Facts and Award of Compensation dated October 20, 1994, the trial commissioner found that the claimant had sustained only a .62% binaural hearing loss. He deemed the claimant’s argument unpersuasive, stating that “the claimant failed to demonstrate compelling reasons for abandoning the AMA guidelines in determining binaural hearing loss.” This board considered that ruling on appeal, and held in a 2-1 decision that “the trial commissioner’s reliance on the AMA guidelines resulted in a permanent partial disability assessment which did not fairly or accurately reflect the claimant’s undisputed high frequency hearing loss.” Ricigliano v. Rex Forge, 15 Conn. Workers’ Comp. Rev. Op. 142, 145, 2190 CRB-6-94-10 (Jan. 18, 1996), appeal dismissed, A.C. 15655 (May 2, 1996). The case was remanded so that the trier could determine the claimant’s hearing loss without limiting himself to the AMA guidelines.

On remand, the commissioner noted that the claimant had agreed that he could determine the issue by considering the evidence presented during the first trial, as the respondents had objected to the submission of additional evidence. The trier’s findings were virtually identical to the ones he made in the 1994 decision, and he concluded that “Dr. Yanagisawa’s opinion that the Claimant had sustained a .62% binaural hearing loss was more credible than Dr. Friedman,” as the latter’s opinion was in fact not credible. The claimant has again appealed the trial commissioner’s decision to this board.

Subsequent to our first decision in Ricigliano, this board considered Blassingame v. Acme Steel Company, 16 Conn. Workers’ Comp. Rev. Op. 20, 3007 CRB-6-95-3 (Oct. 8, 1996). There, in a case very similar to this one, the trial commissioner had again relied on a medical opinion based on the AMA guidelines in finding that the claimant had a 1% hearing loss despite undisputed severe upper-frequency hearing damage. Writing for a unanimous panel, Chairman Frankl, who had dissented in Ricigliano, stated that reversing the trier’s decision would not comport with the principles of appellate review enunciated in cases such as Fair v. People’s Savings Bank, 207 Conn. 535 (1988), and Adzima v. UAC/Norden Division, 177 Conn. 107 (1979), which stress that finding facts amidst conflicting evidence is the fact-finder’s function. “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.” Blassingame, supra, 23. This decision was affirmed by the Appellate Court without written discussion. 45 Conn. App. 914 (1997) (per curiam).

The commissioner specifically found in the instant case that the opinion of Dr. Yanagisawa was more credible than that of Dr. Friedman, and relied on it in his decision. The trial commissioner also considered the provisions of the AMA guidelines. We cannot overturn that type of a factual determination of evidentiary credibility on review. Adzima, supra, 117-118; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). Thus, we must affirm the trier’s decision.