S. F. Raymond Smith
Thomas P. Maroney
Rundle & Rundle Charleston, West Virginia
Pineville, West Virginia Attorney for the appellants,
Attorney for the appellant, Granville Gregory and
James Bilbrey Billie Lafferty
Robert J. Smith
Sarah E. Smith
Charleston, West Virginia Bowles, Rice, McDavid, Graff
Attorney for the Workers' & Love
Compensation Commissioner Charleston, WV
Attorney for the appellee,
William F. Richmond, Jr. Kaiser Aluminum & Chemical Corp.
Abrams, Byron, Henderson
& Richmond Robert J. Busse
Beckley, West Virginia Jackson & Kelly
Attorney for Ranger Fuel Charleston, WV
Corporation Attorney for the appellee,
Milburn Colliery Company
JUSTICE BROTHERTON delivered the Opinion of the Court.
1. In order to rule out conductive losses due to
injuries to the external and middle ear, bone conduction testing
should be performed routinely.
2. If a conductive loss exists, the four frequency total
should be adjusted by the physician to deduct the amount of the
conductive loss from the total used to estimate wholeman
3. Speech discrimination testing is valuable, except
where it is performed at an improper decibel level. Thus, all
speech discrimination testing must be performed at the same decibel
level in order to be considered valid. Unless the Health Care
Advisory Panel reaches a different conclusion, we believe the 75
decibel level identified by the Craddock committee should be used
as the uniform testing level.
4. At the time the Commissioner rules the claim
compensable, the order should identify whether it is to be
considered under the Craddock standard or the post-Craddock 1986
5. Only physicians who are qualified otologists or
otolaryngologists are permitted to interpret the results of the
audiograms. Interpretation by non-expert physicians will be given
little weight and will be considered secondary to expert opinion.
6. In referring a claimant to a physician for a hearing loss examination, the Commissioner should inform the physician what tests the physician is to conduct, at what decibel level, the standards to be used in making a rating, and any other specifics necessary for the Commissioner to reach an informed decision. Failure to do as requested will result in the physician not being compensated for the testing and report.
This case involves four consolidated appeals from
decisions of the Workers' Compensation Appeal Board and the
Workers' Compensation Commissioner dealing with hearing loss. The
consolidation grows out of the confusion that confronts this Court
by the records on appeal for hearing loss awards. Uniform testing
is not something that is routinely found in the cases which come
before us. The lack of standardized hearing loss testing creates
utter confusion for the claimants, employers, lawyers, and most
certainly for this Court when we consider the record on appeal.
While we realize the Commissioner is creating a Health Care
Advisory Panel (Panel) to study the problem of uniform testing, we
are, by this opinion, setting forth certain criteria that we find
necessary for a proper review of the cases which come before us.
These new standards are to be used from this time forward and lay
a foundation for the Panel to use in writing standard testing
requirements for hearing loss.
The first case involves an appeal by James Bilbrey from
a decision of the Workers' Compensation Appeal Board and
Commissioner. The employer, Ranger Fuel Corporation, also files an
appeal from the decision of the Appeal Board and Commissioner. The
claimant, James Bilbrey, filed a petition for hearing loss benefits
on October 17, 1985. Dr. A. J. Paine completed the physician's
section and diagnosed a sensorineural hearing loss. The claim was
ruled compensable, and on April 22, 1986, the Commissioner granted
the claimant a 17.75% permanent partial disability (PPD) award
based upon Dr. P. C. Corro's report dated March 17, 1986. However,
Dr. Corro's report estimated only a 13.4375% PPD due to hearing
loss. Thus, Ranger Fuel protested the April 22, 1986, award.
The claimant filed a supplemental report prepared by Dr.
Paine dated May 7, 1986, in which he calculated Dr. Corro's
audiogram to equate to a 21.75% hearing loss. Dr. Paine also
calculated his first audiogram from the initial application to
equal 20.0625% PPD.
By letter dated June 12, 1986, Ranger Fuel filed medical
records from Dr. George Miller, which included audiograms from
December 1, 1972, and June 15, 1976. The records indicated a
history of external ear infections and sinus problems.
Dr. Corro testified on October 21, 1987. At that time,
Dr. Corro stated that based upon Dr. Miller's notes, the claimant
had a long standing sinus problem which would affect his hearing as
a conductive component and noted that he found a conductive
component in both his audiogram and Dr. Paine's audiogram. Thus,
he stated that the conductive component should be factored out of
the total audiogram results to determine the hearing loss due
solely to noise exposure. Thus, by supplemental report dated
October 21, 1987, Dr. Corro stated that the claimant was entitled
to a 12.65% PPD award based upon only the non-conductive portion of
On December 14, 1987, the claimant was examined by
Sherman Hatfield, M.D. Dr. Hatfield found that, based upon the
Craddock standards, the claimant was entitled to a 9.5% PPD award.
Shortly thereafter, the claimant filed the report of Dr. Robert
Miller dated January 12, 1988, in which the claimant's hearing loss
was identified as 27.65%.
On July 13, 1989, Dr. Miller testified that the best
results obtained after the noise exposure is terminated should be
used in demonstrating the amount of hearing loss due to noise
exposure. That amount, he admitted, was Dr. Hatfield's 9.5%
However, by order dated October 3, 1989, the Commissioner
affirmed the prior order awarding the claimant a 17.75% PPD award.
On December 21, 1990, the Appeal Board affirmed the Commissioner's
order of October 3, 1989, which granted the claimant a 17.75% PPD
award for noise-induced hearing loss arising out of his employment.
Both parties appeal from that ruling, the claimant arguing that he
is entitled to a greater PPD award, while Ranger Fuel claims that
the claimant is entitled to 9.5% PPD award as demonstrated by Dr.
Hatfield's audiogram and Dr. Miller's testimony.
The next case involves the appeal of Billie Lafferty from
a decision of the Workers' Compensation Appeal Board. The claimant
filed for occupational hearing loss benefits on October 20, 1986.
The Commissioner ruled the claim compensable and referred the
claimant to Dr. William C. Morgan for an evaluation. Dr. Morgan
noted that the audiogram revealed low tone loss that was "very
possibly" not due to noise. Without correction, Dr. Morgan stated
that the audiogram revealed a 2.9% wholeman impairment. With
correction in the low frequencies, the claimant was entitled to a
.46% wholeman impairment. However, it was subsequently noted that
Dr. Morgan was incorrectly using the Craddock standards, which were
not applicable in this case, since the case was filed after
April 7, 1986. Thus, the Commissioner recomputed the results from
the audiogram and issued an order dated May 29, 1987, which held
the claimant had no permanent partial disability. The claimant
protested this ruling.
In support of his protest, the claimant introduced an
audiogram from Ms. N. J. Woody, an audiologist, dated July 23,
1987. The audiogram demonstrated a full frequency loss of 120 dB
in the right ear and 125 dB in the left ear. That audiogram
calculated out to a 2.3% wholeman impairment.
On September 26, 1989, the Commissioner affirmed the
compensability ruling, but set aside the May 29, 1987, order
holding the claimant had no permanent partial disability. Instead,
the Commissioner granted the claimant a .50% PPD award on the basis
of Dr. Morgan's findings and, strangely enough, stated that "the
April 21, 1987, report of Dr. William C. Morgan most accurately
indicates the true extent of the claimant's noise-induced hearing
By corrected order dated March 13, 1991, the Appeal Board
affirmed the Commissioner's final order granting a .50% PPD award.
This proceeding is the employer's appeal from that final ruling.
The fourth appeal involves a claimant, Granville Gregory,
who filed his application for hearing loss benefits on June 27,
1988. Dr. Viall completed the physician's portion of the
application and diagnosed a noise-induced hearing loss. The claim
was ruled compensable and the claimant was examined by Dr. James L.
Bryant at the request of the Commissioner. Dr. Bryant stated that
much of the claimant's hearing loss was due to presbycusis and
noise exposure. Following the audiogram, Dr. Bryant stated the
claimant had only a 1.10% wholeman impairment related to noise
exposure after he reduced the four frequency total of 185 in the
right ear to 110, and 190 in the left ear to 115. He stated that
"this reduction is to approach a hearing pattern that I feel is
directly related to noise exposure." However, by order dated
November 18, 1988, the Commissioner granted the claimant a 14.50%
PPD award. Both parties protested this ruling.
The employer submitted a report of Dr. R. A. Wallace
dated May 12, 1989. Dr. Wallace stated that the initial audiogram
on the claimant's application by Dr. Viall was insufficient in that
no bone conduction testing was performed. He also stated that the
claimant had a significant ascending low-frequency hearing loss
which was incompatible with noise-induced hearing loss. Thus, Dr.
Wallace corrected the lower frequencies to factor out the non-occupational element of the claimant's hearing loss and stated that
the claimant had a 1.28% PPD related to noise-induced hearing loss.
The employer also submitted a report of Dr. Corro dated
July 14, 1989. Dr. Corro noted that only 50% of the claimant's
hearing loss could be attributed to noise exposure and thus,
recommended a 6.5% PPD award due to noise at work.
By final order dated June 12, 1989, the Commissioner
affirmed the prior rulings granting the claimant a 14.5% PPD award.
The employer appealed to the Workers' Compensation Appeal Board
and, on February 15, 1991, the Appeal Board set aside the
Commissioner's order and directed the Commissioner to enter an
order granting the claimant a 6.5% PPD award. This proceeding is
the claimant's appeal from that final ruling.
These cases were consolidated by this Court in a joint
appeal in order to address an issue which has plagued both this
Court and the workers' compensation system. As illustrated by the
cases described above, there is little or no consistency in the
manner in which the Commissioner grants permanent partial
disability awards for noise-induced hearing impairment or in the
tests that are required in order to determine what percentage of
loss is actually due to noise.
Unlike other types of compensable injuries, the area of
hearing loss lends itself to a structured approach in determining
the amount of wholeman impairment due to noise exposure. Experts
agree on several crucial facts regarding the etiology and
progression of sensorineural hearing losses. First, a hearing loss
is visually demonstrated on an audiogram, which can record two
types of results: air conduction and bone conduction.See footnote 1 Air
conduction scores measure the response to sound traveling through
the outer, middle, and into the inner ear. Bone conduction
measures the sound which reaches the inner ear by placing a
vibrating device behind the ear to transmit the sound, bypassing
the middle ear. The audiogram can show losses in both the high and
low frequencies. Losses in the high frequencies are generally due
to noise exposure, such as those which occur at work. However,
losses in the lower frequencies generally are not due to noise
exposure and are often caused by damage to the external or middle
ear. A loss due to external or middle ear damage is known as a
conductive loss. A conductive component can be identified on the
audiogram and should be factored out of the equation when the
amount of the sensorineural hearing loss is being calculated.See footnote 2
Second, without discussing the anatomy of the ear in
great depth, it is also well accepted by experts that once exposure
to noise ceases, hearing loss existing at that time must also cease
any progression, unless other factors are involved in creating the
hearing loss. Damage can be caused by many different factors other
than noise, including, but not limited to, diabetes, hypertension
and vascular diseases, otosclerosis, medications, hereditary
problems, acoustic trauma, aging (presbycusis), and surgery.See footnote 3 We
should also note that the audiogram is a subjective test, as it
measures a subject's response to noise. Thus, the reliability of
the test and the validity of the results are important factors.
Third, experts have pointed out that if there is a
fluctuation in the hearing loss between audiograms which is greater
than the margin of error, then the audiogram which shows the least
amount of hearing loss should be used to determine the hearing loss
due to noise exposure. The reasoning behind this rule is
complicated, but important. As we noted above, once noise exposure
stops, so does the progression of the hearing loss unless other
factors are involved. Damage to hearing is permanent: Once the
hair cells in the cochlea are destroyed, the cells cannot be
rejuvenated. Thus, once the damage is done, one's hearing can get
neither better nor worse because of noise exposure, but it can get
worse because of a secondary condition, such as the conditions
listed above. Thus, if one audiogram shows a substantially worse
four frequency total than a second audiogram, the expert must work
with the premise that since a noise-induced loss is static, some
other factor must be responsible for the difference between the two
audiograms, such as a sinus or eustachian tube problem.
Accordingly, the better audiogram of the two should be used as the
audiogram most representative of the sensorineural loss, since the
difference between the best and the worst audiograms must be caused
by something other than noise.See footnote 4
During oral argument, counsel for the Commissioner
informed this Court that a Health Care Advisory Panel has been
formed within the Workers' Compensation office, in which protocols
for testing are being established for the various occupational
diseases and injuries which are subject to dispute before the
Workers' Compensation Fund. Unfortunately, the Panel is not due to
address this issue for several months. In the meantime, we believe
the Workers' Compensation Commissioner needs direction in
developing a uniform manner of determining the percentage of
impairment. While we do not claim to be specialists in the field
of otolaryngology, we are aware, from the numerous cases and briefs
which have come before us, that certain tests are necessary for
this Court to make an accurate review of the record, and thus, must
be necessary for the Commissioner to reach an informed decision.
This Court has previously found it necessary to identify
certain requirements in hearing loss cases. Craddock v. Lewis, No.
16420 (W.Va., October 3, 1984), involved an agreed order in which
we directed the Commissioner to adopt a new formula for evaluating
hearing loss claims based upon the recommendations of a committee
of experts. The Commissioner later adopted new standards known as
the Craddock standards based upon the recommendation of the Court
and committee. The Craddock standards required that only certified
audiologists perform the audiogram and set forth a standard for
assessing the degree of hearing impairment. It also provided a
table for determining the degree of impairment in speech
discrimination, allowed an award for tinnitus, set the high and low
boundaries of decibel hearing loss to be used in assessing
impairment, and discussed the use of the treating physician's
report in assessing a claimant's hearing loss. Although the
Legislature subsequently amended Craddock in 1986, this Court has
clearly demonstrated its obligation to require certain standards
when none exist below.See footnote 5
The cases now before us are no exception. From our
review, we believe that certain tests are required in all hearing
loss claims in order for the Commissioner to reach a consistent
result. However, our opinion today does not instruct the
physicians how to perform the tests discussed, but instead, advises
as to what tests must be performed in order for this Court to reach
an informed decision on appeal. First, air conduction testing,
which is always performed as part of an audiogram, is but half the
picture. In order to rule out conductive losses due to injuries to
the external and middle ear, bone conduction testing should also be
performed routinely. Second, if a conductive loss exists, the four
frequency total should be adjusted by the physician to deduct the
amount of the conductive loss from the total used to estimate
wholeman impairment. Speech discrimination testing is valuable,
except when it is performed at an improper decibel level. Thus,
all speech discrimination testing must be performed at the same
decibel level to be considered valid. Unless the Panel reaches a
different conclusion, we believe the 75 decibel level identified by
the Craddock committee should be used as the uniform testing level.
Third, at the time the Commissioner rules the claim compensable,
the order should identify whether it is to be considered under the
Craddock standard or the post-Craddock 1986 amendments. Next, as
we have pointed out before, the determination of the percentage of
sensorineural hearing impairment is a complex issue. Thus, only
physicians who are qualified otologists or otolaryngologists are
permitted to interpret the results of audiograms. Interpretation
by non-expert physicians will be given little weight and will be
considered secondary to expert opinion. Finally, in referring a
claimant to a physician for a hearing loss examination, the
Commissioner should inform the physician what tests the physician
is to conduct, at what decibel level, the standards to be used in
making a rating, and any other specifics necessary for the
Commissioner to reach an informed decision. Failure to do as
requested will result in the physician not being compensated for
the testing and report.
Although each of the cases listed above involve expert
opinion, bone conduction was not performed in all the cases, nor
was the amount of the conductive loss, if identified, deducted from
the four frequency totals. Further, the necessary standards,
whether Craddock or post-Craddock, were not identified and resulted
in much confusion. Accordingly, we remand these cases to the
Commissioner to be examined in light of this opinion set forth
Footnote: 1See American Medical Association Guides to the Evaluation of Permanent Impairment (2d ed. 1984).
Footnote: 2The amount of wholeman impairment is calculated by adding the results given for 500, 1000, 2000, and 3000 hertz. This four frequency total should be adjusted to reflect the amount of any conductive loss identified on the audiogram.
Footnote: 3See W. Clark, Ph.D., W. C. Morgan, M.D., S. J. Wetmore, M.D., Charleston Area Medical Center, West Virginia University Health Sciences Center, Seminar on the Evaluation of Hearing Loss for Workers Compensation (1991).
Footnote: 4If the claimant is still exposed to noise on the job, then the expert must consider the temporary threshold shift in hearing which occurs when a person leaves a noisy environment for a quieter one.
Footnote: 5In 1986, the Legislature amended W.Va. Code § 23-4-6, the Code section dealing with hearing loss, after careful consideration of this Court's opinion in Craddock. The new post-Craddock standard, among other things, recalculated the table for disability ratings for pure-tone loss, provided a new table for determining the impairment due to speech discrimination, reduced the rating for total loss of hearing in one and both ears, and did away with benefits for tinnitus, psychogenic loss, recruitment, and loss above 3000 hertz.