FRANCIS M. FORD,		)
				)
Employee,			)	DECISION AND ORDER
Applicant,			)
				)	AWCB Case No. 8923968
v.				)
				)	AWCB Decision No. 90-0019
PIQUNIQ MANAGEMENT CORP.,	)
				)	Filed with AWCB Anchorage
Employer,			)	February 5, 1990
				)
and				)
				)
ALASKA NATIONAL INS. CO.,	)
				)
Insurer,			)
Defendants.			)
				)

We heard this claim in Anchorage on January 11, 1990. Employee was present and represented himself. Defendants were represented by attorney Elise Rose. We closed the record when the hearing ended.

1. Did Employee suffer a work-related injury, specifically, hearing loss in his left ear?

2. If so, are permanent partial impairment (PPI) benefits warranted?

Employee was hired as a cook to work for Employer on Amchitka Island where Employer worked on construction of a radar apparatus for the military. (Employee September 29, 1989 recorded statement at 6-7) He began working there on approximately June 12, 1989. He was eventually promoted to cook supervisor. (Id. at 6).

Employee worked twelve hours per day, seven days a week for four weeks and then got two weeks off. On September 6, 1989 he went to a medic and complained of ringing in his ear for the previous few days. (September 20 , 1989 report of D.A. Moreno-Miller, U.S. Navy medic).

Employee complained that the ringing was caused by loud music in his work area. Employee stated that the music, was a constant pounding which was played 10-20 feet from his work area; and since it was played to his left side, only his left ear was affected. (Recorded statement at 15). Employee added that at one time, two radios played at the same time:

(Id. at 16-17).

Employee later clarified that two radios boomed, one in his left ear and one in his right ear. (Id. at 17). It is unclear how long both radios played loudly. At hearing, Employee seemed to indicate that the loud music from one radio lasted for approximately two weeks during his shifts. In his recorded statement, he indicated that Mr. Steiner's radio (the second radio) played for five days. (Id.). At hearing, Employee described the music as "fifties rock" and "heavy metal."

The medic's report indicates during the September 6, 1989 examination, Employee "stated he believed the ringing was caused by the loud music in his work area." (September 20, 1989 report of D.A. Moreno-Miller). The medic stated the examination of Employee's ear was "essentially unremarkable except for a small amount of bright red blood to the distal aspect of the left ear canal. The patient was able to hear my normal voice from a distance of six feet, and my whispered voice from a distance of three and four feet."

The medic diagnosed "left ear otitis externa and subjective complaint of tinnitis." Employee was given antibiotic ear drops and told to return in five days if his symptoms worsened.

The medic's report indicates Employee returned on September 12, 1989. According to the report, Employee stated the ringing in his ears had stopped, and he felt better. The medic advised Employee to return to work. The medic also advised Employee's supervisor that Employee had an ear infection, and the loud music was causing some discomfort. (Id.).

On approximately September 13, 1989 Employer discharged Employee. Employee stated Employer claimed the discharge occurred because he couldn't get along with subordinates. (Recorded statement at 9).

Employee returned to Anchorage where he got an appointment with Jack Smith, M.D., an ear, nose and throat specialist. Dr. Smith referred Employee for an audiologic evaluation which was administered by Anne Curtis, a certified audiologist.

In her report of the September 21, 1989 examination, Curtis indicated pure tone thresholds revealed essentially normal hearing in the right ear and mild to moderate sensorineural high frequency hearing loss in the left ear. Speech reception thresholds were consistent with pure tone averages, and Employee's responses were "highly consistent." Curtis also stated speech discrimination scores were excellent bilaterally at 60 decibels (dB), "though the patient stated the left ear words were "fuzzier."

Dr. Smith examined Employee's ear, nose and throat and evaluated the audio tests done by Curtis. Dr. Smith indicated the audio tests showed Employee has a moderate degree of nerve-type loss in the left ear. The doctor's impression was "mild to moderate sensori-neural loss, left ear." (Smith September 22, 1989 report). Dr. Smith recommended that because of the continued tinnitus reported by Employee and nerve type loss reflected on the test, Employee should avoid heavy noise exposure as much as possible. Neither Dr. Smith nor Curtis calculated a permanent binaural hearing impairment.

In the history section of Dr. Smith’s report, handwritten notes, presumably recorded by Dr. Smith's assistant, indicate Employee stated the tinnitus was "due to loud music." The notes also state Employee "has worked around loud (equipment) before--oil platform, Prudhoe Bay, (Fort Richardson) kitchen."

Subsequently, Defendants referred Employee to Charles Tschopp, M.D., another ear, nose and throat specialist. Dr. Tschopp examined Employee on November 14, 1989. Dr. Tschopp took a thorough history from Employee, noting Employee stated that his hearing was normal before he began to work at Amchitka, and Employee denied any significant, previous noise exposure. (Tschopp November 14, 1989 report at 1).

Dr. Tschopp indicated Employee had "[u]nilateral sensorineural hearing loss, left, with tinnitis, temporally related to noise exposure from amplified radios or tape players. Since that time, he has had ringing and hearing loss in his left ear. The audiogram, which appears to be reliable, is abnormal." (Id.). Dr. Tschopp concluded:

(Id. at 2).

Dr. Tschopp wrote a letter to Patricia Janke-Wilson on November 16, 1989. He enclosed a copy of his November 14, 1989 report and stated Employee had "no rateable hearing loss" under the American Medical Association's Guides to the Evaluation of Permanent Impairment. None of the tests recommended by Dr. Tschopp has been performed.

During his September 29, 1989 recorded statement, Employee was asked about the condition of his hearing and ringing in his ears. He stated in part:

(Employee Recorded Statement at 19).

At the hearing in this matter Employee asserted that the loud music caused his hearing loss because he had a pre-job physical, and he passed the hearing test. He added that prospective employees must pass the test or they cannot work. The copy of the physical, dated June 15, 1989 states "reference audiogram" and then shows "OD-17," and "OS-20." However, Dr. Tschopp stated that this does not indicate that an audiogram was done. (Tschopp November 14, 1989 report at 1). Dr. Tschopp also pointed out that there is no documentation on the amount of sound created by the radios in Employee's work area. (Id.).

Employee also testified that he never hit his head while working for Employer, and he is not contending he suffered brain damage from listening to the loud music.

In their brief, Defendants argue that Employee has not produced sufficient evidence to raise the statutory presumption in AS 23.30.120. They further argue that even if the presumption is raised, it is overcome by the evidence in the case, and that, in any event, Employee has not suffered any time loss and has not shown that he suffered a rateable permanent impairment.

Brenda Gaffney, claims adjuster for Insurer, testified that Dr. Smith's bill has been paid, and Defendants will also pay Curtis's bill. Because Dr. Tschopp's examination was done at Defendants' request, it has already been paid, too.

1. Did Employee suffer a work-related injury?

AS 23.30,120(a) provides in pertinent part: "In a proceeding for the enforcement of a claim for compensation under this chapter it is presumed, in the absence of substantial evidence to the contrary, that (1) the claim comes within the provisions of this chapter."

In Burgess Construction Co. v. Smallwood, 623 P.2d 312, 316 (Alaska 1981) (Smallwood II), the Alaska Supreme Court held that the employee must establish a preliminary link between the injury and continuing symptoms. This rule applies to the original injury and continuing symptoms. See Rogers Electric Co. v. Kouba, 603 P.2d 909, 911 (Alaska 1979). "[I]n claims based on highly technical medical considerations' medical evidence is often necessary in order to make that connection." Smallwood II. "Two factors determine whether expert medical evidence is necessary in a given case: the probative value of the available lay evidence and the complexity of medical facts involved." Veco Inc. v. Wolfer, 693 P.2d 865, 871 (Alaska 1985). Once the employee makes a prima facie case of work-relatedness the presumption of compensability attaches and shifts the burden of production to the employer, Id. at 870. To make a prima facie case the employee must show 1) that he has an injury and 2) that an employment event or exposure could have caused it.

To overcome the presumption of compensability, the employer must present substantial evidence the injury was not work-related. Id.; Miller v. ITT Arctic Services, 577 P.2d 1044, 1046 (Alaska 1978). The Alaska Supreme Court "has consistently defined insubstantial evidence' as 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."' Miller, 577 P.2d at 1046 (quoting Thornton v. Alaska Workmen's Compensation Board, 411 P.2d 209, 210 (Alaska 1966)). In Fireman's Fund American Insurance Cos. v. Gomes, 544 P.2d 1013, 1016 (Alaska 1976), the court explained two possible ways to overcome the presumption 1) producing affirmative evidence the injury was not work-related or 2) eliminating all reasonable possibilities the injury was work-related. The same standards used to determine whether medical evidence is necessary to establish the preliminary link apply to determine whether medical evidence is necessary to overcome the presumption. Veco, 693 P.2d at 871. "Since the presumption shifts only the burden of production and not the burden of persuasion, the evidence tending to rebut the presumption should be examined by itself." Id. at 869. If the employer produces substantial evidence that the injury was not work-related, the presumption drops out, and the employee must prove all the elements of his claim by a preponderance of the evidence. Id. at 870. "Where one has the burden of proving asserted facts by a preponderance of the evidence, he must induce a belief in the minds of jurors that the asserted facts are probably true." Saxton v. Harris, 395 P.2d 71, 72 (Alaska 1964).

We find that the question here is whether Employee's minor hearing loss in his left ear was caused by the loud music he listened to, or whether the ear infection he had was aggravated by the loud music.

We find very little evidence on this point beyond Employee’s testimony that he believes he suffered a left ear hearing loss from the loud music. Neither Dr. Smith nor Dr. Tschopp gave an opinion on whether the noise from the music may have caused Employee’s minor left ear hearing deficiency. Moreno-Miller, the medic indicated that Employee had an ear infection which may have been aggravated by the loud music.

The Alaska Supreme Court has written two recent opinions on the statutory presumption. Resler v. Universal Services, Inc., 778 P.2d 1146 (Alaska 1989); and Cheeks v. Wismer & Becker/G.S. Atkinson, 742 P.2d 239 (Alaska 1987). In each of these cases, the court implied that it takes very little evidence to raise the presumption.

We find even less evidence in this case, than the court found in either Resler or Cheeks, on which to raise the presumption. We further find that hearing loss is sufficiently complex in nature that expert medical evidence is required to make the connection between an alleged hearing loss and the work incident.

In this case, we also find the lay evidence lacks sufficient probative value to make the connection. It is one thing for Employee to simply say he suffered a hearing loss; it is another to produce basic evidence of the loss. Employee claims he suffered a hearing loss, but in his recorded statement he says he keeps his music "down low." This suggests to us he can still hear music which is played softly. Further, we note Employee had no problem hearing anyone during the hearing of this matter.

Moreover, there is insufficient medical evidence, regarding Employee's hearing range before his exposure to the music on Amchitka Island, to raise the presumption. There is no evidence that Employee's pre-hire physical included an audiogram which measured his range of hearing. In addition, neither Dr. Smith nor Dr. Tschopp gave an opinion on whether Employee's minor left ear hearing deficiency was caused by his exposure to the kitchen music.

In summary, Employee produced no evidence that he suffered a hearing loss from the music except for his own subjective statements. As noted, we find these statements, by themselves, insufficient to raise the statutory presumption. Therefore, we conclude Employee has not established a preliminary link between his hearing loss and his employment with Employer on Amchitka Island. Accordingly, his claim for benefits on the basis of the hearing loss is denied and dismissed.

Even if we had concluded Employee had raised the statutory presumption that he had suffered hearing loss from the loud music, we would conclude Defendants overcame the presumption with substantial evidence, specifically the report of medic Moreno-Miller which indicates Employee felt better and the ringing had stopped, and the report of Dr. Tschopp stating Employee had suffered no rateable hearing loss.

We would then find that Employee failed to prove all the elements of his claim. We would base this finding on the above evidence we would have used to overcome the presumption, Employee's testimony which indicates he can hear music at a low volume, and our observation that Employee could bear just fine.

We next turn to the issue whether Employee has raised the statutory presumption that he suffered an ear infection which was aggravated by the loud music. We find that Moreno-Miller's medic report that Employee suffered left ear otitis externa and subjective complaint of tinnitis, and Employee's statements that he suffered pain and ringing in his left ear, are sufficient evidence to raise the presumption. Since neither Dr. Smith nor Dr. Tschopp addressed this issue (whether Employee suffered a work-related aggravation of his ear infection), and since there is no other rebutting evidence, we conclude Defendants failed to overcome the presumption that Employee suffered a work-related aggravation of his ear infection. On this basis, Employee's claim comes within the provisions of the Alaska Workers' Compensation Act. AS 23.30.120.

However, Moreno-Miller's note of September 20, 1989 indicates Employee had returned after his initial visit, and the ringing had stopped and he felt better. We find that the aggravation of Employee's ear problem ended the day the loud music died or the day his infection ended, whichever occurred first. Therefore, we conclude Employee's aggravation was temporary and minor in nature, and it no longer exists.

We note Defendants have paid or have agreed to pay all related medical bills. We find they are not responsible for further medical benefits based on our conclusion Employee's aggravation has ended.

In addition to medical benefits, Employee also requested permanent partial impairment (PPI) benefits. Under AS 23.30.190, these benefits are awarded for impairments that are partial in character but permanent in quality. AS 23.30.190(b) requires [a]ll determinations of the existence and degree of permanent" to be made "strictly and solely under the whole person determination as set out in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment . . . ."

In this case, Employee has failed to produce evidence that such an impairment exists. On the contrary, Dr. Tschopp's November 16, 1989 letter indicates Employee has no rateable permanent impairment under the AMA Guides. Based on this total lack of evidence of a permanent impairment, we conclude Employee has suffered no permanent impairment of his hearing, and we deny and dismiss his claim for PPI benefits.

1. Employee's claim is compensable based on a temporary aggravation of his left ear infection.

2. Employee's aggravation has ended. Defendants are no longer responsible for medical benefits for this aggravation.

3. Employee's claim for permanent partial impairment benefits is denied and dismissed.

Dated at Anchorage, Alaska, this 5th day of February 1990.

ALASKA WORKERS' COMPENSATION BOARD

/s/ MR Torgerson
Mark R. Torgerson, Designated Chairman

/s/ Donald R. Scott
Donald R. Scott, Member

/s/ D.F. Smith
Darrell F. Smith, Member

MRT/mrt/jpc

If compensation is payable under terms of this decision, it is due on the date of issue and penalty of 25 percent will accrue if not paid witHin 14 days of the due date unless an interlocutory order staying payment is obtained in Superior Court.

APPEAL PROCEDURES

A compensation order may be appealed through proceedings in Superior Court brought by a party in interest against the Board and all other parties to the proceedings before the Board, as provided in the Rules of Appellate Procedure of the State of Alaska,

A compensation order becomes effective when filed in the office of the Board, and unless proceedings to appeal it are instituted, it becomes final on the 31st day after it is filed.

CERTIFICATION

I hereby certify that the foregoing is a full, true and correct copy of the Decision and Order in the matter of Francis M. Ford, employee/applicant; v. Piquniq Management Corp., employer; and Alaska National Insurance Co., insurer/defendants; Case No. 8923968, dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 5th day of February 1990.

Clerk

SNO