Schilling v. New Departure-Hyatt Div.

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

The respondents were represented by Maureen H. Drummond-Closson, Esq., McGann, Bartlett, & Brown, 281 Hartford Tpke., Vernon, CT 06066.

This Petition for Review from the March 1, 1996 Findings of Compensability and Order of the Commissioner acting for the Sixth District was heard November 22, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Robin L. Wilson and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the March 1, 1996 Findings of Compensability and Order of the Commissioner acting for the Sixth District.1 He argues on appeal that the trier erred by finding that the claimant did not have a binaural hearing loss. The respondents have also filed a Motion to Dismiss this appeal. Although we deny the Motion to Dismiss, we affirm the trier’s decision.

The Motion to Dismiss is predicated on the claimant’s failure to file a timely brief. The CRB requested that his brief be filed by September 9, 1996. It was not filed until September 24, 1996. The respondents moved to dismiss the appeal on September 20, 1996. Where an appellant fails to file a timely brief, this board retains the discretion to dismiss its appeal. Norton v. James Fleming Trucking, Inc., 15 Conn. Workers’ Comp. Rev. Op. 472, 474, 2119 CRB-1-94-8 (Sept. 16, 1996). The brief in question was only two weeks late in this case, and the appellees have not demonstrated any prejudice from the late filing. We do not think that this delay was significant enough to warrant dismissal of this appeal, so we deny the respondents’ Motion to Dismiss.

The trial commissioner found that the claimant was employed by the respondent employer as a press operator for about 30 years, and worked in an area that exposed him to the noise of 40 or 50 presses. He filed a timely notice of claim for hearing loss on March 1, 1990. Dr. Koops examined the claimant in 1984 and again in 1993, and found that the claimant had a diminished hearing loss in each ear starting at the frequency of 2000 Hz. Based on the AMA formula, this translated to a 0% hearing loss. The claimant sought the use of another formula that took into account his hearing loss at the higher frequencies; however, the trier found that no evidence was presented regarding hearing loss other than the 0% rating given by Dr. Koops’ office. The commissioner found that the AMA formula was properly used based on the evidence presented, and that the claimant had no proof of permanent partial disability based on a binaural hearing loss. The claimant has appealed that portion of the trier’s decision.2

To begin, we note two relatively recent decisions by this board. In Ricigliano v. Rex Forge, 15 Conn. Workers’ Comp. Rev. Op. 142, 2190 CRB-6-94-10 (Jan. 18, 1996), appeal dismissed for lack of final judgment, A.C. 15655 (May 2, 1996), the claimant experienced significant high-frequency binaural hearing loss after years of being exposed to excessive occupational noise. Based upon AMA guidelines, however, the trier determined that the claimant had only sustained a .62% permanent partial hearing loss. The trier observed that the AMA guidelines provide for the measurement of hearing at or above 25 decibels, and up to a frequency of 3000 cycles per second. Id., 144. However, two doctors had found a high frequency hearing loss, and the trier found that the claimant would benefit from the use of a hearing aid. This board held that the trier’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.” Id., 145. In a dissent, Chairman Frankl stated that it was within the discretion of the trier to determine the weight to be given the AMA guidelines.

Nine months later, a different panel considered Blassingame v. Acme Steel Company, 16 Conn. Workers’ Comp. Rev. Op. 20, 3007 CRB-6-95-3 (Oct. 8, 1996), in which the facts were substantially the same as in Ricigliano. Again, the trier relied on a doctor’s opinion that the claimant had only a 1% binaural hearing loss based on the AMA formula, despite an undisputed high-frequency hearing loss. Recognizing the similarity of this case to Ricigliano, this board nonetheless stated that reversing the trier’s decision would not “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).” Overturning his ruling would have interfered with the trier’s duty to find facts amidst conflicting evidence, and to weigh the credibility of the evidence. See Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). “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 was affirmed without a written discussion by the Appellate Court. 45 Conn. App. 914 (1997) (per curiam).

The persuasiveness of the claimant’s reliance on Ricigliano in his brief is thus tempered by our decision in Blassingame. Although the claimant contended at oral argument that the facts of his case materially differ from Blassingame and Ricigliano in that the respondents offered no evidence to support the use of the AMA formula, the record does not mandate the result he seeks. The reports of Dr. Koops (Claimant’s Exhibit F) and Dr. Cavo (Claimant’s Exhibit B) both catalogue symptoms of high-frequency hearing loss. However, none of those reports prescribe a percentage of permanent impairment that the trier could have relied on in making an award. Instead, Dr. Cavo’s report states that the AMA formula can be applied here, leading to the conclusion “that there is no hearing impairment which can be determined on a percentage basis.” Susan Meissner, the audiologist for Drs. Koops and Cavo, also reported a 0% hearing loss based on her calculations from the claimant’s hearing test.

Dr. Cavo indeed indicated that he thought the higher frequency sounds were important, and suggested that “a much better judgment of a person’s disability [than the AMA formula] might be quite simply reached by having an experienced compensation referee look at the pattern of a person’s pure tone thresholds and make a rational call.” Nothing else was done, however, to persuade the trial commissioner to abandon the traditionally persuasive AMA guidelines. It is true that the AMA formula was not described in any detail during the proceedings below, but it does not appear that its specifications and characteristics were questioned by the claimant. Moreover, no contrary evidence was offered to demonstrate the percentage of permanent partial disability that the claimant would have based on his high-frequency hearing loss under some alternative test. The only figures available to the trier were the zero percent figures in the reports of Dr. Cavo and Susan Meissner. As it is the claimant who has the burden of proving permanent partial disability, not the respondent, the trier was certainly entitled to conclude here that the claimant had not proven entitlement to workers’ compensation benefits based on a binaural hearing loss.

The trial commissioner’s decision is therefore affirmed.

Commissioner Robin L. Wilson concurs.

AMADO J. VARGAS, COMMISSIONER, DISSENTING. I dissent. I believe that the time has come where, perhaps, we should not recognize the AMA guidelines with respect to certain hearing loss claims. This case is a perfect example. Here, common sense and fairness dictate that claimant has a hearing loss of greater than .62 percent.

Section 31-308 C.G.S. provides specific amounts of compensation for the loss of or loss of use of various body parts, including the sense of hearing. Where a claimant proves that he has lost the use of a certain percentage of his back, or knee, or hand, he is compensated accordingly. Where a claimant proves that he has lost a percentage of his hearing, the same result should follow. The claimant here proved that he had lost a portion of his hearing. In fact, he wore a hearing aid, which his employer purchased for him. Dr. Cavo testified that the AMA formula inaccurately reflected the nature of this situation, and that a better judgment of the claimant’s disability would result from the application of a different test. (Claimant’s Exhibit B). He stated that it was unfortunate that he had been “saddled” with the AMA formula.

I agree with this board’s prior decision in Ricigliano: under the circumstances of both that case and this one, the reliance of a trial commissioner on AMA guidelines resulted in a permanent partial disability assessment that unfairly and inaccurately reflects the claimant’s undisputed high-frequency hearing losses. I believe that the appropriate solution here would be to remand this matter to the trier for a determination of the claimant’s permanent partial hearing loss using a more balanced and appropriate test. The Workers’ Compensation Act provides an exclusive remedy to claimants for their work-related injuries. See § 31-284(a). By failing to award compensation to a claimant for an undisputed injury, we are depriving him of any remedy for his loss. Such a result is unjust, and inconsistent with the remedial and humanitarian spirit of the Act. See Gil v. Courthouse One, 239 Conn. 676, 682-83 (1997).

Accordingly, I dissent from the majority’s opinion.

1 The respondents also filed a petition for review in this case, but withdrew their appeal by letter dated April 4, 1996. The withdrawal was accepted by the Chairman on April 12, 1996. BACK TO TEXT

2 Portions of the trier’s award dealing with the claimant’s neck and right arm injury claim have not been contested by the claimant on appeal. BACK TO TEXT