International Paper Company v. William D. Cothren

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOSEPHINE LINKER HART

DIVISION I

INTERNATIONAL PAPER COMPANY

APPELLANT

V.

WILLIAM D. COTHREN

APPELLEE

CA02-135

October 30, 2002

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[No. E304025]

AFFIRMED

Appellant International Paper Company appeals from the Arkansas Workers' Compensation Commission's determination that although appellee, William Cothren, sustained a 0% impairment to his hearing, appellant was required to provide a hearing amplification device to appellee because it was necessary for the treatment of the his high-frequency hearing loss. For reversal, appellant argues that the Commission's findings are not supported by substantial evidence. We disagree and affirm.

Appellee began working for appellant in 1958 and remained employed with appellant during the pendency of this claim, which was filed in March 1993. While employed, appellee was administered several audiograms that measured his hearing capability, including audiograms in 1972, 1974, 1980, 1981, 1982, 1988, 1990, and 1992.

On June 7, 1993, Dr. John Dickins reported that appellee had been exposed to

occupational noise for a number of years, and with the exception of the preceding few years, he had not used hearing protection. Further, Dr. Dickins stated that appellee "had a substantial loss in the mid to low tones" and "the high frequency loss that was there previously remains stable," and appellee "needs [to give serious] consideration to [being fitted] with a hearing aid." In a letter dated September 3, 1999, Dr. Dickins stated that appellee "has fairly normal hearing through 2000 Hz in both ears and then a moderate to severe high frequency drop-off. This high frequency drop-off is enough to interfere with his day-to-day speech discrimination scores." Further, Dr. Dickins noted that appellee's hearing loss "almost in totality was present at the time on the first record ... in 1981." Dr. Dickins's letter also stated that it was appellee's "initial baseline that is most characteristic of his noise induced loss and is enough that it is creating more and more problems with him functioning on a day-to-day level and continues to create severe problems with his tinnitus...noise induced hearing loss causes severe tinnitus in many cases." Dr. Dickins went on to note that appellee "needs hearing aids and needed a hearing aid in 1981 to help him function in a daily basis and help suppress his tinnitus."

According to the deposition of Dr. Joseph Sataloff, hearing loss caused by occupational noise will occur within the first ten to fifteen years of exposure. Further, Dr. Sataloff testified that a person would not have functional disability in his everyday life if his hearing was twenty-five decibels or less in the ranges of 500 hertz, 1000 hertz, and 2000 hertz.

On October 5, 2000, the administrative law judge (ALJ), using the A.M.A. Guides,found that appellee had suffered a 0% anatomical impairment to his hearing as a result of exposure to noise at the workplace. Further, the ALJ disallowed an award of a hearing apparatus because appellee had sustained a 0% hearing impairment. On appeal from the ALJ, the Commission found that a preponderance of the evidence established that appellee had sustained a 0% hearing impairment that was causally related to his employment. However, the Commission disagreed with the ALJ and found that appellee "sustained sufficient high frequency work-related hearing loss so that hearing amplification is reasonably necessary for treatment of claimant's work-related, noise-induced, high frequency hearing loss." From that order comes this appeal.

The Commission's finding that appellee sustained a 0% impairment to his hearing using the A.M.A. Guides was not appealed by appellee. Further, any argument that an award of benefits was precluded by the statute of limitations was neither raised nor ruled upon by the ALJ or the Commission. Therefore, we do not address either point on appeal. The sole issue on appeal is whether the Commission, having found that appellee suffered 0% hearing impairment, erred in finding hearing amplification devices are reasonably necessary for treatment of appellee's high frequency hearing loss and, therefore, hearing aides must be provided by appellant.

On appeal, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission and will affirm the Commission's decision if it is supported by substantial evidence. Liggett Constr. v. Griffin, 4 Ark. App. 247, 629 S.W.2d 316 (1982). On review of workers' compensation cases, the question is not whetherthe evidence would have supported findings contrary to the ones made by the Commission; there may be substantial evidence to support the Commission's decision even though we might have reached a different conclusion if we sat as the trier of fact. See Privett v. Excel Specialty Products, 76 Ark. App 527, 69 S.W.3d 445 (2002).

Act 796 of 1993 applies to all injuries incurred after July 1, 1993. ALCOA v. Rollon, 76 Ark. App. 240, 64 S.W.3d 756 (2001). However, the claim in the present case was filed prior to July 1, 1993; therefore, we must liberally construe the workers' compensation statutes. See id. Under the law applicable at the time of the injury, an "employer shall promptly provide for an injured employee medical, surgical, hospital, and nursing service ... and other apparatus as may be reasonably necessary for the treatment of the injury received by the employee." Ark. Stat. Ann. Sec. 81-1311 (Repl. 1976). What constitutes reasonable and necessary treatment under this statute is a question of fact for the Commission. Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984).

Based on Dr. Dickins's reports, the Commission found that a hearing apparatus provided by appellant was reasonable and necessary. Appellant asserts that the appellee's 1981 audiogram showed that he had hearing of twenty-five decibels or better in ranges from 500 to 2000 hertz. Thus, appellant contends the audiogram established that appellee was not hearing impaired and, therefore, appellant should not be required to provide hearing aids. According to appellant, requiring the employer to purchase a hearing aid for appellant despite the 0% hearing impairment rating is the same as an employee asking for corrective lenses when the employee has 20/20 vision.

We disagree and compare this case to Wright, where the injured employee requested a change of physicians after being treated for a compensable eye injury. In Wright, this court found that substantial evidence existed to support the Commission's order that another examination was reasonable and necessary although the employee had received a medical report that his vision was 20/20. Here, as in Wright, there is substantial evidence that, despite appellee having 0% impairment, the devices were needed to facilitate his hearing in the high-frequency range. Based on Dr. Dickins's report, we cannot say that the Commission's decision was not supported by substantial evidence. Moreover, Arkansas Statutes Annotated Sec. 81-1311 (Repl. 1976) clearly intends for the employer to provide an injured employee with all medical services reasonably necessary in connection with a compensable injury. Furthermore, under our workers' compensation law, the injury itself is the basis for determining whether treatment is reasonably necessary, not the existence or the extent of any impairment. Thus, we affirm.

Affirmed.

Jennings and Griffen, JJ., agree.