California Court of Appeals, First District, First Division
Pub. order 8/9/13
Workers’ Compensation Appeals Board WCAB Nos. ADJ1785165, ADJ2923303
Wai & Connor, LLP, and Steven W. Cox for Petitioner.
Pegnim & Ivancich Antioch and Thomas M. Pegnim for Respondent Michael Borman.
Dondero, Acting P.J.
Acme Steel, insured by Sentry Claims Service and Zurich North America, (Acme), petitions for a writ of review (see Lab. Code, §§ 5950, 5952; Cal. Rules of Court, rule 8.495), contending the Workers’ Compensation Appeals Board (WCAB) erred by awarding respondent Michael Borman 100 percent permanent disability without apportionment for prior hearing loss. We will grant the petition.
Michael Borman sustained continuous trauma injury to his ears (hearing loss), bilateral upper extremities, neck and head during the year prior to his last day at work for Acme as a steelworker on October 16, 2003. Borman was examined by three different Agreed Medical Examiners (AME), namely, Dr. John Devor (general orthopedics); Dr. Robert Ansel (neurology) and Dr. David Schindler (hearing loss). In his July 2004 report, AME Dr. Schindler apportioned hearing loss based on both non-industrial, degenerative causes and prior injury, opining that Borman’s 100 percent “binaural neurosensory hearing loss” was 60 percent due to “occupational factors, specifically noise induced hearing loss. Approximately 40 percent of Mr. Borman’s hearing loss is the result of non-occupational factors, particularly cochlear degeneration.” Dr. Schindler based this opinion on his proposed etiology of the hearing loss, stating that “The high-frequency progressive hearing loss is consistent with acouso-trauma of noise exposure as described both by Dr. Manace and the patient. The low frequency hearing loss seen at the 250 [hertz (Hz)] through 750 Hz position on the pure tone audiometry is not consistent with noise[-]induced hearing loss. This form of hearing loss is suspicious of a degenerative process of the cochlea. The etiology of that degenerative process is unknown but is most consistent [with] a congenital degeneration of the entire organ of Corti.” Dr. Schindler’s July 2004 report also notes Borman described how an explosion at the factory in December 1994 threw him 10 to 15 feet and knocked him out momentarily. Borman told Dr. Schindler he filed a workers’ compensation claim following the explosion and was rated at 22 percent disability due to hearing loss, and his hearing has gradually gotten worse since then.
In a later report prepared in June 2009, Dr. Schindler elaborated on apportionment of hearing loss. Dr. Schindler noted Borman was examined by Dr. David Manace in October 1994. Dr. Manace documented that the explosion experienced by Borman occurred in 1993, found Borman had “a 37.5 percent monaural loss in the right ear and a 37.5 percent monaural hearing loss in the left ear for a 37.5 percent binaural hearing loss at that time, ” and concluded Borman had a bilateral high-frequency hearing loss consistent with accumulated noise exposure. Dr. Manace recommended Borman should be fitted with hearing aids. Dr. Schindler opined that the “further hearing loss that occurred after Dr. Menace’s report of 1994 was the result of both cochlear degeneration in the lower frequencies and persistent noise exposure in the higher frequencies.” Furthermore, Dr. Schindler reiterated his conclusion that Borman had “a 100 percent hearing loss... apportioned... as 60 percent due to noise-induced hearing loss and 40 percent due to other factors. The noise-induced hearing loss... includes the explosion component that was found by Dr. Menace, ” adding, “I did not apportion Dr. Menace’s portion of the hearing loss.”
In July 2012, the Workers’ Compensation Administrative Law Judge (WCALJ) issued a “Findings and Award” and “Opinion on Decision” following proceedings held in April 2012 at which Borman was the only witness. The WCALJ found Borman’s injury ratable under the post-2004 Permanent Disability Ratings Schedule. The WCALJ also found Borman a straight-forward and credible witness, noting that during testimony he “clearly had difficulty understanding questions and had to face his questioners directly in order to ‘lip read’ as well as listen. His cochlear implants have improved his hearing but his hearing... is quite limited[, ]... particular[ly]... in crowded or noisy environments, and [he] cannot function effectively on the phone.” The WCALJ found Borman effectively rebutted any Diminished Future Earnings Capacity (DFEC) and showed 100 percent loss of earning capacity entitling him to permanent and total disability. The WCALJ based the latter finding on expert vocational testimony proffered by Borman showing there was no job in the open labor market that could accommodate Borman’s “difficulty with oral communications, limitations with use of the upper extremities, limited mobility, need for daily narcotic medication, rests and serious headaches.” Additionally, the WCALJ found that “Labor Code section 4664 is not pertinent as prior to the instant cumulative trauma injury there was no earnings loss due to the prior award of permanent disability for hearing loss, ” reasoning that “Borman continued to work [after] the prior award for prior hearing loss, [and his] hearing loss progressed to the point where he required implants, which... have severe limitations.”
In August 2012, Acme sought reconsideration of the award, contending solely that the WCALJ exceeded her powers by failing to apportion injury pursuant to section 4663 because there was evidence showing hearing loss was 40 percent non-industrial and 37.5 percent from a prior hearing loss.
In November 2012, the WCALJ issued her report and recommendation on petition for reconsideration. The WCALJ noted Acme “essentially claims that I am bound to follow [AME’s] and may not find the schedule rebutted by wage loss vocational testimony.” The WCALJ stated she was not bound by the findings of the AME’s “when there is convincing vocational testimony regarding loss of earning capacity.” In this regard, the WCALJ relied on expert testimony that “the appearance of the cochlear implants themselves act as a bar to employment” due the “prominent [appearance] on both sides of the head, ” which is “still quite an uncommon sight.” The WCALJ found that the “ ‘new’ element of the deterrent appearance of the contacts and wires and shaved head spots associated with the implant, combined with the various medical limitations renders the Applicant unemployable and thus he has a complete loss of earning capacity.” In January 2013, the WCAB summarily denied Acme’s petition for reconsideration “for the reasons stated by the [WCALJ] in said Opinion and Report, which we adopt and incorporate....”
“When a workers’ compensation decision rests on the Board’s erroneous interpretation of the law, the reviewing court will annul the decision. [Citation.] The Board’s conclusions on questions of law are reviewed de novo.” (Benson v. Workers’ ...