Opinion
No. 51558-6-I.
Filed: February 2, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-2-22905-1. Judgment or order under review. Date filed: 11/21/2002.
Counsel for Appellant(s), William D. Hochberg, Attorney at Law, 222 3rd Ave N, Edmonds, WA 98020-3109.
Counsel for Respondent(s), Anastasia R. Sandstrom, Attorney at Law, 900 4th Ave Ste 2000, Seattle, WA 98164-1076.
Susan J Holm, Seattle City Attorneys Office, 600 4th Ave 4th Floor, PO Box 94769, Seattle, WA 98124-4769.
The issue in this case concerns when Tom Spyridis' occupational hearing loss became partially disabling for purposes of RCW 51.32.180(b). We conclude the undisputed medical testimony establishes his hearing loss was partially disabling in March 1979 when he stopped working for the City of Seattle (the City), rather than in 1999 when an audiogram test was done and his hearing loss was diagnosed. We affirm the trial court's order of summary judgment and the Department of Labor and Industries' July 31, 2001 order.
FACTS
The facts are taken from the parties' `Stipulated Facts and Jurisdictional History.' Certified Appeal Board Record (RP) at 109-121.
Spyridis worked for the City of Seattle as a sound technician at the Seattle Center from 1964-1979. He retired in March 1979. As a sound technician at the Seattle Center, Spyridis set up and operated sound equipment for different programs at the Opera House, the Coliseum, the Arena and the Exhibition Hall. He worked at approximately 500-600 events including opera, ballet, and symphony rehearsals and concerts, and rock concerts featuring Elvis Presley, the Beatles and the Beach Boys. During the time he worked for the City, Spyridis did not use hearing protection and he and his wife noticed a gradual hearing loss.
He monitored and adjusted the sound during performances and frequently had to increase output volumes so the music could be heard over screaming fans.
After retiring from the City in 1979, Spyridis became a self-employed general contractor. As a general contractor, he was exposed to some noise but it was not as loud or for as long as when he worked as a sound technician. When Spyridis became self-employed, he did not elect to obtain coverage under the Industrial Insurance Act. As Spyridis' last insured employer, the City acknowledges it is responsible for his worker's compensation benefits claim for occupational hearing loss. The City also accepts responsibility for any age-related hearing loss Spyridis may have suffered after he retired.
He also did not use hearing protection while working as a general contractor.
Spyridis first sought medical treatment for his hearing loss in 1999. At that time, an audiogram was performed and his level of hearing loss was measured. Another audiogram was performed in March 2000 by Dr. Burgoyne, a board certified otolaryngologist. Dr. Burgoyne diagnosed Spyridis with a permanent 12.19 percent binaural hearing loss.
In June 2000, Spyridis filed a worker's compensation claim for benefits based on hearing loss caused by occupational noise exposure. The Department of Labor and Industries (the Department) ordered the City to pay permanent partial disability benefits according to the March 1979 schedule. Spyridis filed an appeal with the Board of Industrial Insurance Appeals (the Board), and requested benefits according to the 1999 schedule. Spyridis and the City agreed to submit the case to the Board on stipulated facts. The parties' `Stipulated Facts and Jurisdictional History' describes Spyridis' noise-exposure employment history as a sound technician for the City and as a self-employed contractor. The agreed facts also set forth the medical testimony. According to the stipulation, Dr. Burgoyne would testify `on a more probable than not basis' that:
Spyridis protested that decision and the Department affirmed the order.
(a) Based on an audiogram performed by Dr. Burgoyne on March 22, 2000, the claimant has a 26.25% hearing loss in the left ear and a 9.375% loss in the right ear;
(b) That Mr. Spyridis suffered a permanent binaural hearing loss of 12.19%, at least part of which is as a result of his work for the City of Seattle;
(c) There [sic] no medically reliable means to distinguish Mr. Spyridis' work-related hearing loss from hearing loss resulting from any other cause, including presbycusis, or age-related hearing loss; and
(d) That Mr. Spyridis' hearing loss due to occupational noise exposure while working for the City of Seattle did not increase after he left the City's employ on March 9, 1979.
RP at 111-112.
The Board concluded, `[t]he key to the determination of partial disability is the existence of a valid audiometric test. Until that time, although the worker may be aware of problems with hearing, the key element of partial disability is not present,' and reversed the Department's decision. The Board ordered benefits based on the 1999 schedule when the audiogram was performed and Spyridis' partially disabling hearing loss was first diagnosed.
RP at 19.
The City appealed the Board's decision to superior court and Spyridis filed a motion for summary judgment. Spyridis argued that, as a matter of law, the 1999 benefits schedule applied to his claim because his disability was not diagnosed until 1999. The court denied Spyridis' summary judgment motion based on Dr. Burgoyne's uncontroverted medical opinion that Spyridis' noise-related hearing loss existed in 1979 and `did not worsen after he left the City's employ on March 9, 1979.' The court affirmed the Department's July 31, 2001 decision that required the City to pay benefits according to the 1979 schedule. Spyridis appeals.
Clerk's Papers (CP) at 91.
DISCUSSION
For an appeal of a summary judgment order where no facts are in dispute and the only issue is a question of law, the standard of review is de novo. Dep't of Labor Indus. v. Fankhauser, 121 Wn.2d 304, 308, 849 P.2d 1209 (1993). Interpretation of RCW 51.32.180 is a question of law subject to de novo review. Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 175-76, 4 P.3d 123 (2001). The parties stipulated to the facts in this case and are bound by those facts. Reilly v. State, 18 Wn. App. 245, 253, 566 P.2d 1283 (1977).
Compensation for disability due to occupational disease is provided by RCW 51. There is no dispute that Spyridis is partially disabled and entitled to benefits. The rate of compensation is determined by statute, RCW 51.32.180(b). RCW 51.32.180(b) provides in pertinent part that: [F]or claims filed on or after July 1, 1988, the rate of compensation for occupational diseases shall be established as of the date the disease requires medical treatment or becomes totally or partially disabling, whichever occurs first, without regard to the date of the contraction of the disease or the date of filing the claim.
Italics added.
Under RCW 51.32.180(b), the rate of compensation Spyridis is entitled to is determined by either the date he first sought medical treatment or the date his hearing loss became partially disabling, whichever occurred first. There is no dispute that Spyridis first sought medical treatment in 1999. The only issue is when his hearing loss became partially disabling.
Spyridis argues that the date hearing loss becomes partially disabling is the date of a valid audiogram and medical diagnosis. Spyridis claims his hearing loss was not partially disabling until 1999 when an audiogram was performed and his disability was diagnosed.
Under WAC 296-20-19020(1)(b), impairment for partial loss of hearing is rated using a `nationally recognized impairment rating guide.' The Department uses the American Medical Association's Guides to the Evaluation of Permanent Impairment to rate hearing loss. The Guides provides that hearing loss is measured by testing hearing ability at four frequencies basic to speech intelligibility and hearing loss is established when hearing levels for each ear at all four frequencies averages more than 25 decibels (dB). The 25dB level is therefore the threshold for compensable hearing loss under RCW 51. Hearing levels averaging 25dB over the four frequencies corresponds to a zero percent (0%) binaural hearing impairment, so any percent of binaural hearing loss is compensable.
Spyridis relies on the Board's decision in In re Eugene Williams, BIIA Dec. 95 3780 (Significant Decision, 1998), to support his position that hearing loss only becomes partially disabling under RCW 51.32.180(b) on the date a contemporaneous audiogram shows hearing loss greater than 25dB and the hearing loss is confirmed by a medical opinion. The Board's decision in Williams does not support Spyridis' position. The Board in Williams concluded that partial disability is established when a claimant has knowledge of hearing limitations and a valid audiogram, confirmed by medical expert testimony, shows the claimant's hearing loss exceeds the 25 dB threshold and is partially disabling. The Board did not require a contemporaneous audiometric test to establish partial disability; it only required that the validity of an audiometric test be established by expert medical opinion.
As provided under RCW 52.51.160, the Board publishes decisions it designates as `significant.' Though the Board's interpretation of the RCW 51 is not binding on this court, the Board's decisions are persuasive authority. Weyerhaeuser v. Tri, 117 Wn.2d 128, 138, 814 P.2d 629 (1991) (referring to a significant decision of the Board). See also Martini v. Employment Security Dept., 98 Wn. App. 791, 795, 990 P.2d 981 (2000).
Spyridis also cites another Board decision, In re William Brougham, in support of this argument. Brougham has not been designated as a significant decision and therefore has no precedential value. The same is true for other Board decisions Spyridis cites and relies on, including In re William McGraw, In re Harold Sells, and In re Robert Shelton.
Spyridis also argues that whether a condition is disabling can only be determined based on medical evidence. In support of this argument he cites WAC 296-20-200(2), Brannan v. Dep't of Labor and Indus., 104 Wn.2d 55, 700 P.2d 1139 (1985), and In re Michael McGoff, BIIA Dec. 90 1897 (Significant Decision, 1991). We agree this authority requires expert medical evidence to support disability claims. But based on the stipulated testimony of Dr. Burgoyne, that requirement is met in this case. Furthermore, neither the WAC provision nor Brannan or McGoff addresses specified disabilities like hearing loss; they are limited to the requirements applicable to rating unspecified disabilities. See WAC 296-20-19010 (distinguishing two types of permanent partial disabilities: specified and unspecified).
The validity of an audiometric test should be established by medical opinion that confirms the reliability of the test in terms of its administration and results. In light of the significant financial impact that flows from the date selected for the schedule of benefits, we can require nothing less than a valid and reliable audiometric test as confirmed by medical testimony.
Because there is a valid 1999 audiogram and medical diagnosis of his disability, this requirement of Williams is met.
Based on the Supreme Court's decision in Boeing Co. v. Heidy, 147 Wn.2d 78, 51 P.3d 793 (2002), we also reject Spyridis' argument that RCW 51.32.180(b) requires `partially disabling hearing loss' to be determined by the date an audiogram is performed. In Heidy, the Court addressed the issue of whether a worker's knowledge of hearing loss is a prerequisite under RCW 51.32.180(b) to determine the applicable schedule of benefits. The Heidy Court emphasized that the language of RCW 51.32.180(b) was unambiguous and the legislature did not include consideration of the worker's knowledge of hearing loss to determine when the date of partial disability is established. The Court unambiguously rejected an interpretation of the statute incorporating an additional requirement to establish the date of permanent partial disability. The Court stated: `RCW 51.32.180(b) is clear — a worker's knowledge of his or her disabling condition does not affect when the rate of compensation is established.' Heidy, 147 Wn.2d at 88. We also refuse to construe RCW 51.32.180(b) to incorporate an additional requirement that partially disabling hearing loss be determined as of the date of an audiogram. Nothing in the caselaw, Williams, or RCW 51.32.180(b), precludes expert medical testimony that establishes partially disabling hearing loss before the date of an audiogram.
The Board's April 2002 decision that benefits should be determined based on the 1999 schedule was made without the benefit of the Court's August 2002 decision in Heidy.
The court will not construe a statute that is unambiguous, nor will it add language to an unambiguous statute. Davis v. State ex rel. Department of Licensing, 137 Wn.2d 957, 963-64, 977 P.2d 554 (1999); State v. Taylor, 97 Wn.2d 724, 728, 649 P.2d 633 (1982); Heidy, 147 Wn.2d at 88.
It is typical is hearing loss claims for medical experts to testify about which of multiple audiograms best reflects the level of hearing loss that can be attributed to occupational noise exposure. See, e.g., Heidy, 147 Wn.2d at 87 (the credibility of a particular audiogram is a fact-based issue that goes to the weight and credibility of evidence).
Spyridis argues that, although he `suffered from hearing loss when he retired,' there is no medical evidence that shows he had disabling hearing loss in 1979 and, therefore, no legal basis to award benefits according to the 1979 schedule.
App. Br. at 12-13.
The undisputed medical testimony defeats Spyridis' argument. Based on the stipulation, Dr. Burgoyne's testimony establishes that at least part of the 12.19% permanent binaural hearing loss was caused by noise exposure when he worked for the City and the hearing loss due to noise exposure during his work for the City did not increase after he retired. According to Dr. Burgoyne, part of the hearing loss measured in 1999 was present, i.e., some portion of damage to his hearing was complete, in 1979 and Spyridis' hearing loss was disabling when he stopped working for the City and ceased his exposure to injurious noise.
Spyridis claims the hearing loss measured in 1999 could qualify as partially disabling solely because of the additional effects of age-related hearing loss and not the injury caused by his job with the City. But this argument is also contrary to the undisputed medical expert testimony. The stipulated medical expert testimony states that at least part of his hearing loss was present prior to his 1979 retirement and there is no medically reliable means in this case to differentiate age-related hearing loss from noise-related hearing loss.
Moreover, the City agreed to pay benefits for all of Spyridis' hearing loss, without regard to causation.
Finally, Spyridis relies on Dep't of Labor and Indus. v. Landon, 117 Wn.2d 122, 123-24, 814 P.2d 626 (1991) to argue that awarding benefits based on the 1979 schedule creates an improper last injurious exposure rule. The disability in Landon was asbestosis. Asbestos-related diseases typically develop after long periods of latency. See, e.g., Landon, 117 Wn.2d at 125. Those diseases are progressive, taking many years after the harmful exposure to manifest. As explained in Heidy, hearing loss is not like asbestosis. Heidy, 147 Wn.2d at 89. Hearing loss caused by occupational noise does not increase after noise exposure ends. Here, the medical testimony established the date of disability as the date of last injurious exposure. Nothing in Landon precludes an expert medical opinion that the date of disability coincides with the date of the last injurious exposure. We affirm the trial court's order of summary judgment and the Department of Labor and Industries' July 31, 2001 order.
See Washington State Dep't of Labor Indus., Industrial Insurance Division, Claims Administration Policy Manual, Interim Policy 14.45 (November 15, 1998), attached to the Stipulated Facts and Jurisdictional History as Exhibit 2. RP at 120.
Because we affirm the decision of the trial court, Spyridis is not entitled to attorney fees under RCW 51.52.130.
COX and BAKER JJ, concur.