BOARD No. 083118-90Commonwealth of Massachusetts Department of Industrial Accidents
Filed: December 31, 1996
REVIEWING BOARD DECISION
(Judges Fischel, Kirby, and Wilson)
APPEARANCES
Ronald D. Malloy, Esq., for the employee.
Thomas P. O’Reilly, Esq., for the insurer.
Paul M. Moretti, Esq., for the insurer on brief.
FISCHEL, J.
The employee appeals from the decision of the administrative judge in which his claims for benefits pursuant to G.L.c. 152, §§ 13, 30, and 36 were denied and dismissed. After review of the record, we affirm the decision of the administrative judge.
Charles Tucker, the employee, contracted meningitis at three years of age and this left him with a permanent left-sided hearing loss. (Dec. 4.) After graduating from high school in 1965, the employee worked as a machinist for Champion Lamp and Tempco Manufacturing. Id. He began his employment with General Electric in 1966 as a milling machine operator. In 1970, the employee began working in the “fifty-ton bay”, which was an area approximately seventy-five yards by forty yards, with a thirty-five foot ceiling. (Dec. 4.) There were nearly forty “winders” in this work area, each utilizing “impact guns” and jackhammer type equipment. (Dec. 5.)
When the machinery was running, which was often, conversation was impossible and the floor would actually vibrate due to the extensive noise. (Dec. 5.) The employee wore no hearing protection until 1973. Id. Thereafter, he wore hearing protection “consistently.” Id. The employee continued to work in the “fifty-ton bay” until 1983, when he became a probe machinist in the aircraft division. This position involves minimal noise exposure and the employee continues in this capacity today. Id. In June 1990, on Father’s Day, the employee experienced a sudden “idiopathic” hearing loss in his right ear while conversing on the telephone at his home. Id. Since then, the employee has been wearing a hearing aid. (Dec. 7.)
The employee filed a claim for benefits pursuant to G.L.c. 152, §§ 13, 30 and 36. The insurer resisted the claim and the matter was conferenced before an administrative judge. Thereafter, an order was issued denying the employee’s claim. The employee then appealed to a hearing de novo before the same administrative judge. (Dec. 2.)
At the time of the conference, the parties opted out of the impartial provisions of § 11A.452 Code Mass. Regs. 1.10(7). (Dec. 3.) Accordingly, the parties were allowed to file medical reports and to depose medical experts. Doctor Elisha H. Atkins, a board certified occupational and internal medicine specialist, was deposed on behalf of the employee and Doctor Robert A. Levine, a board certified neurologist with a specialty in otolaryngology, was deposed on behalf of the insurer. (Dec. 7-8.) Both depositions were entered into the evidentiary record. (Dec. 1.)
Doctor Atkins first examined the employee on April 28, 1992. (Dec. 7.) He diagnosed the employee as having a sensorineural hearing loss in both ears, with a worsening of symptoms in 1990. (Dec. 7.) Doctor Atkins opined that the worsening in symptoms was causally related to the employee’s exposure to noise in the workplace. (Dec. 7; Atkins Dep. 8-9.)
Doctor Levine also examined the employee on June 7, 1991 and October 21, 1992. He opined that the employee experienced sudden idiopathic sensorineural hearing loss of the right ear, with a chronic progressive sensorineural loss of the left ear. (Dec. 9.) The doctor further opined that the loss to the right ear was not work-related and that the loss to the left ear, although causal origin was less clear, was the result of non-work-related factors. (Dec. 9; Levine Dep. 11-12.)
The administrative judge did not find the medical opinion of Dr. Atkins to be persuasive and ultimately adopted the medical opinion of Dr. Levine, that the employee’s sudden hearing loss in the right ear was not work-related. (Dec. 8-9.) The judge found that the employee was not entitled to medical benefits pursuant to §§ 13 and 30, nor was the employee eligible for § 36 benefits for specific loss of function. Accordingly, the judge denied and dismissed the employee’s claim. (Dec. 12-13.) We have the case on the employee’s appeal.
The employee raises a number of issues on appeal. They lack merit because when the parties opted out of the § 11A impartial provisions and each offered their own medical expert’s opinion, the judge was free to adopt either opinion, in whole or in part.Amon’s Case, 315 Mass. 210 (1943). The medical evidence regarding the issue of causal relationship was in direct conflict. Adopting the medical opinion of Dr. Levine, the administrative judge found that the employee had experienced a sudden idiopathic loss in the right ear that was not work-related and that the employee suffered a flat loss across the board in all frequencies that was not typical of a noise induced hearing loss. (Dec. 9-10.) The choice of expert medical opinion was well within his realm of discretion. See Amon’s Case, supra.
The judge found that the employee did not sustain an injury arising out of and in the course of his employment. He found that the employee’s hearing loss was not causally related to his employment activities and that the employee was not entitled to medical benefits under §§ 13 and 30. Accordingly, the administrative judge denied and dismissed the employee’s claim. (Dec. 13.) After a review of the evidentiary record, we cannot say that the administrative judge was not justified in concluding that the employee did not sustain the burden of establishing his claim and, therefore, we do not disturb the decision on appeal. SeeWoolfall’s Case, 13 Mass. App. Ct. 1070 (1982). As the administrative judge provided the proper foundation for his decision, and as he was authorized to adopt all, none or part of the medical evidence presented, we affirm.
Additionally, the employee raises the issue that the employee’s loss of hearing is total for all practical purposes and, as a result, he is entitled to benefits pursuant to § 36. As the first issue is dispositive of this second issue, we do not reach it on appeal. The decision of the administrative judge is affirmed. So ordered.
_________________________ Carolynn N. Fischel Administrative Law Judge
_________________________ Edward P. Kirby Administrative Law Judge
_________________________ Holmes Wilson Administrative Law Judge
Filed: December 31, 1996