Coleman, Jerry v. Armstrong Hardwood Flooring

FILED

November 27.2017

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS TN COURT OF

AT JACKSON WORKERS’ _

COMPENSATION

CLAIMS

JERRY COLEMAN, ) Docket No. 2015-07-0445

Employee, ) 7:00 FM.

Vv. )

ARMSTRONG HARDWOOD FLOORING, ) State File No. 97922-2015

Employer, )

And )

AGRI GENERAL INS. CO., ) Judge Allen Phillips

Insurance Carrier. )

COMPENSATION HEARING ORDER

Mr. Coleman claimed noise exposure at Armstrong caused him to suffer hearing

loss. Armstrong claimed he did not prove the alleged loss by a preponderance of the

evidence. Alternatively, it disputed the severity of the loss. The Court heard these

disputed issues at a Compensation Hearing on November 2, 2017, and holds Mr.

Coleman established a compensable hearing loss that resulted in a permanent partial

disability of 14% to the body as a whole.

History of Claim

The Court conducted an Expedited Hearing on May 31, 2016. The Court found

Mr. Coleman came forward with sufficient evidence to establish he likely would prevail

at a hearing on the merits regarding the provision of medical benefits, and it ordered that

Armstrong provide him a panel of physicians.'

Armstrong provided a panel of otolaryngologists from which Mr. Coleman chose

' The Court takes judicial notice of the evidence offered at the Expedited Hearing as set forth in its

Expedited Hearing Order. See Hughes v. New Life Dev. Corp., 387 S.W.3d 453, 457 n.1 (Tenn. 2012)

(holding a court may take judicial notice of facts established at an earlier proceeding in the same action).

The Court did not address permanent disability at the Expedited Hearing and did not address the causation

issue under a preponderance of the evidence standard. The parties may obtain an audio recording of the

Expedited Hearing upon request of the Clerk.

Dr. Christopher Hall. Dr. Hall saw Mr. Coleman on August 30, 2016, and noted both Mr.

Coleman’s “exposure to industrial noise [for] 18 years” and his “recurrent middle ear

infections on the right.” Audiometric testing revealed Mr. Coleman had a “severe... to

moderate” sensorineural hearing loss on the left and a more severe “mixed hearing loss”

on the right, characterized by both a sensorineural and “conductive” loss. Dr. Hall stated

the sensorineural losses were more likely than not related to “workplace noise exposure”

but that the conductive loss was not. He recommended an MRI to evaluate the

“asymmetry” of the hearing losses and a trial of hearing aids. Based on the audiometric

testing, Dr. Hall assessed a permanent impairment of 80.6% to the right ear and a 41.2%

impairment to the left. These ratings combined to a binaural hearing impairment of

47.8% and equaled 17% impairment to the “whole person.”

Dr. Hall saw Mr. Coleman for a second time on March 28, 2017. He noted the

MRI revealed age-related changes to Mr. Coleman’s brain but that it provided no

explanation for the asymmetrical hearing losses. Dr. Hall again attributed the

sensorineural losses to Mr. Coleman’s “noise exposure [at Armstrong]” absent any other

such exposure.

In June 2017, Mr. Coleman asked Dr. Hall to complete a “Standard Form Report

For Industrial Injuries” (C-32). Dr. Hall noted the history of noise exposure and recurrent

right ear infections. He confirmed the 17% whole person impairment rating under the

relevant sections of the American Medical Association (AMA) Guidelines and stated the

following as to causation: “The left ear loss is more likely than not related to noise

exposure. The right ear has mixed loss. It is appropriate to attribute the same percentage

of the right ear loss as the left to noise, but the additional right loss is not likely work

related.”

Armstrong objected to Mr. Coleman’s proposed use of the C-32 and cross-

examined Dr. Hall by deposition.? Armstrong asked Dr. Hall to review Mr. Coleman’s

audiometric tests performed over the years of his employment. Dr. Hall noted the tests

revealed a “significant change” for the “worse” in Mr. Coleman’s hearing between 2013

and 2015, the period immediately before his retirement. Dr. Hall said “most people”

experience hearing loss as they age but, in Mr. Coleman’s case, he “can’t say what his

audiogram would be [without exposure to noise].” Dr. Hall confirmed some studies had

linked blood pressure and cholesterol medications, like those Mr. Coleman used, to

hearing loss but did not attribute any of Mr. Coleman’s hearing loss to medication-use.

Dr. Hall believed Mr. Coleman’s conductive hearing loss occurred sometime

* Dr. Hall would later explain that a conductive loss differs from a sensorineural loss in that it is caused by

damage to the eardrum, scarring from infection, and/or degeneration of the hearing bones of the inner ear.

> Tennessee Code Annotated section 50-6-235(c)(2) (2017) allows a party to object to a C-32 and

schedule the physician’s deposition for purposes of cross-examination. Additionally, the Court finds Mr.

Coleman’s use of a dated C-32 form is not germane to the outcome.

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between 1999 and 2009 based upon Armstrong’s testing. He “would call into question”

whether the conductive loss was related to noise exposure, instead attributing it to either

recurrent ear infections or exposure to carbon monoxide, neither of which were work-

related. Nevertheless, when “keeping the conductive” component in the total rating, Mr.

Coleman’s overall hearing loss results in a 17% “whole person” impairment. He

maintained, as he stated in the C-32, that he could apply the left ear rating of 41.2% for

sensorineural loss to the right ear and, if he did so, Mr. Coleman’s total impairment of

both ears would equal 14% to the body.

At the hearing, Mr. Coleman’s counsel argued that Dr. Hall cannot “parse or

apportion” his impairment rating per the AMA Guides. Thus, this Court should consider

that Armstrong “took Mr. Coleman as it found him,” and look to the cumulative

“functional damage” to Mr. Coleman’s hearing from both noise exposure and the non-

related conductive component. Thus, counsel asserted Mr. Coleman has 17% impairment

to the body as a whole and is entitled to increased benefits based upon his not returning

to work, his age, and his education level.

Armstrong elicited testimony from its former Human Resources Manager, who

disputed the degree of noise exposure. It introduced voluminous records documenting

Mr. Coleman’s past treatment for ear infections, sinus issues, high blood pressure, and

high cholesterol in support of its position that those issues contributed to, or caused, his

hearing loss.* Armstrong further asserted that Dr. Hall’s 17% impairment rating was

completely void because he could not “delineate” between the losses attributable to noise

and the losses attributable to other causes.

Armstrong proposed an impairment rating of 6.9% to the body as whole, the

amount of whole body impairment attributable to Mr. Coleman’s left-ear hearing loss

when translating the 41.2% left ear rating to the body. It argued that Dr. Hall cannot use

the left ear sensorineural impairment to rate the right ear because he cannot say what part

of the left ear loss resulted from noise exposure. Accordingly, the Court should consider

that only the left-ear hearing loss is work-related.

“ Prior to the Compensation Hearing, Armstrong requested the Court issue a subpoena for all of Mr.

Coleman’s records from The Jackson Clinic. Anticipating production of irrelevant documents “that have

nothing to do with [Mr. Coleman’s] injury,” the Court entered an “Order on Filing of Medical Records”

on October 13 which provided that the parties “redact any such records having no bearing on the case.”

See, Love v. Delta Faucet, 2016 TN Wrk. Comp. App. Bd. LEXIS 45 (Sep. 19, 2016). Thereafter, on

October 18, Armstrong filed 139 pages of records from The Jackson Clinic, which the Court reviewed

page by page. Finding irrelevant records, the Court separated those having no relevance to hearing loss,

such as, but not limited to, copies of correspondence, a bladder scan, x-ray reports of the elbow and knee,

and multiple blood and urine test reports. Armstrong continued to contend the records should be admitted

and made an “offer of proof.” After taking the dispositive issues under advisement, the Court finds none

of the records made a part of Armstrong’s offer of proof have any relevance to a hearing loss claim and

marks those records for identification only.

The parties stipulated that Mr. Coleman’s compensation rate was $346.04 and that

he voluntarily retired from Armstrong.”

Findings of Fact and Conclusions of Law

Standard Applied

At a Compensation Hearing, Mr. Coleman must establish all elements of his claim

by a preponderance of the evidence. Tenn. Code Ann. § 50-6-239(c)(6) (2017).

I) Causation

Mr. Coleman must first establish his hearing loss arose primarily out of and in the

course and scope of his employment at Armstrong. “An injury ‘arises primarily out of

and in the course and scope of employment' only if it has been shown by a preponderance

of the evidence that the employment contributed more than fifty percent (50%) in causing

the injury, considering all causes.” Jd. at § 50-6-102(14)(B). This contribution must be

established to a reasonable degree of medical certainty, which means that, in the opinion

of the physician, it is more likely than not considering all causes. Jd. at (14)(D).

Here, Dr. Hall checked “yes” in the section of the C-32 form that asked if Mr.

Coleman’s hearing loss had “more probably than not arose out of his employment” when

“considering the nature of [his] occupation and medical history.”” He hand-wrote that the

left-ear hearing loss was “more likely than not related to noise exposure” while the right-

ear hearing loss, though “mixed,” carries the same percentage of noise-related hearing

loss as the left. This evidence supports a finding that Mr. Coleman suffered a noise-

related hearing loss at Armstrong.

Moreover, the Court finds nothing in Armstrong’s cross-examination to refute Dr.

Hall’s causation opinion. To the contrary, he testified Mr. Coleman reported no

significant noise exposure apart from Armstrong and that the audiometric testing revealed

a telltale “notch,” present in both ears, consistent with a noise-induced sensorineural

hearing loss. Further, serial testing at Armstrong revealed a “significant change” for the

worse in Mr. Coleman’s hearing between the start of his last tenure at Armstrong in 2013

and his retirement in 2015. More importantly, Dr. Hall’s deposition testimony is clear

° One day prior to the Compensation Hearing, Armstrong moved to dismiss Mr. Coleman’s case because

he did not file a witness or exhibit list. It then cited Practices and Procedures Rule 7.03 regarding the

requirement of filing a pre-hearing statement within ten days of a scheduled Compensation Hearing. Mr.

Coleman countered that he filed Dr. Hall’s deposition and a brief on October 19. The Court notes neither

party filed a pre-hearing statement on the form provided by the Court, but it also finds the parties did

timely submit all medical evidence and briefs. Any failure to use the provided form is moot. Further, the

Court rejects Armstrong’s argument that the Court should prevent Mr. Coleman from testifying on his

own behalf because he did not “disclose” himself.

that he considered “all causes” of Mr. Coleman’s hearing loss when he pointed to prior

ear infections and a possible carbon monoxide exposure in arriving at his causation

opinion regarding the right ear.

The Court rejects Armstrong’s argument that Resh v. Bldg. Materials Corp., No.

M2009-00028-WC-R3-WC, 2010 Tenn. LEXIS 141 (Tenn. Workers’ Comp. Panel

March 11, 2010) supports its position. There, the medical expert “acknowledged that he

was unable to distinguish what part of [employee’s] hearing loss may have been caused

[by non-related and work-related factors.”] Jd. at *19. Here, Dr. Hall did distinguish the

portion of the hearing loss that was work-related, and the Court holds Mr. Coleman

established by a preponderance of the evidence that he sustained a sensorineural hearing

loss to both ears due to noise exposure at Armstrong.

2) Extent of permanent disability

In Baumgardner v.United Parcel Service, 2017 TN Wrk. Comp. App. Bd. LEXIS

63, at *10-11 (Oct. 18, 2017), the Appeals Board noted that “the method of calculating

permanent partial disability as set forth in Tennessee Code Annotated section 50-6-207 is

dependent on the existence of a permanent medical impairment rating” and, “absent

[such] rating, there is no statutory mechanism by which a trial court can award permanent

partial disability benefits.” Reading this in context of the definition of injury, it is

apparent that Mr. Coleman must first establish a relationship of his hearing loss to his

work and then establish the degree of impairment for the loss.

Mr. Coleman argued that Dr. Hall’s 17% rating to the body as a whole is correct

because it considers the total “functional loss” of hearing as required by the AMA

Guides. The Court agrees that Dr. Hall testified the conductive loss is “a part of’ [Mr.

Coleman’s] binaural disability. However, Dr. Hall testified immediately thereafter that

“the conductive may not be related from [sic] work.” He later said he would “call into

question” whether the conductive loss was related to noise. These statements doom Mr.

Coleman’s argument for a 17% permanent partial disability. Though he may have lost

that much function, he did not prove the loss was work-related, and the Court cannot

award him benefits for any portion of a disability that is not work-related.

Instead, the Court finds Dr. Hall attributed 14% impairment to the body as a whole

to noise exposure. In its cross-examination, Armstrong asked Dr. Hall to use the 41.2%

impairment to the left ear and extrapolate that rating to the right. Dr. Hall did so and

calculated a binaural impairment of 14% under the AMA Guides. Mr. Coleman

questions the propriety of such “parsing,” yet his questioning of Dr. Hall yielded a

response that says otherwise. Namely, Mr. Coleman directed Dr. Hall to page 249 of the

AMA Guides, which reads, “[t]he estimation of the relative contributions of different

causes of hearing impairment is in the apportionment process as described in Chapter 2.”

(Hall depo. at 30). Neither party asked Dr. Hall to use the apportionment process, but on

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no less than four occasions, he testified the left ear sensorineural loss might be applied to

the right ear. (Hall C-32 form; Hall depo. at 8, 26, and 31).

Judges and lawyers are not well-suited “to second-guess a medical expert’s

treatment, recommendations, and/or diagnoses absent some conflicting medical evidence

or some other countervailing evidence properly admitted into the record.” Scott v.

Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *8 (Aug. 18,

2015). In this case, Dr. Hall did not relate the conductive component of Mr. Coleman’s

right-ear hearing loss to noise exposure to a reasonable degree of medical certainty, and

the Court cannot second guess that opinion. Thus, the Court can only award permanent

partial disability for the hearing loss attributable to noise exposure and holds that

disability equals 14% to the body as a whole.

A permanent partial disability of 14% results in an original award of sixty-three

weeks of benefits at the rate of $346.04, or $21,800.52. The Court finds the date of

maximum medical improvement is August 30, 2016, which is the date Dr. Hall first rated

Mr. Coleman. Therefore, permanent disability benefits have accrued and are payable in

a lump sum.

3) Increased benefits

Mr. Coleman argued he is entitled to increased benefits because he did not return

to work, is over forty years of age, and has less than a high school education. The Court

holds he is not entitled to increased benefits because he voluntarily retired from

Armstrong for reasons unrelated to his hearing loss. See, Tenn. Code Ann. § 50-6-

207(3)(D)(@) (2017).

Future medical benefits

Mr. Coleman is entitled to lifetime future medical benefits made reasonably

necessary by his hearing loss injury. Tenn. Code Ann. § 50-6-204(a)(1)(A); Lindsey v.

Strohs Cos., 830 S.W.2d 899, 903 (Tenn. 1992). Dr. Hall shall remain the authorized

treating physician.

IT IS, THEREFORE, ORDERED as follows:

1. Mr. Coleman is entitled to permanent partial disability benefits equaling 14%

permanent partial disability to the body as a whole. At his stipulated

compensation rate of $346.04 per week, this award equals $21,800.52. Mr. Boyd,

Mr. Coleman’s counsel, is entitled to an attorney fee of twenty percent of the total

award equaling $4,360.10 pursuant to Tennessee Code Annotated section 50-6-

226(a)(1).

2. Mr. Coleman is entitled to future medical benefits as the result of his injury

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pursuant to Tennessee Code Annotated section 50-6-204(a)(1)(A). Dr. Hall shall

remain the authorized treating physician.

. Armstrong shall pay the $150.00 filing fee under Tennessee Compilation Rules

and Regulations 0800-02-21-.07 (2016) directly to the Clerk within five business

days of the date of this final order, for which execution may issue if necessary.

. Armstrong shall file a Statistical Data form within ten business days of entry of

this final order.

. Absent an appeal, this order shall become final Heat es after entry.

Judge Allen Phillips * 7\|

Court of Workers’ Compensation Claims

APPENDIX

Exhibits:

1.

SU

ne)

C-32 form of Dr. Christopher Hall

Deposition of Dr. Christopher Hall

Medical Records of Dr. John B. Woods

Medical Records of Jackson Clinic

Medical Records of Jackson Clinic not considered by the Court (for identification

only)

Mr. Coleman’s hearing test report from Armstrong (November 4, 2014)

Approval Documents from prior work injury at Armstrong (entered May 15, 2015)

Separation Notice

Technical record:

OS RPNDAARWN =

Petition for Benefit Determination

Dispute Certification Notice (March 14, 2016)

Expedited Hearing Order

Scheduling Order

Employee’s “Intent to Use a Written Medical Report”

Employer’s Objection to Intention to Use Written Medical Report

Amended Scheduling Order

Second Amended Scheduling Order

Third Amended Scheduling Order

10. Order on Filing of Medical Records

11. “Plaintiff's Trial Brief”

12.Employer’s Witness List

13.Employer’s Exhibit List

14.Employer’s Pre-Trial Brief

15. Dispute Certification Notice (October 27, 2017)

16.Employer’s Response to Court’s e-mail regarding medical records

17.Employer’s Motion to Dismiss

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this Compensation Hearing Order

was sent to the following recipients by the following methods of service on this the 22"

day of November, 2017.

Name Via Email Service sent to:

Jeffery P. Boyd, Esq., Xx jboyd@borenandboyd.com

Attorney for Employee

William F. Kendall, Esq., xX kendallr@waldrophall.com

Attorney for Employer

Lu dh a

Penny Shrum, Clerk of Court

Court of Workers’ Compensation Claims