McCaig, Ronnie v. LENNOX HEARTH PRODUCTS, INC.

FILED

Sep 17, 2020

02:32 PM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT JACKSON

RONNIE McCAIG, ) Docket No. 2019-07-0745

Employee, )

v. )

LENNOX HEARTH PRODUCTS, INC., ) State File No. 24821-2017

Employer, )

And, )

EMPLOYERS INS. CO. OF WAUSAU, ) Judge Allen Phillips

Carrier. )

COMPENSATION ORDER

This case came before the Court for a Compensation Hearing on September 2, 2020.

The only issues were whether Mr. McCaig’s hearing loss arose primarily out of his

employment at Lennox and, if it did, whether it caused permanent disability. The Court

holds that Mr. McCaig’s hearing loss arose out of his employment and as a result he

sustained a seven-percent permanent partial disability.

History of Claim

Mr. McCaig attributed his hearing loss to exposure to loud machinery at Lennox

from 2004 to 2014. He first noticed problems with his hearing in 2009 and said it worsened

over time. After his employment ended, he obtained counsel and reported his claim to

Lennox.1

In August 2017, Lennox authorized an evaluation with otolaryngologist Dr.

Christopher Hall, who recorded Mr. McCaig’s history of exposure “to industrial noise for

many years.” Mr. McCaig also provided a history of cardiovascular problems including a

heart attack.

1

Lennox initially raised notice and statute of limitations defenses but did not assert them at the hearing.

Specifically, Lennox admitted that it did not provide Mr. McCaig with hearing test results during his

employment to make him aware of potential work-related hearing loss.

1

Dr. Hall noted a perforation in Mr. McCaig’s right ear drum, and audiometric testing

showed a “mild to severe sensorineural” hearing loss in the left ear and a “mixed

conductive and sensorineural” loss in the right. Dr. Hall believed the sensorineural losses

were “more likely than not secondary to noise exposure,” but the hearing loss would be

“proportional,” and any audiograms during Mr. McCaig’s employment “would aid in

proportioning Lennox’s accountability[.]” He recommended surgical repair of the right ear

drum followed by the fitting of hearing aids. However, Lennox provided no further

evaluation or treatment.

In August 2019, Mr. McCaig obtained an attorney-arranged evaluation from

otolaryngologist Dr. Karl Studtmann, who recorded his history of noise exposure. Like Dr.

Hall, Dr. Studtmann observed the right ear drum perforation but said its location would

have a “minimal effect on the hearing.” Audiometric testing revealed both low- and high-

frequency losses that Dr. Studtmann called “entirely sensorineural, not conductive.” He

explained that sensorineural losses are caused by a problem with “getting the sound through

the ear canal to the hearing nerve,” and that a “good portion” of Mr. McCaig’s hearing loss

was from noise exposure.

Dr. Studtmann said audiometric tests performed by Lennox showed a “significant”

change for the worse over the years, and noise exposure was “likely the primary cause.”

Based on his own tests, Dr. Studtmann assigned a seven-percent permanent partial

impairment due to hearing loss.

For its part, Lennox offered the testimony of otolaryngologist Dr. Ronald Kirkland,

whose audiograms also showed significant hearing losses in both ears. However, he

believed the losses were “primarily conductive rather than sensorineural,” meaning they

were “independent of noise exposure.” He based that opinion on the perforated right ear

drum and what he called a “floppy” left ear drum, explaining those “circumstances create

a situation where the eardrum does not properly conduct the sound from the environment

to the hearing bones in the inner ear.” Thus, Dr. Kirkland believed Dr. Studtmann’s

audiograms were inaccurate because they did not consider the eardrum defects. He also

said Mr. McCaig’s cardiovascular problems could have played a role in his hearing loss.

When Dr. Kirkland reviewed the Lennox audiograms, he said they revealed a

“significant change” for the worse in the left ear between 2004 and 2014 with some lesser

changes in the right ear. Dr. Kirkland conceded, in response to a hypothetical by Mr.

McCaig’s counsel, that one might make an argument that the hearing losses seen in

Lennox’s audiograms were noise-related, and he did not “have anything to counter that

[argument] with.”

Based on his audiograms, Dr Kirkland assessed a thirteen-percent permanent

impairment, but if he considered only testing focused on the small bones of the ear, then

Mr. McCaig would have no impairment. However, he noted the Guides do not consider

2

bone testing a proper rating methodology.

At the hearing, Mr. McCaig said he had neither significant noise exposure nor

hearing problems before working at Lennox. Currently, his hearing is poor, and he believes

it is getting worse. He worked only odd jobs after leaving Lennox, and none with noise

exposure. He is disabled from COPD and heart problems.

Mr. McCaig relied on Dr. Studtmann’s testimony. Lennox relied on Dr. Kirkland’s

testimony, both as to the losses being conductive rather than noise-related, and that Mr.

McCaig’s cardiovascular problems could have contributed to his hearing loss.

The parties agreed Mr. McCaig’s compensation rate was $519.41, and that he

reached maximum medical improvement on August 1, 2017. They further stipulated that

he had not returned to work, was over age forty, and lacked a high school education or its

equivalent.

Findings of Fact and Conclusions of Law

Mr. McCaig must establish all elements of his claim by a preponderance of the

evidence. Tenn. Code Ann. § 50-6-239(c)(6) (2019).

Arising out of employment

The first issue is whether Mr. McCaig’s hearing loss arose primarily out of his

employment at Lennox. To establish this, Mr. McCaig must show by a preponderance of

the evidence that his employment contributed more than fifty percent in causing his hearing

loss when considering all causes. Tenn. Code Ann. § 50-6-102(14)(B). He must show this

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

of the physician, it is more likely than not. Id. at (14)(D).

Here, Dr. Studtmann said noise exposure at Lennox was “likely the primary cause”

of Mr. McCaig’s hearing loss; Dr. Kirkland disagreed. In deciding which medical opinion

to believe, the Court may consider the qualifications of the experts, the circumstances of

their examination, the information available to them, and the evaluation of the importance

of that information by the other experts. Bass v. The Home Depot U.S.A., Inc., 2017 TN

Wrk. Comp. App. Bd. LEXIS 36, at *9 (May 26, 2017).

When applying those factors, the Court finds the physicians equally qualified. The

circumstances of their examinations and the similar information available to them also keep

them on equal footing. However, the importance attached to the information makes Dr.

Studtmann’s opinion more persuasive.

Specifically, Dr. Studtmann explained the mechanics of sensorineural hearing

3

losses and said Mr. McCaig’s losses were primarily related to his noise exposure at Lennox.

This mirrors the statement Dr. Hall made two years earlier. Likewise, Dr. Studtmann

reviewed the audiograms performed at Lennox and said they showed a significant

worsening of Mr. McCaig’s hearing during his employment. Notably, Dr. Hall said review

of audiograms from Lennox would aid in determining Lennox’s “accountability” for the

hearing loss.

Turning to Dr. Kirkland, the Court notes his concise description of conductive

hearing loss and his explanation of the objective findings supporting it. However, Dr.

Kirkland agreed the audiograms performed at Lennox revealed a significant change in the

left ear between 2004 and 2014 and some lesser changes in the right, and he admitted to

having nothing to rebut Mr. McCaig’s argument that those losses were noise related. When

the Court couples the latter statement with Dr. Studtmann’s opinion, which is supported by

Dr. Hall’s statements, the Court finds Dr. Studtmann more accurate.

Finally, a work relation is bolstered by Mr. McCaig’s own credible testimony.

Tennessee law has long held that the employee’s own assessment of his physical condition

and resulting disability is competent testimony not to be disregarded. Orrick v. Bestway

Trucking, Inc., 184 S.W.3d 211, 217 (Tenn. 2006). By its direct observation via

videoconference, the Court finds Mr. McCaig was honest, forthcoming, and succinct when

describing his hearing loss and its cause. Likewise, his subjective assessment of his current

hearing was believable and untainted by exaggeration. See Kelly v. Kelly, 445 S.W.3d 685,

694-695 (Tenn. 2014) (discussing indicia of witness credibility).

For these reasons, the Court holds that Mr. McCaig established by a preponderance

of the evidence that his hearing loss arose primarily out of his employment at Lennox.

Permanent Disability

Having found a compensable injury, the Court turns to the extent of Mr. McCaig’s

permanent disability. In Baumgardner v. United Parcel Serv., 2017 TN Wrk. Comp. App.

Bd. LEXIS 63, at *10-11 (Oct. 18, 2017), the Appeals Board held that a permanent medical

impairment rating is the “statutory mechanism” for calculation of permanent partial

disability.

The Court finds Dr. Studtmann’s seven-percent rating the most accurate for the

same reasons it adopted his causation opinion and uses it to calculate Mr. McCaig’s

permanent disability. First, under Tennessee Code Annotated section 50-6-207(3)(A), Mr.

McCaig is entitled to an original award of seven-percent permanent partial disability to the

body, a period of thirty-one and one-half weeks of benefits. At the stipulated rate of

$519.41, Mr. McCaig’s original award is $16,361.42. (450 weeks x 7% x $519.41).

Second, the parties agreed Mr. McCaig meets the criteria for increased benefits under

section 50-6-207(3)(B). Here, the increased benefits are calculated using the following

4

factors: 1.35 times the original award because Mr. McCaig did not return to work; 1.2 times

the original award because he is over age forty; and 1.45 times the original award because

he lacks a high school diploma or its equivalent. Application of those factors to the original

award entitles Mr. McCaig to total increased benefits of $22,071.54.

In sum, the combined original award and increased benefits equal $38,432.96. The

total award of permanent partial disability is accrued and payable in a lump sum based on

the stipulated date of maximum medical improvement, August 1, 2017.

Future Medical Expenses

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

necessary by his injury. Tenn. Code Ann. § 50-6-204(a)(1)(A); Lindsey v. Strohs Cos., 830

S.W.2d 899, 903 (Tenn. 1992). Lennox shall designate the authorized treating physician.

IT IS, THEREFORE, ORDERED as follows:

1. Lennox shall pay Mr. McCaig permanent partial disability benefits equal to a seven-

percent permanent partial disability to the body, a period of 31.5 weeks, which at

the stipulated weekly compensation rate of $519.41 equals $16,361.42, and

increased benefits of $22,071.54, for a total award of permanent partial disability

benefits of $38,432.96. The award shall be paid in a lump sum.

2. Mr. McCaig’s attorney is entitled to a twenty-percent fee of the award under

Tennessee Code Annotated section 50-6-226(a)(1) in the amount of $7,686.59. Mr.

McCaig may move the Court for an award of discretionary costs, unless the parties

reach an agreement on the issue.

3. Lennox shall pay future medical benefits under Tennessee Code Annotated section

50-6-204(a)(1)(A) and will designate the authorized treating physician.

4. The Court taxes the $150.00 filing fee to Lennox, to be paid to the Court Clerk under

Tennessee Compilation Rules and Regulations 0800-02-21-.06 (August, 2019)

within five business days of this order becoming final, and for which execution

might issue if necessary.

5. Lennox shall prepare and submit to the Court Clerk a Statistical Data Form (SD2)

within ten business days of this order becoming final.

6. Unless appealed, this order shall become final thirty days after issuance.

5

ENTERED September 17, 2020.

_____________________________________

JUDGE ALLEN PHILLIPS

Court of Workers’ Compensation Claims

APPENDIX

Exhibits

1. Medical Records of Dr. Christopher Hall

2. Deposition of Dr. Karl Studtmann

3. Deposition of Dr. Ronald Kirkland

Technical record

1. Petition for Benefit Determination

2. Dispute Certification Notice with attachments (April 22, 2020)

3. Scheduling Order

4. Post-Discovery Dispute Certification Notice

5. Employee’s Witness List

6. Employee’s Notice of Filing Medical Records

7. Employee’s Pre-Compensation Hearing Statement

8. Employer’s Pre-Compensation Hearing Statement

9. Employer’s Witness List

10. Motion for Video Compensation Hearing

11. Order for Video Compensation Hearing

CERTIFICATE OF SERVICE

I certify that a copy of this Compensation Order was sent as indicated on September

17, 2020.

Name Email Service sent to:

Jeffrey P. Boyd, X jboyd@borenandboyd.com

Employee’s Counsel scallison@borenandboyd.com

Shaterra Reed Marion, X shaterra.marion@libertymutual.com

Employer’s Counsel

_____________________________________

Penny Shrum, Clerk of Court

Court of Workers’ Compensation Claims

WC.CourtClerk@tn.gov

6

Compensation Hearing Order Right to Appeal:

If you disagree with this Compensation Hearing Order, you may appeal to the Workers’

Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers’

Compensation Appeals Board, you must:

1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the

Clerk of the Court of Workers’ Compensation Claims within thirty calendar days of the

date the compensation hearing order was filed. When filing the Notice of Appeal, you

must serve a copy upon the opposing party (or attorney, if represented).

2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten

calendar days after filing of the Notice of Appeal. Payments can be made in-person at

any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the

alternative, you may file an Affidavit of Indigency (form available on the Bureau’s

website or any Bureau office) seeking a waiver of the filing fee. You must file the fully-

completed Affidavit of Indigency within ten calendar days of filing the Notice of

Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will

result in dismissal of your appeal.

3. You bear the responsibility of ensuring a complete record on appeal. You may request

from the court clerk the audio recording of the hearing for a $25.00 fee. A licensed court

reporter must prepare a transcript and file it with the court clerk within fifteen calendar

days of the filing the Notice of Appeal. Alternatively, you may file a statement of the

evidence prepared jointly by both parties within fifteen calendar days of the filing of the

Notice of Appeal. The statement of the evidence must convey a complete and accurate

account of the hearing. The Workers’ Compensation Judge must approve the statement

of the evidence before the record is submitted to the Appeals Board. If the Appeals

Board is called upon to review testimony or other proof concerning factual matters, the

absence of a transcript or statement of the evidence can be a significant obstacle to

meaningful appellate review.

4. After the Workers’ Compensation Judge approves the record and the court clerk transmits

it to the Appeals Board, a docketing notice will be sent to the parties. The appealing

party has fifteen calendar days after the date of that notice to submit a brief to the

Appeals Board. See the Practices and Procedures of the Workers’ Compensation

Appeals Board.

To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing

Order must be final and you must comply with the Tennessee Rules of Appellate

Procedure. If neither party timely files an appeal with the Appeals Board, the trial court’s

Order will become final by operation of law thirty calendar days after entry. See Tenn.

Code Ann. § 50-6-239(c)(7).

For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.

NOTICE OF APPEAL

Tennessee Bureau of Workers’ Compensation

www.tn.gov/workforce/injuries-at-work/

wc.courtclerk@tn.gov | 1-800-332-2667

Docket No.: ________________________

State File No.: ______________________

Date of Injury: _____________________

___________________________________________________________________________

Employee

v.

___________________________________________________________________________

Employer

Notice is given that ____________________________________________________________________

[List name(s) of all appealing party(ies). Use separate sheet if necessary.]

appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the

Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-

stamped on the first page of the order(s) being appealed):

□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________

□ Compensation Order filed on__________________ □ Other Order filed on_____________________

issued by Judge _________________________________________________________________________.

Statement of the Issues on Appeal

Provide a short and plain statement of the issues on appeal or basis for relief on appeal:

________________________________________________________________________________________

________________________________________________________________________________________

________________________________________________________________________________________

________________________________________________________________________________________

Parties

Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee

Address: ________________________________________________________ Phone: ___________________

Email: __________________________________________________________

Attorney’s Name: ______________________________________________ BPR#: _______________________

Attorney’s Email: ______________________________________________ Phone: _______________________

Attorney’s Address: _________________________________________________________________________

* Attach an additional sheet for each additional Appellant *

LB-1099 rev. 01/20 Page 1 of 2 RDA 11082

Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________

Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee

Appellee’s Address: ______________________________________________ Phone: ____________________

Email: _________________________________________________________

Attorney’s Name: _____________________________________________ BPR#: ________________________

Attorney’s Email: _____________________________________________ Phone: _______________________

Attorney’s Address: _________________________________________________________________________

* Attach an additional sheet for each additional Appellee *

CERTIFICATE OF SERVICE

I, _____________________________________________________________, certify that I have forwarded a

true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described

in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this

case on this the __________ day of ___________________________________, 20 ____.

______________________________________________

[Signature of appellant or attorney for appellant]

LB-1099 rev. 01/20 Page 2 of 2 RDA 11082