issued by the labor and industrial relations …occupational deafness. because we conclude that...

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

Employee:

Employer:

Insurer:

Additional Party:

FINAL AWARD DENYING COMPENSATION (Reversing Award and Decision of Administrative Law Judge)

Phillip Guinn

Solo Cup (settled)

Zurich American Insurance Co. (settled)

Treasurer of Missouri as Custodian of Second Injury Fund

Injury No.: 06-136330

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by§ 287.480 RSMo. We have reviewed the evidence, read the parties' briefs, and considered the whole record. Pursuant to§ 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge.

Preliminaries The hearing before the administrative law judge was conducted on January 26, 2017. The parties asked the administrative law judge to resolve the following issues: (1) whether employee sustained an incident of occupational disease on or about March 1, 2006, and if so, did it arise out of and in the course of employment with employer; (2) whether employee gave employer proper notice of injury under§ 287.420; (3) whether the claim was filed within the time prescribed under§ 287.430; (4) whether employee sustained any permanent disability as a consequence of the alleged occupational disease, and if so, what is the nature and extent of disability; and (5) whether the Second Injury Fund is liable for payment of additional permanent partial disability or permanent total disability compensation.

The administrative law judge determined as follows: (1) employee sustained an occupational disease on March 1, 2006, arising out of and in the course of employment; (2) employee provided proper notice to employer; (3) employee filed his claim against the Second Injury Fund within the time allowed by law; (4) employee sustained permanent partial disability as consequence of occupational disease; and (5) the Second Injury Fund is liable for permanent total disability benefits effective March 1, 2006, when employee's condition became permanent and he reached maximum medical improvement. The judge also found that employee's spouse, Priscilla Guinn, was qualified as a dependent.

The Second Injury Fund filed a timely application for review with the Commission alleging the administrative law judge erred in finding: (1) that the reasonably discoverable and apparent date that employee sustained an occupational injury/disease was May 22, 2013; (2) that employee's claim against the Second Injury Fund was timely; (3) the nature and extent of disability for tinnitus and hearing loss; and (4) that employee is permanently and totally disabled as a result of his preexisting Parkinson's disease combined with his alleged work-related hearing loss and tinnitus.

For the reasons set forth below, we reverse the award and decision of the administrative law judge.

Findings of Fact Employee's date of birth is December 20, 1949, making him about 56 years old when he left his employment with Solo Cup on March 1, 2006. The alleged occupational injury date is March 1, 2006. Employee began working with Solo Cup in February 1987. Employee was first diagnosed with mild Parkinson's disease on August 18, 2003. As of January 2006, the

Employee: Phillip Guinn Injury No.: 06-136330 -2-

diagnosis changed to Stage II, Parkinson's disease. Employee applied for and received Social Security disability benefits shortly after retiring from Solo Cup in 2006, apparently based on Parkinson's disease. Transcript, page 565.

There is ample evidence in the record that employee was exposed to harmful industrial noise in the employer's workplace for a prolonged period, and that as a result of that exposure, he sustained some level of disability in the form of hearing loss.1 During his employment, industrial hygiene studies established an excessive noise level was present in the extruder area where he worked. The noise level was rated at over 90 decibels. Employer began to require employees to wear ear plugs and ear muffs during his employment. Employee had to remove the protection temporarily, when there was a need to hear co-workers. They would have to shout into his ear to be heard. By 1993 his hearing tests performed at the direction of the employer, began to show a threshold shift.

Employee acknowledged that his hearing declined and reached a plateau in the early 2000's. Employee's test results included medical referrals in 2002, 2003 and 2005. Transcript, page 167. By 2005, a calculated hearing impairment was documented at 15.0 for the left ear and 17.5 for the right ear, with the binaural loss being 15.4. Transcript, page 164. His average hearing threshold had a greater than ten decibel shift (when compared with his baseline from 1987), according to the employer's testing in April 2005. Transcript, page 127. Employee's hearing loss was also apparent to his wife, Priscilla Guinn, who testified about his diminished hearing and ringing in the ears prior to March 2006, and the need for her to be within a few feet from him in order to be heard. Employee's hearing impairment and tinnitus did not improve, by his own admission, after leaving the employer.

Employee was experiencing ringing in his ears possibly as early as 1987-1989. He reported this to Dr. Michael North while he was still working at Solo and the doctor advised that he should find other work. As of the time of the hearing before the administrative law judge, the ringing in employee's ears continued at the same level.

Employee filed a claim for compensation solely against the employer alleging hearing loss and tinnitus on January 17, 2013. Employee settled his claim against the employer on April 11, 2014. Employee then filed his initial claim against the Second Injury Fund on May 7, 2014.

On May 22, 2013, Dr. P. Brent Koprivica conducted an independent medical examination. At that time, the doctor offered the opinion that employee's previously documented hearing loss was caused by occupational exposure at the Solo Cup Company. He also opined that employee had tinnitus, causing disability, which related to work exposures at Solo. These confirming diagnoses were obtained after employee had filed a claim solely against the employer exclusively for hearing loss and tinnitus on January 17, 2013.

The administrative law judge found that it was not until Dr. Koprivica's diagnosis of May 22, 2013, that it was reasonably discoverable and apparent that employee had sustained either of the claimed injuries herein (tinnitus or hearing loss). We disagree. When a formal claim for compensation is filed, alleging that an employee has sustained occupational hearing loss and tinnitus, the date of such filing must reasonably be deemed to establish when, at the latest, it had become reasonably discoverable and apparent that an injury has been sustained due to occupational exposure. We find, therefore, that it was reasonably discoverable and apparent to employee that he had sustained an injury related to his occupational exposure on January 17, 2013.

1 The evidence, including testimony of Dr. Alan Parmet and the testing results reviewed by Dr. Koprivica, also suggest that some of the hearing loss may be from age or other nonoccupational causes.


Conclusions of Law We conclude that the dispositive issue in this case is the employee's failure to meet the statute of limitation for the claim against the Second Injury Fund.

Statute of Limitation Section 287.063.3, provides as follows:

The statute of limitation referred to in section 287.430 shall not begin to run in cases of occupational disease until it becomes reasonably discoverable and apparent that an injury has been sustained related to such exposure, except that in cases of loss of hearing due to industrial noise said limitation shall not begin to run until the employee is eligible to file a claim as hereinafter provided in section 287.197. (Emphasis ours)

Section 287.430, provides:

Except for a claim for recovery filed against the second injury fund, no proceedings for compensation under this chapter shall be maintained unless a claim therefor is filed with the division within two years after the date of injury or death, or the last payment made under this chapter on account of the injury or death ...

A claim against the second injury fund shall be filed within two years after the date of the injury or within one year after a claim is filed against an employer or insurer pursuant to this chapter, whichever is later ....

Under§ 287.063 the statute of limitation for occupational disease claims begins to run after the date the condition is apparent and reasonably discoverable. The determination of when an occupational disease becomes reasonably discoverable and apparent to an employee is a factual one. Lawrence v. Anheuser Busch Cos., 310 S.W. 3d 248,252 (Mo. App. 2010). We have found that it was reasonably discoverable and apparent to employee that he had sustained injury related to his occupational exposure on January 17, 2013, when he filed his claim against the employer/insurer alleging occupational diseases in the form of hearing loss and tinnitus.

On that date, the statute of limitations under§ 287.430 for claims against the Second Injury Fund began to run, and said claim is barred unless it was filed either within one year of January 17, 2013, or two years from the date of injury, whichever is later. The date of injury identified by employee in his claim and used throughout this proceeding is March 1, 2006. This corresponds to employee's last date of exposure to injurious noise while working for employer. We conclude that March 1, 2006, is the relevant "date of injury" for purposes of§ 287.430 RSMo.

Employee did not file his claim against the Second Injury Fund until May 7, 2014, more than one year after January 17, 2013, and more than two years after March 1, 2006. Employee has not met either permissible date for filing his claim against the Second Injury Fund. 2

2 We acknowledge the provisions within § 287.197. 7 and Division rule 8 CSR 50-5.060(8) pertaining to claims for occupational deafness. Because we conclude that employee's claim against the Second Injury Fund alleging both tinnitus and hearing loss was, in any event, untimely filed pursuant to§ 287.430, we need not consider or determine herein whether those authorities should be read to require us to impose an earlier two-year statute of limitations running the "date of disability" (here, April 1, 2006), or alternatively whether those authorities describe an independent tolling mechanism modified by the "reasonably discoverable and apparent" test set forth under§ 287.063.3.


All Other Issues are Moot We conclude the employee has not met his burden of proof to establish a timely claim against the Second Injury Fund, in compliance with the statute of limitation. Therefore, the claim against the Second Injury Fund is barred. All other issues presented by the parties are moot and we will not address them further.

Decision We reverse the award of the administrative law judge.

Employee's claim against the Second Injury Fund is denied because employee failed to file his claim against the Fund within the statute of limitation.

The award and decision of Administrative Law Judge L. Timothy Wilson is attached solely for reference.

Given at Jefferson City, State of Missouri, this_;)._\~-- day of August 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

SEPARATE OPINION FILED Attest: Curtis E. Chick, Jr., Member

~~~

Employee: Phillip Guinn Injury No. 06-136330

DISSENTING OPINION

After a thorough review of the record, the briefs, and the applicable Missouri authorities relevant to this matter, I am convinced that the Commission majority errs in denying this claim based on a conclusion that employee's claim against the Second Injury Fund is barred by the statute of limitations.

The Commission majority cites, but fails to correctly apply, the modified statute of limitation under§ 287.063.3 RSMo that in all cases of occupational disease, the statute of limitations described under § 287.430 RSMo "shall not begin to run until it becomes reasonably discoverable and apparent that an injury has been sustained related to such exposure." Section 287.430 does state that an employee must file a claim against the Second Injury Fund within one year of the date of the claim against the employer, or two years from the date of injury, whichever is later. However, in claims for occupational disease, we are required, pursuant to § 287.063.3, to modify the two-year statute of limitation to run not from the date the injury, but from the date the injury was reasonably discoverable and apparent. To hold otherwise undermines the clear legislative intent that employees not be time-barred from filing claims for injuries of which they were not (and could not reasonably have been) aware:

In fixing the time of injury within the contemplation of the statute, the rule is that the limitation period begins to run whenever it becomes reasonably discoverable and apparent that a compensable injury has been sustained, which, in the case of an occupational disease, is the time when the disease has produced a compensable disability.

Marie v. Standard Steel Works, 319 S.W.2d 871,880 (Mo. 1959).

Logically, an employee cannot be expected and certainly cannot be required to institute claim until he has reliable information that his condition is the result of his employment. Just as logically, given that there must be competent and substantial evidence of this link, the claimant is entitled to rely on a physician's diagnosis of his condition rather than his own impressions.

Sellers v. Trans World Airlines, Inc., 752 S.W.2d 413, 416 (Mo. App. 1988).

The Commission majority finds that it was reasonably discoverable and apparent to employee that he had suffered the occupational injuries of tinnitus and hearing loss on January 17, 2013. Assuming, for the sake of argument, that the Commission majority is correct in so finding, the two-year statute of limitations under§ 287.430 for filing a claim against the Second Injury Fund runs from that date, not the date of last exposure on March 1, 2006. Employee filed his claim against the Second Injury Fund on May 7, 2014, within two years of January 17, 2013. Thus, the claim was timely filed.

Accordingly, and because I otherwise agree with the well-reasoned decision of the administrative law judge in this case, I would affirm the award of permanent total disability benefits from the Second Injury Fund.

Because the Commission majority has decided otherwise, I respectfully dissent.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee:

Dependents:

Employer:

Insurer:

Phillip Guinn

NIA

Solo Cup Company (Settled)

NI A (Self-insured Employer)

AWARD

Injmy No. 06-136330

Before the Division of\Vorkers'

Compensation Department of Labor and Industrial

Relations of Missouri Jefferson City, Missouri

Additional Paity: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Hearing Date: January 26, 2017 Checked by: LTW

FINDINGS OF FACT AND RULINGS OF LAW

I. Are any benefits awarded herein? Yes

2. Was the ittjury or occupational disease compensable under Chapter 287? Yes

3. Was there an accident or incident of occupational disease under the Law? Yes

4. Date of accident or onset of occupational disease: March I, 2006

5. State location where accident occurred or occupational disease was contracted: Greene County, Missouri

6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

7. Did employer receive proper notice? Yes

8. Did accident or occupational disease arise out of and in the course of the employment? Yes

9. Was claim for compensation filed within time required by Law? Yes

10. Was employer insured by above insurer? Yes

11. Describe work employee was doing and how accident occurred or occupational disease contracted: While engaged in employment with the Employer, Employee suffered occupational exposure to high frequency noise. As a consequence of this work incident, Employee sustained injuries in the nature of hearing loss and tinnitus.

12. Did accident or occupational disease cause death? No Date of death? N/A

13. Pait(s) of body injured by accident or occupational disease: Right and Left Ears & BAW (Hearing Loss and Tinnitus)

14. Nature and extent of any permanent disability: 12.5 % BAW referable to tinnitus; 2.45 % at the 180-week level, referable to hearing loss to both ears.

15. Compensation paid to-date for temporaty disability: N/ A

16. Value necessary medical aid paid to date by employer/insurer? NIA

\\'C-32-RJ (6-81) Page I

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Phillip Guillll

I 7. Value necessary medical aid not furnished by employer/insurer? NIA

18. Employee's average weekly wages: $625.00

19. Weekly compensation rate: $365.08 (PPD) & $416.67 (PTO)

20. Method wages computation: Stipulation

COMPENSATION PAYABLE

Injury No. 06-136330

21. Amount of compensation payable: NIA (Employee and Employer/Insurer entered into a Stipulation for Compromise Settlement.)

22. Second Injury Fund liability: ....................................................................................... Yes

Weeks of permanent pa11ial disability from Second Injury Fund: ................................................. N/ A

Uninsured medical/death benefits: ...................................................................................... NIA

Permanent total disability benefits from Second Injury Fund: ...................................................... Yes

Employee is entitled to permanent total disability benefits ($416.67 per week) for his lifetime. There is a weekly differential between permanent partial disability compensation paid by Employer and permanent total disability compensation paid by Second Injmy Fund. Therefore, in light of Employee reaching maximum medical improvement and his work injury condition becoming permanent on March I, 2006, and Employer & Insurer responsible for 54.41 weeks ofpennanent partial disability compensation, payment of permanent total disability compensation by the Second htjury Fund shall take into consideration the 54.41 weeks of permanent partial disability compensation attributable to Employer.

TOTAL: $416.67 PER WEEK (LESS 54.41 WEEKS OF PPD ATTIBUTABLE TO EMPLOYER) FOR EMPLOYEE'S LIFETIME, EFFECTIVE AS OF MARCH 1, 2006.

23. Future requirements awarded: Yes (See Award)

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attomey for necessary legal services rendered to the claimant: E. Joseph Hosmer, Esq.

WC-32-RJ (6-Sl) P11ge 2

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Phillip Guinn Injury No. 06-136330

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Phillip Guinn Injury No. 06-136330

Dependents: NIA

Employer:

Insurer:

Solo Cup Company (Settled)

NIA (Self-insured Employer)

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on January 26, 2017. The employee, Phillip Guinn, appeared personally and through his attorney, E. Joseph Hosmer, Esq. The employer did not appear, insofar as the employee and employer entered into a Stipulation for Compromise Settlement prior to the hearing, resolving the underlying claim filed against the employer. The Second Injury Fund (Fund) appeared through its attorney, Skyler Burks, Assistant Attorney General.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1)

(2)

(3)

(4)

(5)

(6)

WC-32·Rl (6-Sl)

On or about March 1, 2006, Solo Cup Company was an employer operating under and subject to The Missouri Workers' Compensation Law and during this time was fully insured by Zurich American Insurance.

On the alleged htjury date of March 1, 2006, Phillip Guinn was an employee of the employer and was working under and subject to The Missouri Workers' Compensation Law.

The above-referenced employment and alleged occupational disease of March 1, 2006, occurred in Greene County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.

At the time of the alleged occupational disease of March 1, 2006, Employee's average weekly wage was $625.00, which is sufficient to allow a compensation rate of $416.67 for temporary total disability compensation/permanent total disability compensation and a compensation rate of $365.08 for permanent partial disability compensation.

Temporary disability benefits were not provided to the employee.

The employer did not provide medical treatment to the employee.

P~geJ


(7) In regard to the claim of injury in Injury No. 06-136330, the employee reached maximum medical improvement and his condition became permanent on March 1, 2006.

(8) On or about April 11, 2014, the employee and employer entered into a Stipulation for Compromise Settlement in Injury No. 06-136330, which resolved the underlying claim filed against the employer. The settlement agreement involved a compromise lump sum settlement under Section 287.390, RSMo for the payment of a lump sum of $14,500.00 based upon approximate disability of 10 percent to the body as a whole for tinnitus, which was signed and approved by the Hon. Victorine Mahon on that day.

The issues to be resolved by hearing include:

(1) Whether Employee sustained an incident of occupational disease on or about March 1, 2006; and, if so, whether the occupational disease arose out of and in the course of his employment with the employer.

(2) Whether the employee provided the employer with proper notice of the injury as required by Section, 287.420, RSMo.

(3) Whether the Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

( 4) Whether the alleged incident of occupational disease caused the injuries and disabilities for which benefits are now being claimed.

(5) Whether the employee sustained any permanent disability as a consequence of the alleged occupational disease of March 1, 2006; and, if so, what is the nature and extent of the disability?

( 6) Whether the Treasurer of Missouri, as the Custodian of the Second litjury Fund, is liable for payment of additional permanent partial disability compensation or permanent total disability compensation.

(7) Whether the employee's dependent spouse is entitled to benefits in the future under Chapter 287, RSMo, as allowed by law, including Schoemehl v. Treasurer of Missouri, 217 S.W.3d 900 (Mo. bane 2007).

EVIDENCE PRESENTED

The employee testified at the hearing in support of his claim. Also, the employee presented at the hearing of this case the testimony of his wife, Priscilla Guinn. In addition, the employee offered for admission the following exhibits:

Exhibit A ................. Stipulation for Compromise Settlement BIT Employee & Employer (Injury No. 06-136330) Exhibit B .......................... Complete Medical Report of P. Brent Koprivica, M.D., M.P.H.

\\'C.J2-Rl (6-Sl) Page -I

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Phillip Guinn

The exhibits were received and admitted into evidence.

Injmy No. 06-136330

The Second Injury Fund did not present any witnesses at the hearing of this case. However, the Second Injury Fund offered for admission the following exhibits:

Exhibit I ........................................................................... Original Claim for Compensation Exhibit II .................... Employee's Stipulation for Compromise Settlement with Employer Exhibit II ........................................... Claim for Compensation - Second Injury Fund Only Exhibit IV ................................................................ Second Injury Fund's Original Answer Exhibit V ............................................................... Second Injury Fund's Amended Answer Exhibit VI.. ............................................................. Deposition of Employee (May 4, 2015) Exhibit VII ....................... Deposition of Allen J. Parmet, M.D., M.P.H. (October 6, 2016) Exhibit VIII .............................................................. C.V. of Allen J. Parmet, M.D., M.P.H. Exhibit IX ................... Medical Report of Allen J. Pannet, M.D., M.P.H. (August 4, 2016) Exhibit X .................. Medical Report of Allen J. Pmmet, M.D., M.P.H. (August 29, 2016)

The exhibits were received and admitted into evidence.

In addition, the parties identified several documents filed with the Division of Workers' Compensation, which were made part of a single exhibit identified as the Legal File. The undersigned took administrative or judicial notice of the documents contained in the Legal File, which include:

" Notice of Hearing e Order • Answer of Second Injury Fund to (Amended) • Answer of Second Injury Fund to (Original) • Claim for Compensation (Filed Against SIF Only) • Stipulation for Compromise Settlement BIT Employee & Employer in Injury No. 06-

136330 • Answer of Employer to Original Claim for Compensation • Original Claim for Compensation • Report of Injury

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

DISCUSSION

Background & Employment

The employee, Phillip Guinn, is 67 years of age, having been born on December 20, 1949. Mr. Guinn resides with his wife, Priscilla Guinn, in Springfield, Missouri. Mr. Guinn and his wife, Priscilla, have been married for over 34 years. They have two adult sons that are not dependent upon them.

WC-32-R! (&-81) Pages

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Phillip Guinn InjmyNo. 06-136330

Mr. Guinn graduated from high school at Catihage Senior High School in 1967. Thereafter, he attended Missouri Southern State College for a couple of years, studying preengineering. He did not receive a two-year associate degree. Notably, while attending college, he worked at Leggett & Platt in the shipping department. He next worked for Missouri Pacific Railroad for six months and then for Gearhati Industries in Coffeyville, Kansas, from approximately 1981 until 1985. He worked on equipment used by Gearhart Industries to explore for oil wells.

In or around 1987 he moved to Springfield, Missouri and worked on the assembly line at Zenith for approximately one year. He then obtained employment with the employer, Solo Cup Company. He continued in this employment until March 2006, when he terminated his employment with the employer.

Prior A1edical Conditions

Prior to sustaining the work injury of March 2006, Mr. Guinn suffered several injuries and/or medical conditions, which caused him to present with certain petmanent disability. These prior medical conditions include:

• Parkinson's Disease: In or around 2002 to 2003, Mr. Guim1 began to experience a tremor in his left upper extremity and noticed the presence of a tumor. This concern resulted in him seeking treatment in May 2003 and eventually diagnosed with Parkinson's disease in August 2003.

WC~32-Rl (6-S!)

In describing the nature attd effect of this disease upon him, Mr. Guim1 testified that in 2003 he began experiencing tremors in his upper extremities, fatigue and weakness, difficulty concentrating, and lack of balance at times. He indicated these problems were essentially the same since he left employment in March 2006 and were the main reason he left employment at Solo Cup Company. According to Mr. Guinn, at the time he left employment with Solo Cup Company, he could no longer do the medium to heavy lifting requirements of the job and during the last six months to one year was often accommodated by co-employees who assisted with heavy lifting or strenuous job duties.

Also, according to Mr. Guitm, he left employment around March I, 2006, because of problems with Parkinson's disease in performing medium- to heavy-duty work, which he had to have help doing. He testified that he would have been able to do light or sedentary jobs but for his hearing loss and tinnitus, which makes it difficult for him to communicate unless he is very close to the other speaker and can see their lips. In addition, he indicated he has difficulty hearing on the telephone or where there is background noise.

Based on his understanding of this disease, Mr. Gui1111 described Parkinson's disease as a medical condition identified by stages- Stage I is mild, Stage II is moderate, Stage III is severe, and Stage IV is debilitating. According to Mr. Guim1, his condition is at Stage II, which is moderate. He notes that since getting this diagnosis he has received treatment for the disease, which involves prescription medication.

Page6

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Phillip Guhm Injury No. 06-136330

And with this regiment of medication, he has been able to maintain his condition at Stage II since leaving his employment with Solo Cup Company with the noted exception that he experiences more pronounced tremors in his upper extremity.

Priscilla Guinn testified she first noticed Mr. Guim1 having problems, later diagnosed as Parkinson's disease, in the early 2000s. She testified at the time he left Solo Cup Company employment in March 2006 he was able to drive daily to and from work, and he was able to mow the lawn with a push mower every two weeks. Also, she testified that since Mr. Guinn left employment with Solo Cup Company in March 2006, the Parkinson's disease has been stable except for the hand tremors being more pronounced.

• Left Shoulder & Low Back: Mr. Guinn testified that for many years prior to March 2006 he experienced pain in his left shoulder and low back, which he attributed to arthritis. According to Mr. Guinn, the pain continued to progress, and in 2010 he began taking hydrocodone for this condition. According to Mr. Guinn, the prescription medication for this low back pain has addressed this concern.

• Right Knee: Mr. Guinn did not necessarily identify the right knee as a preexisting condition. Rather, at some point in time subsequent to his employment with the employer, he began experiencing significant right knee pain with instability, which he described as a bone-on-bone condition which required surgery in the nature of a knee replacement. This surgery occurred in June 2015. According to Mr. Guinn, since undergoing this knee replacement surgery his right knee has become much better. He has not suffered any instability and no longer experiences any significant pain in his right knee.

In regard to the right knee, Ms. Guinn testified that she was aware Mr. Guinn fell a number of times in 2015 prior to his right knee replacement surgery in July 2015, but after that surgery he no longer needed a cane and he was no longer falling or losing his balance because of right knee instability.

Employment & Incident of Occupational Disease

On or about February 8, 1987, Mr. Guinn obtained employment with the employer, initially working as a packaging equipment serviceman. After the first year of his employment with the employer, he changed depatiments and began working in the foam department working as a foam attendat1t. In this position, Mr. Guinn was responsible for running a foam extruder machine. He described the extruder as a machine where plastic pellets, citric acid, and oil are mixed, heated, and fed through extruder machines which produced foam sheets for the making of foam cups.

Mr. Guinn testified that the entire plant was very noisy, but the extruder machine was extremely noisy. According to Mr. Guim1, he had reviewed noise hygiene studies of the extruder area, which indicated that the noise level was over 90 decibels and because of extreme noise employees were required to wear hearing protection. Mr. Guinn noted that he wore earplugs and ear muffs but frequently had to remove his hearing protection in order to speak with co-

WC-32-RI (6·81) Page 7

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Phillip Guilm Injury No. 06-136330

employees and supervisors multiple times each day. He indicated the noise was so loud that individuals working on the floor were required to shout directly into each other's ear in order to be understood. He testified he could "feel the noise" and initially did not know if he wanted to continue working at Solo Cup because of the noise.

Employee testified running the extrnder forced him to breathe Fonnacel gas, which he believes caused him to lose his sense of smell in the first few years he worked at Solo Cup. He testified he was never provided with respiratory equipment.

During his employment with the employer, Solo Cup Company, Mr. Guinn began experiencing a loss of hearing and ringing of the ears (tinnitus). Mr. Guim1 describes this background noise as sounding like "cicadas." He did not receive any treatment for these two conditions other than being provided with audiograms by the employer as part of hearing screening performed by the employer for employees. In describing the onset of his hearing loss, Mr. Guhm noted that he first began to experience loss of hearing and tilllitus complaints, which he described as a cicada-like chirping sound approximately two years after starting work at Solo Cup. His thmitus worsened until it reached a plateau in the early 2000s and has stayed the same since that time.

Mr. Guilll believes his difficulty hearing is caused by both the constant loud chirping noise (tilllitus) and his hearing loss. Mr. Guim1 further testified that his hearing loss and tilllitus are partly responsible for causing headaches and making it difficult for him to concentrate. Additionally, he testified the chirping sound in his cars causes him difficulty sleeping and he has taken sleep medication since he developed tilllitus. He indicated because of his sleep difficulty he is often fatigued, which also contributes to his difficulty focusing.

In describing the tilllitus, Mr. Guilll testified he hears a very loud and constant cicadalike chirping noise 24 hours a day, 7 days a week, which interferes with his ability to hear and understand speech. He testified the person he is speaking to needs to speak loudly and he needs to be able to be close enough to "read the lips" of the other person in order to help him understand conversation. He testified he has worn hearing aids for the last two years and they help, but they have no effect on the constant chirping sound from tilllitus blocking his ability to hear. He testified when he watches TV, it has to be on the loudest level and he always uses closed-captioning.

Medical Diagnosis

While working for Solo Cup Company, Mr. Guilll did not obtain medical treatment for his hearing loss. However, as patt of the hearing conservation program, Mr. Guinn was provided annual audiograms at Solo Cup Company. In his review of this data, Dr. Koprivica notes that Mr. Guinn's baseline audiogram on Febrnary 12, 1987, demonstrated results as follows:

For the right ear: the hearing at 500 he1tz was 15 decibels, the hearing at 1,000 hertz was 15 decibels, and the hearing at 2,000 hertz was 25 decibels. For the left ear: the hearing at 500 hertz was 10 decibels, the hearing at 1,000 hertz was 20 decibels, and the hearing at 2,000 he1tz was 30 decibels.

WC-32-RI (6-Sl) Pages

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Phillip Guinn Injmy No. 06-136330

In contrast, the audiogram performed on April 21, 2005, the hearing threshold demonstrated a loss of hearing as follows:

For the right ear: the hearing at 500 he11z was 25 decibels, the hearing at 1,000 hertz was 40 decibels, and the hearing at 2,000 hertz was 45 decibels. For the left ear: the hearing at 500 he11z was 25 decibels, the hearing at 1,000 hertz was 35 decibels, and the hearing at 2,000 he11z was 45 decibels.

According to Dr. Koprivica, this hearing loss represents a greater than 10 decibel shift for the average hearing thresholds at 500 hertz, 1,000 hertz, and 2,000 he11z.

Although leaving his employment with Solo Cup Company in March 2006 with a hearing loss condition, as well as tinnitus, Mr. Guinn testified that he did not realize this medical condition involved a work-related injury, and he did not file or pursue a workers' compensation claim, nor did the employer file a Report of Injury with the Missouri Division of Workers' Compensation at the time of- or six months after -his separation from employment.

Eventually, however, Mr. Guinn secured the services of legal counsel relative to him having a workers' compensation injury. Through this representation, Mr. Guinn filed a Claim for Compensation against the employer, Solo Cup Company. This claim was dated by counsel on January 14, 2013, and filed with the Missouri Division of Workers' Compensation on January 17, 2013. Presumably, based on this claim, the employer, Solo Cup Company, filed the Report of Injury in the case, with the administrator indicating notice of this injury on January 17, 2013.

Subsequent to securing legal counsel, on January 14, 2013, January 15, 2013, and January 23, 2013, the employee obtained three separate audiograms for both the right ear and left ear. These audiograms demonstrated that Mr. Quinn's best average hearing threshold for the right and left ears are as follows:

• Right Ear: The average hearing threshold for the right, for 500 he11z, 1,000 hertz, and 2,000 he11z is 38.3 decibels. When subtracting and taking into account Mr. Guinn's age, his age-co1Tected best average hearing threshold at 500 hertz, 1,000 hertz, and 2,000 he11z is 26.8 decibels. According to Dr. Koprivica, this finding results in a one point two (1.2) percent age-c01Tected monaural hearing impairment for 500 hertz, 1,000 hertz, and 2,000 he11z on the right.

e Left Ear: The average hearing threshold for the left, for 500 hertz, 1,000 hertz, and 2,000 hertz is 43.3 decibels. When subtracting and taking into account Mr. Guinn's age, his age-corrected best average hearing threshold at 500 he11z, 1,000 hertz, and 2,000 hertz is 31.8 decibels. According to Dr. Koprivica, this finding results in an eight point seven (8. 7) percent age-corrected monaural hearing impairment for 500 he11z, 1,000 he11z, and 2,000 he11z on the left.

o Binaural Hearing Impairment: According to Dr. Koprivica, this finding demonstrates a binaural hearing impairment, which, by statute, represents a two point five (2.45) percent hearing impairment.

WC-32-Rl (6-81) P:ige 9


Also, subsequent to securing legal counsel, on or about May 23, 2013, Mr. Guinn obtained a medical examination and evaluation with P. Brent Koprivica, M.D., M.P.H. By and through this examination with Dr. Koprivica, Mr. Guinn first learned that his hearing loss and tinnitus was causally related to his employment at Solo Cup Company- identified an occupational hearing loss and injury directly related to the environmental noise occun'ing while working on the extruder machines. This medical condition was, thus, first diagnosed and identified by a health care provider as a work-related hearing loss and hearing condition caused by his employment with Solo Cup Company, not until May 22, 2013.

According to Mr. Guinn, the first time he was made aware by a medical expert that his severe high frequency hearing loss and tinnitus were related to noise exposure was when he saw Dr. Brent Koprivica on May 22, 2013. Further, according to Mr. Guinn, his loss of hearing and tinnitus are about the same now as they were in March 2006, when he left employment with Solo Cup Company.

Ms. Guim1 testified that prior to March 2006, Mr. Guinn had significant loss of hearing and tinnitus complaints. She did not believe he could hear without seeing the lips of the person speaking to him. And when she spoke to him, she would be only a few feet from his face. In addition, she testified she did not believe he could perform sedentary or light work in March 2006 because of disabilities from hearing loss and tinnitus.

In addition, Ms. Guinn testified that Mr. Guinn had difficulty sleeping because of tinnitus, which leaves him fatigued and affects his ability to concentrate. She fnrther testified that when Mr. Guinn watched TV, it was at the highest sound level and that he needed to use closedcaptioning.

Also, according to Mr. Guim1, Dr. Koprivica restricted him from jobs that required normal speech discrimination because of hearing loss and tinnitus. Also, Mr. Guinn notes that Dr. Koprivica placed restrictions of no jobs requiring repetitive use of his upper extremities and the ability to self-pace because of fatigue, which Dr. Koprivica attributed to the Parkinson's disease.

The employee resolved his claim against the employer by and through a compromise settlement agreement.

Medical Treatment

As noted, Mr. Guinn has received limited treatment for his hearing loss and tilmitus, other than the audiograms provided by the employer. Additionally, he is now wearing hearing aids.

h1depe11dent J.1edical Examinations

P. Brent Koprivica, M.D., M.P.H.

P. Brent Koprivica, M.D., M.P.H., testified in behalf of the employee by and through submission of his complete medical report. In examining Dr. Koprivica's qualifications and experience, it is noted that he completed a three-year residency program in emergency medicine

Page IO

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Phillip Guhm l!tjuryNo. 06-136330

at Truman Medical Center and later served in a full-time faculty position with the residency program, including teaching responsibilities for the University of Missouri, Kansas City, Medical School from 1983 to 1985, and he continued to serve in a pait-time position with the university until 1989. It is further noted that Dr. Koprivica is board ce1tified in emergency medicine. Also, Dr. Koprivica obtained a master degree in Public Health with an emphasis in occupational and envirol111lental medicine from Saint Louis University in 1996. Dr. Koprivica has practiced in occupational medicine on a full-time basis since 1983. Additionally, Dr. Koprivica is board certified by the American Board of Preventive Medicine in occupational medicine.

Dr. Koprivica performed an independent medical examination of the employee on May 22, 2013. At the time of this examination, Dr. Koprivica took a history from Mr. Guinn, reviewed various medical records, and performed a physical examination of him. Also, as part of his examination and evaluation of the employee, Dr. Koprivica reviewed the industrial hygiene noise exposure data from Solo Cup Company, as performed in 1995, 1997, and 2007. Notably, this data is for the relevant time period associated with the employee's actual work environment during his employment with the employer.

Based on his review of the employee's medical records, including the industrial hygiene noise data, Dr. Koprivica determined that the studies evidenced significant high frequency hearing loss. Also, Dr. Koprivica determined that Mr. Guinn suffers from severe tinnitus bilaterally, which is constant. In examining the cause for the hearing loss and tinnitus, Dr. Koprivica opined to a reasonable degree of medical ce1tainty the employee's exposure to noise at Solo Cup Company was the prevailing factor in his development of occupational hearing loss and bilateral tinnitus.

Also, Dr. Koprivica opined that a hearing amplification was necessary. Dr. Koprivica opined the constant and extremely loud chirping sound from tinnitus combined with severe high frequency hearing loss causes the employee to experience disability'in speech discrimination. In considering the nature and extent of the permanent disability attributable to the hearing loss and tinnitus, Dr. Koprivica opines that the employee has sustained a permanent partial disability of 12.5 percent to the body as a whole referable to the tim1itus and high frequency hearing loss, and a pennanent partial disability 2.45 percent at the 180-week level, referable to the statutory hearing loss.

Further, considering the nature and effect of this disability upon Mr. Guinn, Dr. Koprivica opined that Mr. Guinn is governed by permanent restriction and the employee should be restricted from work requiring normal speech discrimination because of the combination of his tinnitus and high frequency hearing loss. In this regard, Dr. Koprivica notes that the employee experiences particular difficulties with speech discrimination with background noise.

In addition, Dr. Koprivica opines that at the time of the work injury of March 2006, the employee suffered from a preexisting permanent disability in the nature of Parkinson's disease. As to this preexisting condition, Dr. Koprivica opines that at the time of the work injury of March 2006, the Parkinson's disease was industrially disabling and caused the employee to experience significant disability. As such, Dr. Koprivica opines that at the time of the work injury of March 2006, Mr. Guinn would be governed by restrictions prohibiting him from a working environment requiring repetitive use of his upper extremities and would require the

WC-32-R! (6-Sl) Page- 11


ability to self-pace when working. Notably, in rendering an assessment of the Parkinson's disease as a preexisting disability, Dr. Koprivica noted that he only considered the disability from Parkinson's disease as it existed prior to the last exposure of March 2016 and determined that the disability was sufficient to supp01t an assessment of a permanent partial disability of 50 percent to the body as a whole.

In considering the employee's overall permanent disability, Dr. Koprivica opines that the permanent disability caused by the occupational injury of March 1, 2006, in combination with the preexisting permanent disability attributable to the Parkinson's disease has a synergistic effect, causing the employee to sustain additional permanent disability greater than the simple sum. Yet, Dr. Koprivica opines that the employee is pe1manently and totally disabled. In rendering this opinion, Dr. Koprivica opines that the occupational injury relating to hearing loss and ti1111itus, considered in isolation, does not render the employee permanently and totally disabled. Rather, the employee is permanently and totally disabled as a consequence of the occupational injury of March 1, 2006, in combination with the preexisting permanent disability attributable to the Parkinson's disease.

Finally, Dr. Koprivica notes that his opinion of permanent total disability is without consideration of any progression of the Parkinson's disease or other disability development from a musculoskeletal nature after March 2006. The employee is permanently totally disabled because of the combination of the March I, 2006, injury by occupational disease in combination with the preexisting disability from the Parkinson's disease as it existed prior to March 1, 2006.

Allen J. Parmet, M.D., M.P.H.

Allen J. Pannet, M.D., M.P.H., testified by deposition in behalf of the Second Injury Fund. In examining Dr. Parmet's qualifications and experience, it is noted that he is board certified in occupational medicine and aerospace medicine. In his careers in the military and private sector, Dr. Parmet monitored employees in the workplace in hearing conservation programs. In those programs, Dr. Parmet identified individuals with hearing loss and specific patterns, evaluated them, and intervened on hearing conservation and safety. While working for Trans World Airlines, Dr. Pannet monitored some 30,000 employees worldwide.

The evaluation of the employee by Dr. Parmet involved a records review, without examination of the employee. As part of his evaluation of the employee, Dr. Parmet issued two separate repo1ts, dated August 4, 2016, and August 29, 2016. Based on his review of the medical records and other documents provided to him, Dr. Pannet opines that Mr. Guinn suffers from Parkinson's disease and hearing loss.

Testimony as to Parkinson's Disease

In defining the term Parkinson's disease, Dr. Parmet states,

Parkinson's disease describes a deficit of a specific chemical transmitter in the brain, primarily affecting the portion of the brain called substantia nigra, but it affects other po1tions of the brain. A neurotransmitter is a chemical method of sending information across a synapse. A synapse is a junction between a nerve coming out of one neuron, actually the exiting po1tion called the axon, and that

WC-32-RI (6-81) Page 12


may touch another nerve or it may touch a muscle or some organ to transmit information to it. There are different kinds of chemicals that cross that synapse, one of the most common of them in the human brain is called dopamine. And the neurons that produce dopamine, particularly in the p01iion of the brain called the substantia nigra, degenerate, stop producing and stop functioning causing a syndrome called Parkinson's disease.

It also goes by the term "paralysis agitans" because the individuals have quite a few manifestations altering their ability to move their muscles, they have resting tremors, they're very stiff in their motion and activities. It begins to affect them globally, because it's not just the motor functions, there are cognitive issues, all sorts of function within the brain, memory and senses.

When asked if Parkinson's disease gets worse over time, Dr. Parmet testified, "It always gets worse, it's a degenerative disease and it gets worse over time. There's a variable course in how rapidly that downhill progress occurs." Medications are used to slow the effects of Parkinson's disease, but it continues to progress. As noted by Dr. Parmet, "The medications can completely relieve the symptoms up to a point, but eventually they are unable to completely control the symptoms, the degeneration occurs and the disease progresses downhill, and it's ultimately fatal to individuals."

Dr. Pannet testified that Mr. Guinn's Parkinson's disease was clearly present in 2003 with Employee's worsening tremor, but there were also indications futiher back in time as well. Those indications are loss of sense of smell and taste, as those are often the very first indication of brain degeneration. Dr. Parmet testified the medical records show Mr. Guinn's Parkinson's disease was deteriorating from May 2003 to March 2006. The doctors "were working with different medications and different doses to try and improve control and ameliorate the symptoms, but clearly his Parkinson's is progressing."

Also, Dr. Pannet notes that the medical records of Dr. Duff on August 12, 2005, indicate that Mr. Guim1 was having tremors in both arms, although the left arm was more pronounced. As to this concern, Dr. Parmet indicates that the medical records of Dr. North, dated September 16, 2005, reveals Dr. North expressing opinion that the Parkinson's disease had gotten worse, and Dr. North did not believe Mr. Guinn would be able to continue working and referred Mr. Guinn for a disability evaluation.

Dr. Pannet testified that the medical records of Dr. Duff, dated December 21, 2005, reveals Mr. Guinn's Parkinson's disease was affecting him so severely that Dr. Duff believed Mr. Guinn was not able to work anymore. Dr. Pannet testified that the employee was having difficulty with coordination, motor skills, his ability to balance, and muscle fatigue. When asked how Mr. Guinn's Parkinson's disease impacted Mr. Guinn at work leading up to March 1, 2006, Dr. Parmet testified, "I would say coming from Mr. Gui1m's testimony that he was mostly fatigued and having some general weakness and people were trying to accommodate him, giving him lighter duties and less and less physical activities, and assisting him when he had to lift things."

WC~J2.Rl {6-S.1) Page 13


Based on the medical records involving treatment after March 1, 2006, Dr. Pannet testified that Mr. Guinn's Parkinson's disease "declined slowly over time." "\\'hen asked why he believes Mr. Guinn's Parkinson's disease declined over time, Dr. Parmet testified, "There is discussion of increasing medications, using different treatments, ultimately talking about stimulators being placed, so these are all things that just always occur with Parkinson's, and the only question is how fast you decline because you will decline, it's a progressive disease." Dr. Parmet further notes that the medical records of Dr. Duff, dated September 18, 2007, indicates the presence of toe dystonia and deterioration of Parkinson's disease. As to this concern, Dr. Parmet states:

Dystonia is a muscle dysfunction, the muscles are very rigid. Now he was not only having this - - typically they're central, that is around your torso and people have trouble getting up and initiating motion, but when you start getting into your feet and fingers, that's kind of a bad indicator that the disease is now progressing.

Dr. Parmet fmiher opines:

Mr. Guinn has idiopathic Parkinson's disease with some identifiable motor symptoms, probably present as early as 2002. It is clear from the medical records and notes from Dr. North and Dr. Habiger that the Parkinson's disease significantly impaired Mr. Guinn's ability to function and ultimately led to his decision to retire from Solo Cup in March 2006.

Dr. Parmet testified that the history provided to him indicates that the employee was receiving accommodation in his employment in the latter years of his employment. This accommodation, according to Dr. Parmet, related to the employee's Parkinson-induced fatigue. In considering the overall effect of the Parkinson's disease upon the employee as it existed at the time of the occupational injury of March 1, 2006, Dr. Parmet opined that the employee was permanently and totally disabled in 2006 due to the Parkinson's disease considered alone without consideration of the tinnitus. Dr. Parmet further opined that the employee's debilitating fatigue, as well as tremors and loss of coordination created complete and total disability. When asked if the employee could have continued working with the Parkinson's disease past March 2006, Dr. Pannet testified:

Clearly Parkinson's was seriously affecting Mr. Guinn's ability to work. Both from the medical record and from his own testimony he was experiencing considerable amounts of fatigue, weakness, balance problems. I ce1iainly would not have approved, and historically have seen people exactly like Mr. Guinn with progressive Parkinson's disease, remove them from the workplace at any level of physical labor, attempted to accommodate them. But typically the most they can do is some sedentary and sometimes some light activities and they will often have to take rest breaks during the day.

When asked if he believes the employee became permanently and totally disabled from the open labor market due to the effects of Parkinson's disease in isolation, Dr. Parmet testified:

I would say based upon the medical records, documentation of Mr. Guinn' s impairment, he clearly would be very restricted in the labor market to sedentary

WC-32-RI (6-8!) Page 14


and possibly some light level of labor. Whether he was completely disabled would require a vocational assessment, which adds in some factors that are outside my area of expertise. But on a physical bases he clearly would not - -would be quite limited.

On cross-examination, Dr. Pannet testified that at the time Mr. Guinn left his employment with the employer in March 2006, Mr. Guinn was employable and capable of engaging in sedentary employment. In this regard, Dr. Parmet propounds the following testimony:

Q. So as far as we know and you've already testified that you believed he [the employee J was capable of at least doing light work at the time he left employment in March 2006, and that is borne out by the records of Dr. Duff as well, correct?

A. Well, I said he was capable of sedentary and probably accommodated light duty as well, and that would be compatible with Dr. Duffs records and Mr. Guinn's testimony.

Testimony as to Tinnitus & Hearing Loss

In defining or explaining the term tinnitus, Dr. Pannet states,

Tinnitus (tin-ih-tus, not tin-I-tis) is a perception of noise or ringing in the ears; it affects approximately 20% of all adults. Tinnitus is the perception of sound when there is no external source for that sound. (Levine, R.A. and Oron. "Chapter 23: Tinnitus". Handbook of Clinical Neurology. 129:409-31, 2015. Elesevier Publishing).

There are many, many causes of tinnitus, and there can be actual organic problems which are termed "objective tinnitus" which indicates that an outside observer can also perceive the noise, usually by placing a stethoscope over the ear. This demonstrates that there is some sound generator within the individnal's head, such as pulsing of an artery.

Most tim1itus, however, is subjective; that is, only the individual can perceive the sound and others cmmot hear it. The causes are myriad and can be associated with hearing loss. Anyone who has experienced a loud noise or a traumatic blow to the head will have at least experienced a transient episode of tinnitus, ringing in the ears. Other sounds, like crickets or pings may be perceived. In addition, tinnitus can occur with infections, ear wax impaction, noise-induced sensorineural hearing loss, age-associated hearing loss, degenerative disease such as Meniere's, and toxic effects from chemicals and ce1tain antibiotics. Titmitus can also occur with many illnesses such as thyroid disease, vitamin deficiencies, depression, migraine, and anemia. The most probable cause of tinnitus is damage to the nerve cells within the cochlea itself - although other categories include tinnitus generated in the acoustic nerve or even in the brain itself.

WC-32-Rl (6-81) P~ge IS


Dr. Parmet testified an outside observer cannot detetmine if a person actually has subjective tinnitus, nor can an outside observer determine what exactly the person is hearing. An outside observer can only rely on the person's complaints or descriptions of the hearing problems. According to Dr. Parmet, tinnitus is most problematic in a quiet enviromnent. An enviromnent with background noise masks tinnitus. Tinnitus is thus treated by giving the individual background noise, which serves as a distraction from the ringing or cricket sounds.

Also, Dr. Parmet testified that while the existence of tinnitus cannot objectively be determined, the disability from tinnitus can be objectively determined. In this context, he states that speech-reception threshold testing and also a discrimination score can determine if subjective complaints of tinnitus actually impair an individual's ability to communicate. When asked if both tests have to be done together or if one is determinative on its own, Dr. Parmet propounded the following testimony:

A. Well, one can stand on its own. The speech reception threshold if it's low and normal is going to be fine, because you don't get a discrimination score until you start missing them at higher levels. Effectively they're done together, so, you know, at least in my practice we always do them simultaneously, because one is based on a calculation of the other.

Q. If you have a speech reception threshold result that is notmal even without a discrimination score, what does that indicate?

A. W'ell, then if you've got a normal speech reception threshold, you've already said the discrimination score is going to be in the normal range as well, and you should have calculated it. But regardless, it just tells you that they're able to communicate effectively at an acceptable level of sound.

As to the issue of hearing loss, Dr. Patmet acknowledges that the employee has demonstrable hearing loss, but he is not convinced that it is occupational in nature. In this context, Dr. Parmet states:

[T]he origin of Mr. Guinn's hearing loss has not been accurately established, and he probably has a mixed-hearing loss with contributions from age, Parkinson's disease, infections, and allergies, as well as occupational noise. Any or all of these could be causing and contributing to tinnitus. I once again state that the results of the objective evidence of speech-reception thresholds and discrimination scores cause me to believe, to a reasonable degree of medical certainty, that there is no measurable degree of Disability due to tinnitus.

Yet, Dr. Pannet acknowledges that the employee's hearing loss "could be" work related. Dr. Parmet insists on providing a more definitive opinion based on additional testing, stating that the Weber and Rinne tests are necessary to narrow down exactly what has caused the employee's hearing loss. Further, Dr. Parmet states that objective testing for hearing loss is an audiogram, which is a form of pure-tone testing. However, "Pure-tone testing will not, in and of itself, determine what kind of hearing loss occurs." (Exhibit X, pg. 4)

WC-32-R\ (6-81) Pagl' 16


On cross-examination, Dr. Parmet acknowledged that he was never provided with the industrial hygiene noise studies performed at the request of Solo Cup Company in 1995, 1997, and 2007 to determine the noise levels at the plant, and he did not review or consider these studies in the rendering of his opinions. Further, Dr. Parmet testified that he was not surprised some of the jobs performed by the employee were in areas that had noise levels over 100 decibels and that amount of noise would cause hearing damage. As to recognition of an occupational hearing loss, Dr. Parmet testified" ... hearing loss is quite possible here, and in my discussion I've mentioned that noise-induced hearing loss is possible and probably part of what Mr. Guinn has."

Yet, Dr. Parmet testified he could not give an opinion on medical causation of the employee's loss of hearing and tinnitus because he would need to perform a number of tests before he could give such an opinion. As to this concern, Dr. Parmet propounded the following testimony:

A. But specifically he hasn't had a number of tests that are outlined here, never had Weber and Rinne tests, he has not had an auditory voe response, he had not had additional studies such as a current MRI looking for other potential causes.

Q. Other testing? A. Say again.

Q. Any other testing or evaluations that you think would be necessary? A. Some of these are driven by your results of these tests, so, yeah, there are

potentially other tests, but you wouldn't do them without doing these other ones first

* * *

Q. Now, if all these tests were performed, would you then have sufficient information to give a definitive diagnosis as to causation of potential disability?

A. I believe I could.

Q. But you can't at this point? A. No, and therefore you cannot make a blanket statement that it's all due to

noise.

Q. A.

Q. A.

Q.

WC-32-RJ (6--SJ)

But you can't make a blanket statement that is not due to noise either? Well, I can certainly tell you the conductive loss is not due to noise.

But not the other loss? The other loss, as I said, I think he's got a mixed hearing loss it wouldn't surprise ifthere was a noise component.

And explain what the noise component would be if it's there.

P:ige-17


A. Well it shows up in high frequency first and then you have to look as to whether it impacts speech frequency, and you have to account for the patterns of conductive hearing loss there, because that's not due to any neurologic loss. We would have to look at the ABR and see if there's some evidence of the Parkinson's affect there as well.

Also, in discussing the effect of tinnitus upon an individual, Dr. Parmet acknowledged on cross-examination that tinnitus would be extremely bothersome to someone who had sufficient problems with it. Dr. Parmet testified it would not surprise him the employee had advised the audiologist he had tinnitus in both ears for over 20 years given the fact that he worked in such a noisy environment for so long.

FINDINGS AND CONCLUSIONS

The workers' compensation law for the State of Missouri underwent substantial change on or about August 28, 2005. The burden of establishing any affirmative defense is on the employer. The burden of proving an entitlement to compensation is on the employee, Section 287 .808 RSMo. Administrative Law Judges and the Labor and Industrial Relations Commission shall weigh the evidence impartially without giving the benefit of the doubt to any patiy when weighing evidence and resolving factual conflicts, and are to construe strictly the provisions, Section 287.800 RSMo.

I. Incident of Occupational Disease & Injury

The underlying issue presented in this case is whether the employee sustained injuries in the nature of hearing loss and tinnitus by an incident of occupational disease, as a consequence of his employment with the employer, Solo Cup Company. The adjudication of this issue requires consideration of Section 287.063, RSMo, Section 287.067, RSMo, and Section 287.197, RSMo.

Section 287.063, RSMo, in relevant part, states:

1. An employee shall be conclusively deemed to have been exposed to the hazards of an occupational disease when for any length of time, however short, he is employed in an occupation or process in which the hazard of the disease exists, subject to the provisions relating to occupational disease due to repetitive motion, as is set f01ih in subsection 8 of section 287.067.

2. The employer liable for the compensation in this section provided shall be the employer in whose employment the employee was last exposed to the hazard of the occupational disease prior to evidence of disability, regardless of the length of time of such last exposure, subject to the notice provision of section 287.420.

The term "occupational disease" is defined in Section 287.067, RSMo. In pe1iinent paii, this statute states:

WC-32-Rl (6-8l) P,,g~ 18


1. In this chapter the term "occupational disease" is hereby defined to mean, unless a different meaning is clearly indicated by the context, an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.

2. An injury by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

In addition, in context of an occupational disease claim involving hearing loss, the medical condition and disability must be determined in light of Section 287.197, RSMo. In pertinent part, this statute states:

1. Losses of hearing due to industrial noise for compensation purposes shall be confined to the frequencies of five hundred, one thousand, and two thousand cycles per second. Loss of hearing ability for frequency tones above two thousand cycles per second are not to be considered as constituting disability for hearing.

2. The percent of hearing loss, for purposes of the determination of compensation claims for occupational deafness, shall be calculated as the average, in decibels, of the tln·esholds of hearing for the frequencies of five hundred, one thousand, and two thousand cycles per second. Pure tone air conduction audiometric instruments, approved by nationally recognized authorities in this field, shall be used for measuring hearing loss. If the losses of hearing average twenty-six decibels or less in the tln·ee frequencies, such losses of hearing shall not then constitute any compensable hearing disability. If the losses of hearing average ninety-two decibels or more in the tlu·ee frequencies, then the same shall constitute and be total or one hundred percent compensable hearing loss. The decibel standards established by this subsection are based on the most current ANSI occupational hearing loss standard. The division shall, by rule, adopt any superseding ANSI occupational hearing loss standards regarding testing frequencies and decibel standards for measuring hearing loss.

3. There shall be payable as permanent pmiial disability for total occupational deafness of one ear forty-nine weeks of compensation; for total occupational deafness of both ears, one hundred eighty weeks of compensation; and for partial occupational deafness in one or both ears, compensation shall be paid for such periods as are proportionate to the relation which the hearing loss bears to the

\\'C-32-Rl (6-SJ) Page 19

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Phillip Guinn lltjuryNo. 06-136330

amount provided in this subsection for total loss of hearing in one or both ears, as the case may be. The amount of the hearing loss shall be reduced by the average amount of hearing loss from nonoccupational causes found in the population at any given age, according to the provisions hereinafter set fo11h.

4. In measuring hearing disability, the lowest measured losses in each of the tln·ee frequencies shall be added together and divided by three to determine the average decibel loss. For every decibel of loss exceeding twenty-six decibels an allowance of one and one-half percent shall be made up to the maximum of one hundred percent which is reached at ninety-two decibels.

5, In determining the binaural (both ears) percentage of loss, the percentage of disability in the better ear shall be multiplied by five. The resulting figure shall be added to the percentage of disability in the poorer ear and the sum of the two divided by six. The final percentage shall represent the binaural hearing disability.

6. Before determining the percentage of hearing disability, in order to allow for the average amount of hearing loss from nonoccupational causes found in the population at any given age, there shall be deducted from the total average decibel loss, one-half decibel for each year of the employee's age over forty at the time of last exposure to industrial noise.

7. No claim for compensation for occupational deafness may be filed until after one month's separation from the type of noisy work for the last employer in whose employment the employee was at any time during such employment exposed to harmful noise, and the last day of such period of separation from the type of noisy work shall be the date of disability.

Also, it is recognized and understood by the courts that tinnitus is a compensable occupational disease that is separate and distinct from occupational deafness. Poehlein v. Trans World Airlines, Inc., 891 S.W.2d 505, 506-07 (Mo. App. E.D. 1994)(overruled on other grounds by Hampton, 121 S.W.3d at 228). Accordingly, while the hearing loss claim is governed by Section 287.063, RSMo, Section 287.067, RSMo, and Section 287.197, RSMo, the latter statuteSection 287.197, RSMo has no applicability as to the tinnitus claim. Section 287.197, RSMo applies only to occupational deafness.

In the case of Vickers v. Missouri Department of Public Safety, 283 S.W.3d 287 (Mo. App. W.D. 2009), the court discussed the burden of proof and evidence necessary for an employee to establish that an occupational disease is compensable under Section 287.067, as the law existed prior to the 2005 amendments. The court stated as follows, at 283 S. W.3d at 292 et seq.:

In proving a causal connection between the conditions of employment and the occupational disease, the claimant bears the burden of proof; to prove causation it is sufficient to show a recognizable link between the disease and some distinctive feature of the job ... and there must be evidence of a direct causal connection between the conditions under which the work is performed and the occupational disease. However, the cause and development of an occupational disease is not a

WC-32-RJ (6-81) Page 20


matter of common knowledge. There must be medical evidence of a direct causal coru1ection. . . . 'A claimant must submit medical evidence establishing a probability that working conditions caused the disease, although they need not be the sole cause.' . . . 'Even where the causes of the diseases are indeterminate, a single medical opinion relating the disease to the job is sufficient to support a decision for the employee.'

Notably, however, the court's discussion of proving causation in Vickers must be viewed in context of Section 287.067, RSMo as amended in 2005. The Amendments to this statute changed the causation factor to require that the occupational exposure be the "prevailing factor" in relation to causation. See, Lawson v. Ford Motor Co., 217 S.W.3d 345 (Mo. App. E.D., 2007). In discussing this new requirement, the court in Lawson stated,

The legislature amended several sections of the Workers' Compensation Act in 2005. In particular, portions of section 287.067 and 287.020 were rewritten. Specifically, section 287.067.2 discusses when an injury by occupational disease is considered compensable. Prior to 2005, the section stated that such an injury will be compensable if it "is clearly work related and meets the requirements of an injury which is compensable as provided in subsections 2 and 3 of section 287.020." Subsections 2 and 3 of section 287.020 previously contained definitions for "accident" and "injury." Prior to 2005, those definitions included language which concluded that an injury was compensable if it is work related, which occurs if work was a "substantial factor" in the cause of the disability.

After the 2005 amendments to the statutes, the definition of a compensable injury by occupational disease was changed to use the language "prevailing factor" in relation to causation. Specifically, section 287.067.2 states:

An injury by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The 'prevailing factor' is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

Section 287.020.3 defines "injury" using similar terms.

217 S.W.3d at 349-350 et seq.

In this case, there is strong "biological plausibility" that the employee suffered hearing loss and tim1itus from occupational noise exposure while working on and around an extruder machine in his employment with the employer, Solo Cup Company. The evidence presented in this case established among other things the following facts:

1. On or about February 8, 1987, Mr. Guinn obtained employment with the employer, initially working as a packaging equipment serviceman. After the first year of his

WC-32-RI (6-81) Page 21


employment with the employer, he changed depaiiments and began working in the foam department working as a foam attendant. He continued in this employment until March 1, 2006.

2. In his employment with Solo Cup Company, Mr. Guinn was responsible for running a foam extruder machine. The extruder machine mixes plastic pellets, citric acid, and oil and through a heating process produces foam sheets for the making of foam cups.

3. The entire manufacturing plant and work envir01nnent of Mr. Guirm for the period he engaged in employment with Solo Cup Company was very noisy, sufficient to cause the employer to utilize and obtain throughout Mr. Quinn's employment with Solo Cup Company industrial hygiene surveys, which provided testing for potential employee exposures to noise and airborne contaminants from extrusion, receiving, distribution, maintenance, and other plant operations.

4. The industrial hygiene survey performed at Solo Cup Company on July 18, 2007, provided results indicating that eight operations in the work environment produced noise levels above the OSHA AL (85 dBA - 8 hour average), requiring implementation of a Hearing Conservation Program. Further, this study determined that the noise levels demonstrated exposure above the company corporate guideline of 80 dBA for a time-weighted average exposure for all operations with the exception of \Vax Line Packing and Ink Room. Similarly, the noise exposures involving the same operations were above the OSHA action level of 82 for a twelve-hour exposure of 85 dBA for an eight-hour exposure.

5. The highest noise levels measured were in the foam regrind room at the operator location. Noise levels were 104 dBA most the time during grinding. The 111 dBA noise level was measured when sheets were first fed into the grinder. After a period of approximately 30 seconds, noise levels returned to the 104 dBA level. The operator of the grinder spends 60 percent of his full shift at the regrinder.

6. The entire plant was very noisy, but the extruder machine was extremely noisy.

7. Mr. Guinn wore earplugs and ear muffs but frequently had to remove his hearing protection in order to speak with co-employees and supervisors multiple times each day. The noise was so loud that individuals working on the floor were required to shout directly into each other's ear in order to be understood. Mr. Guinn could "feel the noise" and initially did not know if he wanted to continue working at Solo Cup because of the noise.

8. During his employment with the employer, Solo Cup Company, Mr. Guinn began experiencing a loss of hearing and ringing of the ears (tinnitus). Mr. Guinn describes this background noise as sounding like "cicadas." He did not receive any treatment for these two conditions other than being provided with audiograms by the employer as patt of hearing screening performed by the employer for employees.

9. In describing the onset of his hearing loss, Mr. Guinn noted that he first began to experience loss of hearing and tinnitus complaints, which he described as a cicada-

\\'C-32-RI (6-81) Page22

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Phillip Guilm Iqjmy No. 06-136330

like chirping sound approximately two years after staiting work at Solo Cup. His tinnitus worsened until it reached a plateau in the early 2000s and has stayed the same since that time.

10. On January 14, 2013, January 15, 2013, and January 23, 2013, the employee obtained three separate audiograms for both the right ear and left ear. These audiograms demonstrated that Mr. Guinn's best average hearing tln·eshold for the right and left ears are as follows:

• Right Ear: The average hearing tln·eshold for the right, for 500 hertz, 1,000 he1tz, and 2,000 hertz is 38.3 decibels. When subtracting and taking into account Mr. Guim1's age, his age-corrected best average hearing tln·eshold at 500 hertz, 1,000 he1tz, and 2,000 hertz is 26.8 decibels. According to Dr. Koprivica, this finding results in a one point two (1.2) percent age-corrected monaural hearing impairment for 500 he1tz, 1,000 hertz, a11d 2,000 hertz on the right.

• Left Ear: The average hearing threshold for the left, for 500 he1tz, 1,000 hertz, and 2,000 hertz is 43.3 decibels. When subtracting and taking into account Mr. Guinn's age, his age-corrected best average hearing tln·eshold at 500 he11z, 1,000 hertz, ai1d 2,000 hertz is 31.8 decibels. According to Dr. Koprivica, this finding results in an eight point seven (8.7) percent agecorrected monaural hearing impairment for 500 hertz, 1,000 hertz, and 2,000 hertz on the left.

e Binaural Hearing Impairment: According to Dr. Koprivica, this finding demonstrates a binaural hearing impairment, which, by statute, represents a two point five (2.45) percent hearing impairment.

11. Mr. Guinn experiences constant and extremely loud chirping sound from tinnitus as well as severe high frequency hearing loss, which cause him to experience disability in speech discrimination.

In considering the testimony of the employee, wherein he describes the nature of his employment and the noise in his work environment, for the period of his employment with Solo Cup Company, I find Mr. Guiim credible, reliable, and worthy of belief. Similarly, I find Mr. Guinn credible in describing the effects of his hearing loss and the effects of suffering from tinnitus, including the "cicada-like" sounds or ringing in the ears. I accept as true Mr. Guim1's testimony regarding work activity and exposure to hazardous noise levels.

In addition, based on his review of the employee's medical records, including the industrial hygiene noise data, Dr. Koprivica determined that the studies evidenced significant high frequency hearing loss. Also, Dr. Koprivica determined that Mr. Guinn suffers from severe tim1itus bilaterally, which is constant. In examining the cause for the hearing loss and thmitus, Dr. Koprivica opined to a reasonable degree of medical certainty the employee's exposure to noise at Solo Cup Company was the prevailing factor in his development of occupational hearing loss and bilateral tim1itus. In considering the medical opinions of Dr. Koprivica and Dr. Pannet,

WC-32-Rl (6-81) Page23

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Phillip Guinn htjury No. 06-136330

I resolve the differences in favor of Dr. Koprivica, who I find credible, reliable, and worthy of belief.

Accordingly, after consideration and review of the evidence, I find and conclude that or about March 1, 2006, the employee sustained injuries in the nature of hearing loss and tinnitus by an incident of occupational disease in the nature of occupational exposure to noise. This incident of occupational disease arose out of and in the course of his employment with the employer, Solo Cup Company. Fmther, the prevailing factor in relation to causation is the demands of the job that Mr. Guinn performed in his employment with the employer, Solo Cup Company, and the exposure to high frequency noise while working on and around the extrusion machine. Further, this occupational exposure to the high frequency noise presented him with a greater risk of developing the injury than that faced by the general public.

IL Notice

An employee who sustains a workers' compensation injury in Missouri is required to provide his or her employer with timely written notice of the injury, and the failure to provide such notice may result in the employee not being able to maintain a proceeding for compensation. The notice provision is set forth in Section 287.420, RSMo (2006), which, in relevant pait, states,

No proceedings for compensation for any occupational disease or repetitive trauma under this chapter shall be maintained unless written notice of the time, place and nature of the injury, and the name and address of the person injured, has been given to the employer no later than thirty days after the diagnosis of the condition, unless the employee can prove the employer was not prejudiced by failure to receive the notice.

In Allcorn v. Tap Enterprises, 277, S.W.3d 823, (Mo. App. S.D. 2009) the Comt of Appeals noted that this notice statute incorporates six elements -- (1) written notice, (2) of the time, (3) place, and (4) nature of the injury, and (5) the name and address of the person injured, (6) given to the employer no later than thirty days after the diagnosis of the condition. Id at 828-30. Further, the court interpreted the sixth element as being triggered once a "diagnostician makes a causal connection between the underlying medical condition and some work-related activity or exposure." Id.

Notably, the recent change in the law from the former statute requires notice to be given in cases involving ai1 incident of occupational disease or repetitive trauma, which the notice statute did not previously require. Otherwise, the change appears minimal. The former statute stated the following:

WC-32-RI (6-81)

No proceedings for compensation under this chapter shall be maintained unless written notice of the time, place and nature of the htjury ... has been given to the employer as soon as practicable after the happening thereof but not later than thit1y days after the accident, unless ... the employer was not prejudiced by failure to

Page 24

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Phillip Guinn

receive notice.

Section 287.420, RSMo

Injury No. 06-136330

In light of the similarity between the two statutes, I am persuaded that the new statute does not change the purpose of the underlying notice requirement. Namely, the notice requirement is twofold - to enable the employer to conduct an accurate and thorough investigation of the facts surrounding the injury; and to ensure that the employer has the oppmiunity to minimize the employee's iajury by providing prompt medical treatment. A1essersmith v. A1issouri - Columbia I Mt. Vernon, 43 S.W.3d 829 (Mo.bane 2001). See also, Seyler v. Spirtas Industrial, 974 S.W.2d 536 (Mo.App. E.D. 1998). Accordingly, as in the past, giving notice is not an unconditional prerequisite to recovery. The failure to give timely written notice may be excused if it is determined that the failure to provide timely notice did not prejudice the employer. The evidence in the record need not be overwhelming or uncontroverted. Id.

Further, in the context of determining whether the employer has been prejudiced by the lack of timely written notice, several familiar principles applicable to the former statute bear reprise. The burden is upon the claimant to demonstrate that the employer did not suffer any prejudice. Actual notice of the accident within 30 days is a prima facie showing that the employer was not prejudiced by the lack of the requisite notice. Seyler at 538. Upon a prima facie showing, the burden shifts to the employer to demonstrate that it was prejudiced by the failure of the notice to be in writing. Id. In the absence of the employer having actual notice of the accident within 30 days, the burden is upon the claimant to produce evidence demonstrating that the employer was not prejudiced in its ability to conduct an accurate and thorough investigation of the facts stll1'ounding the injury; and the employer was not prejudiced in its ability to minimize the employee's injury. Id. In the context of this issue, I am persuaded that these principles may similarly guide construction and application of Section 287.420, RSMo (2006) to the facts of this case.

The evidence presented in this case reveals that no diagnostician made a causal connection between the work exposure to noise and Mr. Guinn's hearing loss and tinnitus until Dr. Koprivica did in his report dated May 22, 2013, after the claim had been filed and notice provided. Further, the employer cannot claim prejudice, insofar as it obtained multiple industrial hygiene studies evaluating the noise levels in the plant operation, including the work performed by the employee. Therefore, I find that notice was timely provided. This issue is resolved in favor of the employee.

III. Statute of Limitations

The Second Injury Fund alleges that employee's claim is barred by the statute of limitations set forth in Section 287.430 RSMo. Section 287.060.3 states that "the statute of limitations refe1Ted to in Section 287.430 shall not begin to run in cases of occupational disease until it becomes reasonably discoverable and apparent that an i1tjury has been sustained related to such exposure .... " Section 287.067.4 recognizes loss of hearing due to industrial noise is an occupational disease for purposes of the workers' compensation statute.

WC-32-RI (6--81) Page 25


As noted by the Southern District:

... the statutory language in§ 287.063.3 requiring an occupational disease to be "reasonably discoverable and apparent" has long been interpreted to mean that the running of the statute of limitations commences "[i]f it becomes reasonably discoverable and apparent to the employee that he needs medical or surgical treatment" . . ..

Cook v. ~Missouri Highway and Transportation Commission, 500 S.W.3d 917, 928 (Mo. App. 2016).

The evidence presented in this case establishes that Dr. Koprivica was the first doctor to advise the employee his hearing loss and tinnitus were caused by long-term exposure to noise at Solo Cup Company. This evaluation occun-ed on May 22, 2013, and this date establishes the reasonably discoverable and apparent date that the employee sustained an occupational injury related to the occupational exposure to noise in his employment with Solo Cup Company.

The employee filed his claim against the Second Injury Fund on May 7, 2014. This is within one year of the commencing of the statute of limitations. Accordingly, the Claim for Compensation as filed against the Second Injury Fund was timely filed within the applicable period of limitations.

IV. Dependency

Ms. Guinn testified she has been married to the employee for more than 34 years. She was married to the employee at the time of the incident of occupational disease, at the time of the filing of the Claim for Compensation, and she remains married to the employee. Therefore, the employee qualifies as a dependent under Schoemehl v. Treasurer of the State of lvfissouri, 217 S.W.3d 900 (Mo. bane 2007).

V. Nature & Extent of Permanent Disability

The evidence presented in this case is supportive of a finding that as a consequence of occupational disease under date of injury of March I, 2006, the employee, Phillip Guinn, sustained an occupational disease that arose out of and in the course of his employment with Solo Cup Company. The evidence is fmiher supp01iive of a finding that as a consequence of this occupational disease Phillip Guinn sustained injuries in the nature of hearing loss and tinnitus.

As a consequence of the tinnitus, Mr. Guinn hears a very loud and constant "cicada-like" chirping noise 24 hours a day, 7 days a week, which interferes with his ability to hear and understand speech. As a consequence of the hearing loss, Mr. Guinn has difficulty hearing and understanding individuals, which makes conversation difficult. When an individual speaks to him, the individual needs to speak loudly, and he needs to be able to be close enough to "read the lips" of the other person in order to help him understand the conversation. He has worn hearing aids for the last two years and they help, but they have no effect on the constant chirping sound

WC-32-Rl {6-81) Pag~ 26

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Phillip Guinn htjuryNo. 06-136330

from tinnitus blocking his ability to hear. When he watches TV, it has to be on the loudest level and he always uses closed-captioning.

Fmther, the hearing loss and tinnitus are partly responsible for causing headaches and making it difficult for Mr. Guinn to concentrate. Additionally, the chirping sound in his ears causes him difficulty sleeping, and he has taken sleep medication since he developed tinnitus. He indicated because of his sleep difficulty, he is often fatigued, which also contributes to his difficulty focusing.

Also, Dr. Koprivica opined that a hearing amplification was necessary. Dr. Koprivica opined the constant and extremely loud chirping sound from tinnitus combined with severe high frequency hearing loss causes the employee to experience disability in speech discrimination. In considering the nature and extent of the permanent disability attributable to the hearing loss and tinnitus, Dr. Koprivica opines that the employee has sustained a permanent partial disability of 12.5 percent to the body as a whole referable to the tilmitus and high frequency hearing loss, and a permanent pmtial disability of 2.45 percent at the 180-week level, referable to the statutory hearing loss.

Further, considering the nature and effect of this disability upon Mr. Guinn, Dr. Koprivica opined that Mr. Guim1 is governed by pennanent restriction, and the employee should be restricted from work requiring normal speech discrimination because of the combination of his thmitus and high frequency hearing loss. In this regard, Dr. Koprivica notes that the employee experiences particular difficulties with speech discrimination with background noise.

After consideration and review of the evidence, I find and conclude that the work injury of March 1, 2006, caused Phillip Guim1 to be governed by certain restrictions and limitations, which constitute a hindrance or obstacle to employment. I further find and conclude that this work injury caused the employee to sustain a permanent pmtial disability of 12.5 percent to the body as a whole, referable to the tinnitus; and this work iajury caused the employee to sustain a pe1manent pmtial disability of 2.45 percent at the 180-week level, referable to the statutory hearing loss.

In addition, I find and conclude that the work injury of March 1, 2006, considered alone and in isolation, does not render the employee pennat1ently totally disabled.

VI. Liability of Second Injury Fund

I find and conclude that the employee, Phillip Guinn, sustained a work injury in the nature of occupational disease on March 1, 2006, which caused him to sustain a permanent pa1tial disability of 12.5 percent to the body as a whole, referable to the tilmitus (50 weeks); and a pennanent partial disability of 2.45 percent at the 180-week level, referable to the statutory hearing loss (4.41 weeks). Because of this injury, the employee is governed by limitations and restrictions. This injury presents a hindrance and obstacle to employment or potential employment.

WC-32-Rl (6--8!)


Further, prior to March 1, 2006, the employee suffered from significant preexisting disability referable to his Parkinson's disease. Notably, the Second Injury Fund acknowledges the severity of this preexisting disability as both a pe1manent disability and as an industrially disabling condition, arguing that this condition considered alone on March 1, 2006, renders the employee permanently and totally disabled. In suppo1t of this position, the Second Injury Fund relies upon the medical opinions of Dr. Patmet. Fmther in arguing this point, the Second Injury Fund suggests that the employee is misrepresenting the severity and progression of this disease as it existed on March 1, 2006, and continuing thereafter.

Also, in presenting its argument on this issue, the Second Injury Fund argues that the evidence is supportive of a finding that the employer provided accommodations to the employee during the last year ( or longer) of his employment with the employer, and the employee terminated his employment solely because of the Parkinson's disease. As to this contention, I agree. Although the employee minimizes the extent of his Parkinson's disease, I believe the disease was impacting the ability of the employee to engage in the physical labor required in his employment with Solo Cup Company, particularly during the last year of his employment, and he was receiving accommodations in his employment.

The evidence is supportive of a finding, and I find and conclude that during the last year of the employee's employment with the employer, he was experiencing difficulty with his Parkinson's disease in the performance of his work duties and received accommodations that enabled him to continue in his employment. Prior to March I, 2006, Phillip Guinn suffered from a significant preexisting disability referable to Parkinson's disease. This preexisting condition physically impacted Phillip Guinn's ability to perform ce1tain activities and to be governed by limitations and restrictions.

Yet, the evidence is further supportive of a finding that at the time of his termination of employment with Solo Cup Company, the Parkinson's disease considered alone did not render the employee unemployable in the open and competitive labor market. He was capable of performing sedentary employment, as acknowledged by Dr. Pannet. However, when the effect of the Parkinson's disease is combined with the effects of the hearing loss and tinnitus, the employee lacked the capacity to engage in sedentary employment and was rendered permanently and totally disabled. The combined effect of the hearing loss and tinnitus and the Parkinson's disease prevented him from vocational opportunity to engage in sedentary employment. This finding is consistent with the medical opinions of Dr. Koprivica.

Moreover, while Parkinson's disease is a progressive disease, which considered alone may have the effect of rendering the employee unemployable in the open and competitive labor market sometime in the future, this is speculative and not a defense to Second Injury Fund liability for permanent total disability. The test for permanent total disability is measured at the time of the work injury (March 1, 2006), and on this date the combined effect and only the combined effect of the work injury and the preexisting disability rendered the employee permanently and totally disabled.

Accordingly, after consideration and review of the evidence, including consideration of the medical opinion of Dr. Koprivica, I find and conclude that as a consequence of the occupational disease of March 1, 2006, involving injuries in the nature of hearing loss and tinnitus, in combination with the preexisting industrial disability in the nature of Parkinson's

WC-32-Rl (6-Sl) Pnge 28


disease, the employee is permanently and totally disabled. Therefore, the Second Injury Fund is ordered to pay to the employee, Phillip Guinn, the sum of $416.67 per week for the employee's lifetime. The payment of permanent total disability compensation by the Second Injury Fund is effective as of March 1, 2006, when he reached maximum medical improvement and his condition became permanent. Further, the payment of permanent total disability compensation shall take into consideration 54.41 weeks of permanent pattial disability, which is attributable to the employer and insurer.

The award is subject to modifications as provided by law.

An attorney's fee of25 percent of the benefits ordered to be paid is hereby approved, and shall be a lien against the proceeds until paid. Interest as provided by law is applicable.

I certify tr01 °" t../-1-/ 1 , I delivered a copy of the foregoing award lo !Pe p~rli~B to the C'l~a. A complete record of the method of dalivel)' and date of service upon each party Is retained with the executed award in !ha Division's case file.

By . ····4/V ···-··

WC-32-Rl (6-SI)

Made by: ~ L. ;I'1mothy Wilson

Chief Administrative Law Judge Division of Workers' Compensation

Page 29

issued by the labor and industrial relations …occupational deafness. because we conclude that...

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