Bader v. Norfolk Redevelopment & Housing Authority

• Decision Date: 28 August 1990
• Docket Number: No. 1124-89-1,1124-89-1
• Citation: 10 Va.App. 697,396 S.E.2d 141
• Court: Virginia Court of Appeals
• Parties: Richard F. BADER v. NORFOLK REDEVELOPMENT & HOUSING AUTHORITY, et al. Record

Page 141

396 S.E.2d 141

10 Va.App. 697

Richard F. BADER v. NORFOLK REDEVELOPMENT & HOUSING AUTHORITY, et al.

Record No. 1124-89-1.

Court of Appeals of Virginia.

Aug. 28, 1990.

Ralph Rabinowitz (Rabinowitz, Rafal, Swartz & Gilbert, Norfolk, on brief), for appellant.

Daniel R. Lahne (Knight, Dudley, Pincus, Dezern & Clarke, Norfolk, on brief), for appellees.

Present: KOONTZ, C.J., BAKER and BARROW, JJ.

KOONTZ, Chief Judge.

Richard F. Bader, claimant, appeals a decision of the Industrial Commission awarding him benefits for partial hearing loss due to loud noise exposure while working for Norfolk Redevelopment and Housing Authority, his employer. On appeal, Bader contends that the commission erred by utilizing the ANSI standard as a guideline for calculating loss of hearing rather than the American Medical Association (AMA) standard. Bader also asserts that, using the AMA standard, there was sufficient evidence to establish a hearing loss at a frequency greater than 2,000 Hertz (cycles per second). Because we find that the commission's opinion does not contain an adequate statement of the findings of fact to review whether the ANSI standard followed by the commission is valid according to the substantial weight of current medical opinion, we remand the case.

Richard Bader filed an application for workers' compensation benefits pursuant to Code §§ 65.1-46.1 and 65.1-56(17) for loss of hearing as a result of exposure to loud noise during his sixteen year employment with employer. The commission found that Bader's hearing loss was compensable, and this finding is not disputed. Rather, the parties disagree over the correct standard which should be used by the commission to measure the hearing loss. The commission determined that Bader had no hearing loss in his right ear and a five percent loss in his left ear according to the ANSI standard, which is incorporated in the Hearing Determination Chart appended to the Virginia Workers' Compensation Act, and made its award accordingly. Bader's physician, Dr. Berrett, determined that Bader sustained an 18.8 percent loss in his right ear and a 24.4 percent loss in his left ear, according to the AMA standard.

Bader asserts that the ANSI standard utilized by the commission is outdated. He argues that the ANSI measurements for hearing loss are significantly lower than AMA measurements, that the use of the ANSI standard deprives claimants of just compensation, and is contrary to the letter and spirit of the Act. Therefore, Bader argues, the commission should have used the AMA standard to determine the extent of his hearing loss.

The Hearing Determination Chart used as a guide by the commission in determining levels of compensable hearing loss is included in the "Tables" appended to the Workmen's Compensation Act, preceding the Rules of the Industrial Commission. The Tables also include the Snellen's Chart table for assigning a percentage of loss of visual acuity to Snellen Chart readings and the Pneumoconiosis Guide for determining the stages of pneumoconioses pursuant to Code § 65.1-56 for given radiographic findings. These tables, while commonly utilized by the commission, are merely guidelines and cannot take precedence over Code § 65.1-56, which they are designed to implement. See Smith v. Fieldcrest Mills, Inc., 224 Va. 24, 294 S.E.2d 805 (1982). The Tables are not the exclusive standards by which determinations can be made under the statute, see id., and they do not have the binding effect of rules or regulations.

Prior to the decision of the Virginia Supreme Court in Western Electric Co. v. Gilliam, 229 Va. 245, 329 S.E.2d 13 (1985), the Industrial Commission routinely awarded compensation for hearing losses caused by a claimant's exposure to noise at work pursuant to Code § 65.1-46, "even though the general public was also susceptible to noise induced hearing loss outside of the employment." Island Creek Coal Co. v. Breeding, 6 Va.App. 1, 8, 365 S.E.2d 782, 786 (1988) (citations omitted). The General Assembly enacted Code § 65.1-46.1 in response to the Gilliam decision, which held that an ordinary disease of life is noncompensable regardless of its causal connection to a claimant's employment. See id. at 8-9, 365 S.E.2d at 786-87. The purpose of the statute was to return the law to its former state. Id. at 9, 365 S.E.2d at 787. Following the adoption of Code § 65.1-46.1, work related hearing loss is clearly compensable as an ordinary disease of life. The rate of compensation for permanent total and partial loss of hearing is set forth in Code § 65.1-56(17). ¹ The statute does not contain a guideline for determining the percentage of permanent hearing loss. Rather, the commission is left to determine the percentage of hearing loss based on the evidence presented in each case. This determination typically involves the use of the Hearing Determination Chart appended to the Act. See Breeding, at 5 & nn. 5, 6, 365 S.E.2d at 784 & nn. 5, 6.

The Hearing Determination Chart is not a substantive rule of the commission subject to the Virginia Administrative Process Act (VAPA), Code §§ 9-6.14:1 through 9-6.14:25 or the Virginia Register Act, Code §§ 9-6.15 through 9-6.22. Cf. Haines v. Workmen's Compensation Commissioner, 151 W.Va. 152, 157, 150 S.E.2d 883, 886 (1966) (unwritten policy of commissioner is not a rule which must be filed in the office of the Secretary of State). A "rule" or "regulation" is defined under the VAPA and Virginia Register Act as "any statement of general application, having the force of law, affecting the rights or conduct of any person, promulgated by an agency in accordance with the authority conferred on it by applicable basic laws." Code §§ 9-6.14:4(F) and 9-6.16 (emphasis added).

The Hearing Determination Chart was not adopted pursuant to the commission's rule making authority under Code § 65.1-18 and therefore is not binding in law as are rules. See Sargent Elec. Co. v. Woodall, 228 Va. 419, 424, 323 S.E.2d 102, 105 (1984) (commission's adoption of rules is a legislative act and enactment is binding in law upon the parties and the commission). Neither is the Chart used as a standard with the force and effect of a substantive rule so that compliance with the notice and comment procedures of Article 2 of the VAPA was required for its publication. See Federal Farm Credit Banks Funding Corp. v. Farm Credit Admin., 731 F.Supp. 217, 223 (E.D.Va.1990) (agency required to comply with notice and comment requirements of federal APA before issuing accounting bulletin which interpreted generally accepted accounting principles and applied them to Farm Credit Insurance Fund); see also W. Va. Chiropractic Soc'y v. Merritt, 358 S.E.2d 432, 437 (W.Va.1987) (schedule setting forth maximum reasonable amounts payable to health care providers is rule required to be adopted in accordance with rule-making requirements of APA). The Chart is merely a guideline which the commission may use in determining the percentage of compensable hearing loss according to the ANSI standard. ² There is no binding rule of the commission requiring the use of the ANSI standard for measuring hearing loss. ³

In addition to its statutorily granted powers, the commission also has...