Thatcher v. Trans World Airlines

• Court: Missouri Court of Appeals
• Writing for the Court: Ronald R. Holliger
• Citation: Thatcher v. Trans World Airlines, 69 S.W.3d 533 (Mo. App. 2002)
• Decision Date: 26 February 2002
• Docket Number: No. WD 59192.,WD 59192.
• Parties: James C. THATCHER, Respondent, v. TRANS WORLD AIRLINES, Appellant.

69 S.W.3d 533

James C. THATCHER, Respondent, v. TRANS WORLD AIRLINES, Appellant.

No. WD 59192.

Missouri Court of Appeals, Western District.

February 26, 2002.

Thomas Clinkenbeard, Kansas City, for Appellant.

Mark Douglas Chuning, Kansas City, for Respondent.

RONALD R. HOLLIGER, Judge.

TWA appeals the decision of the Labor and Industrial Relations Commission finding that James Thatcher sustained a 34 1/3 percent disability for binaural occupational hearing loss at the 180-week level.

Facts

James Thatcher filed a worker's compensation claim against TWA for disability associated with occupational hearing loss. Thatcher was a welder for TWA for twenty-six years. Thatcher claimed that he was exposed to high levels of noise associated with rivet guns, high-speed grinders and air drills. On March 15, 1995, Thatcher was transferred to a different area at the TWA base, resulting in less noise exposure. This transfer came after he told his employer that he was developing hearing problems.

TWA agreed that Thatcher was covered by Missouri Workers' Compensation Act and that he had sustained an occupational disease in the form of hearing loss arising out of and in the course of his employment. The dispute between the parties concerns the extent of Thatcher's disability and its calculation.

The Hon. R. Carl Mueller, Jr., Administrative Law Judge, entered Findings of Fact and Conclusions of Law and awarded Thatcher a five percent body as a whole disability for tinnitus,¹ reimbursement of medical expenses and future medical treatment in the form of digital hearing aids and necessary replacement of the aids. TWA did not request review of these findings and awards. Further, Mueller found that Thatcher sustained a disability totaling 34 1/3 percent for binaural occupational hearing loss at the 180week level. TWA appealed this portion of the award to the Labor and Industrial Relations Commission, which affirmed and adopted the previous Findings of Fact and Conclusions of Law entered. TWA raises two points on appeal.

In its first point it argues that the Commission erroneously applied the law and more specifically misinterpreted the phrase "lowest measured losses" in § 287.197.4, RSMo 2000. As a result of this misinterpretation, TWA claims, the Commission utilized incorrect hearing loss measurements in calculating the percentage of workers' compensation disability under the statutory formula. If TWA is correct, then the Commission calculated a percentage of disability for hearing loss that did not follow the formula set forth by the statute.

In its second point TWA claims that the Commission erred in applying retroactively the 1998 amendments to § 287.190 which increased the number of weeks of compensation for total hearing loss from 168 weeks to 180 weeks. TWA asserts the statutory amendments were substantive and therefore not subject to retroactive application.

Testing Hearing Levels

The testing of hearing loss is extremely complicated. An understanding of basic terms is necessary to understand the issues in this case.² The term decibel is used to express the intensity of sound. The hearing threshold level is the softest level that a person can hear a pure tone generated by an audiometer at a given frequency. Measurement is by decibel hearing threshold level (dbHTL). Frequency is the number of sound waves or vibrations in a specified time period. The unit of measurement is cycles per second (Hz). Thus, if a given individual first detected an audiometer tone at 15 decibels for 500 Hz, his hearing threshold level for that frequency would be 15 dB. If the same individual first detected the tone at 25 decibels for 1500 Hz his hearing threshold level for that frequency would be 25 dB. The decibel scale is a logarithmic scale in which 0 dB approximates the threshold of hearing in the middle frequencies for young adults.³

A threshold shift is a change in hearing sensitivity. Such changes may be temporary, temporary threshold shift (TTS) or permanent, permanent threshold shift (PTS). A loud noise may cause a temporary worsening in hearing sensitivity (TTS) that may persist for 14 hours or longer. Determination of a permanent loss of hearing sensitivity (PTS) thus requires testing on separate dates. Not all temporary or permanent threshold shifts result from noise exposure. When a PTS can be attributed to noise exposure it is referred to as a noise induced permanent threshold shift (NIPTS). A hearing loss is the amount of impairment, in decibels, measured as a set of hearing threshold levels at specified frequencies.

An audiometer is an instrument for measuring individual hearing acuity or ability. It produces a chart, graph or table (audiogram) showing an individual's hearing threshold levels (HTL), the ability to hear, as a function of frequency (Hz). An audiometer is calibrated according to certain uniform standards. ANSI (American National Standards Institute), formerly known as ASA, is a voluntary membership organization that develops consensus standards nationally for a wide variety of devices and procedures. ISO is the international standards organization that performs a similar function.

Hearing Loss and Workers' Compensation

Litigation seeking workers compensation coverage for gradual hearing loss as an occupational disease increased in the late 1940's. Some states initially refused to recognize the compensability of hearing loss due to protracted noise exposure. States that did recognize the theory of compensability struggled with how to treat hearing loss as a scheduled loss under workers' compensation statutes as compensable when no actual loss of earnings could be shown.⁴ Missouri first fell into the camp denying compensation under the then existing laws. Marie v. Standard Steel Works, 311 S.W.2d 368, 371 (Mo.App. 1958). While the case was pending before the Supreme Court, an Advisory Committee to the General Assembly considered legislation. The Supreme Court eventually reversed Marie, 319 S.W.2d 871 (Mo. banc 1959), holding that hearing loss was compensable as an occupational disease generally under Missouri's existing workers compensation statutes. There was no issue in Marie of how the Industrial Commission, without specific statutory guidance, evaluated and determined that Mr. Marie's hearing loss was work related or how the Commission determined his disability rating. Despite the reversal by the Supreme Court, the General Assembly went forward based on the Committee's recommendations and enacted legislation specifically recognizing work induced hearing as compensable and setting forth a detailed method for determining the various issues presented by such claims. Larson, supra note 4, at § 52.05[5]. These enactments are now numbered as §§ 287.067 and 287.197.

The Missouri Hearing Loss Statutes

The Missouri Act, once considered the most advanced statute on the subject, contains the following features: (1) a six-month waiting period after separation from the noisy work before evaluation of a loss to determine whether the degree of permanent hearing loss is permanent; (2) a determination that hearing loss be limited to the frequencies of 500, 1000 and 2000 cycles per second;⁵ (3) the percent of hearing loss should be calculated as the average, in decibels, of the thresholds of hearing for the three frequencies; (4) if the hearing losses average less than 15 decibels in the three frequencies the hearing loss will not constitute a compensable hearing disability and if the losses average 82 decibels or more then the compensable hearing loss is deemed total or 100 percent; (5) deducting one-half decibel from the total average decibel loss for each year of the employee's age over forty at the time of last exposure in recognition that age itself is a contributing factor to hearing loss; (6) a method of computing binaural percentage of loss based on the individual hearing losses in each ear to arrive at a final binaural hearing impairment.

The relevant portions of the Missouri occupational hearing loss law for purposes of the arguments here are § 287.197.2 and § 287.197.4:

The percent of hearing loss ... shall be calculated as the average, in decibels, of the thresholds 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.... (§ 287.197.2)

In measuring hearing impairment, the lowest measured losses in each of the three frequencies shall be added together and divided by three to determine the average decibel loss. (§ 287.197.4) (emphasis added).

Pursuant to the authority of § 287.650, the Industrial Commission in 1959 issued an administrative rule, 8 CSR 50 5.060. Although subsequently amended in 1967, certain important provisions remain unchanged. Subsection (11) of the rule expands upon the statutory directive to use recognized audiometric instruments:

The reference zero levels of the audiometer used to measure hearing levels must be explicitly identified either as ASA-1951 ... or as ISO....

The specification of what standards for audiometers would apply was necessary for more than identification of a recognized authority. Section 287.197.2 specified that losses of 15 decibels or less were not compensable and losses of 82 decibels or more were considered total losses. But how were 15 and 82 to be measured? That answer was in the ASA-1951 and ISO standards which each establish reference zero levels for audiometers. Subsection (15) of the administrative rule then provides:

For every decibel that the corrected⁶ average exceeds fifteen (15) decibels based on the ASA-1951 reference levels or twenty-six (26) decibels on the ISO reference levels, an allowance of one and one-half percent (1½%) shall be made up to the maximum of one hundred percent (100%) which is reached at eighty-two (82) decibels on the ASA-1951...