CP# 02-37834 Santos v. Tyco Plastics
DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT
DIVISION OF WORKERS’ COMPENSATION
ELIZABETH, UNION COUNTY DISTRICT
BEFORE: HONORABLE PETER F. WOMACK
Supervising Judge of Compensation
GARCES & GRABLER, ESQS.
By: WILLIAM GRABLER, ESQ.
Attorney for the Petitioner
WORTHINGTON & WORTHINGTON, ESQS.
By: FRANCIS WORTHINGTON, ESQ.
Attorney for the Respondent
In the matter of Ricardo Santos versus Tyco Plastics, Claim Petition 02-037834, it was stipulated petitioner was in the employ of the respondent from April 11, 1991 to December 19, 2001 and petitioner’s wages were $485.68 per week. The issue before the court was whether the petitioner had any pulmonary or otological disability.
Mr. Santos was a machine operator for Tyco Plastics. In his work area there were 21 machines and 16 grinders. The grinders would grind plastic into powder. He stated there was a lot of dust apparently from the plastic. They would have to clear the area with an air hose which would push dust all over the place. There would be an awful lot of fumes from the machine. They wore ear plugs at work but they did not always work. There was a lot of noise from the machines and he described the noise as being as similar to standing next to an airplane. In order to talk to a co-worker, one would have to stand very close and yell at him. Petitioner states that he has permanent noise in his ears and that it is getting worse. It bothers him most of the time to constantly hear that noise. He also states that he brings up a lot of phlegm and he gets very tired easily especially walking up stairs. He feels he gets a lot of complaints about his problem with hearing. He left Tyco and he is now working at C.K. Plastics which is a similar type of employment. At C.K. Plastics he makes plastic molds. He felt there was no real noise from the machines. He claims it was a lot quieter in C.K. Plastics than in Tyco’s. He received no treatment for his tinnitus but he is not aware of any treatment that can be given for tinnitus.
Placed into evidence was University Hospital record wherein petitioner made his initial visit to an ears, nose and throat clinic. It noted that petitioner was having difficulty breathing through his nose for the past four years which was worse in the winter. He also had noise in his left ear for the past one and a half years. Dr. Hermele examined as a pulmonary expert on petitioner’s behalf and his report was placed into evidence. On the physical examination, Dr. Hermele did not find any wheezes, rales or rhonchi. The only thing he mentioned was that there was poor chest-wall movement on maximum expiratory effort. This is essentially a normal physical examination. On a chest x-ray, it was Dr. Hermele’s interpretation that there was increased bronchovascular markings in the lower lung fields extending to the periphery. Dr. Hermele felt there is x-ray evidence of lung changes. But on the question of whether there is demonstrable evidence of functional disability, Dr. Hermele took a spirometry. On the FEV 1 which would show obstruction in the larger airways, petitioner was within normal range at 86%. In the smaller airways, petitioner was well within normal. The only abnormality that was found by Dr. Hermele was on the total vital capacity. This area would show if there was any restrictive condition. Since it was lowered, Dr. Hermele found 30% of partial total for a chronic bronchitis and probable restrictive pulmonary disease. Chronic bronchitis was apparently found based on petitioner’s complaints since there was no obstruction found on the pulmonary function testing. In fact, usually when restriction is caused by the stiffening of the lung structures due to heavy obstructive condition, one would expect to find an obstructive condition. The only other restrictive pulmonary occurrence is that when particulate matter enters the lung structures such as asbestos or silica. No such particulates were found or diagnosed in this case. Based on his pulmonary function test, I do not see that Dr. Hermele has found demonstrable objective evidence of functional disability.
Dr. Joel Duberstein examined as a pulmonary expert on behalf of the respondent. Dr. Duberstein also gave a pulmonary function test and petitioner performed better than he did on Dr. Hermele’s test. He reached 98% on the FEV 1. Therefore, Dr. Hermele and Dr. Duberstein agree that petitioner does not have any demonstrable functional evidence of obstructive condition. On the FEF/FVC or restrictive portion Dr. Duberstein found 95% which was well above normal. At the 25/75 level, which would indicate obstruction or small airways disease, Dr. Hermele found 102%. So Dr. Duberstein’s exam showed the petitioner to be well within normal limits. Dr. Hermele found the petitioner to be normal on the obstructive portion of the test and only found an abnormality on restrictive portion. Upon re-taking the test with Dr. Duberstein, petitioner did perform normally on the restrictive portion. In review of the pulmonary function tests it is clear petitioner does not show any demonstrable, objective evidence of any functional disability coming from his lungs. Therefore, I find that petitioner has failed to sustain burden of proof of showing any pulmonary disability.
As far as petitioner’s otological exam is concerned, petitioner was examined by Dr. Gerald West as an otological expert on his own behalf and Dr. S. Thomas Westerman, as an otological expert on behalf of respondent. In testing petitioner’s hearing, both doctors performed otological testing for the hearing and their examinations and test results were placed into evidence as P-2 for Dr. West and R-3 for Dr. Westerman. In review of their otological exams, it is clear that both doctors show that petitioner has what is classically known as an occupational dip. He has lowered sensory hearing at these higher levels with stronger hearing at the higher levels. In other words, from the 500 and 1,000 you can see the line dip down towards the 4,000 to 6,000. You see that in both doctors’ hearing testing and this is the classic case which shows the last part of the dip towards the higher frequency being the occupational dip. This means that petitioner does have some hearing loss related to his employment. With regard to his employment, petitioner did discuss the machines being very loud., They were so loud that one had to shout right next to a co-worker to be heard. Petitioner described the noise as like standing next to an airplane engine. This is extremely loud noise. However, in the Worker’s Compensation Act there is a state mandated formula for deciding what is compensatory hearing loss. In utilizing this formula, neither doctors’ tests do not reach to the level of a compensable neurosensory hearing loss. In fact, Dr. West, petitioner’s own expert indicates that the petitioner’s neurosensory hearing loss is not reflected in the state mandated formula. Dr. Westerman also indicated in utilizing the State of New Jersey’s Workers’ Compensation Act, he would have to find a binaural, sensorineural hearing loss at zero. Therefore, petitioner does not have any hearing loss under the Worker’s Compensation Act.
Petitioner complained of tinnitus in his ears by complaining of a whistling or noise in his ears. This has been annoying to him. This kind of noise can be distracting. Petitioner clearly was irritated that he would be hearing these noises all the time. Dr. West gave the petitioner 15% of partial total due to tinnitus but I note in Dr. West’s examination he never tested for tinnitus. Apparently, Dr. West just took petitioner’s complaints that he had tinnitus.
Dr. Westerman, however, did not just assume petitioner’s complaints. HHHe actually tested for tinnitus. He performed a tinnitus matching test. He noted that petitioner did match tinnitus at the 1,000 each z at 25 db level. After a five minute wait, the test was repeated and the results were verified. So it is clear that petitioner does have tinnitus. Furthermore, during petitioner’s employment in September 11, 1992, petitioner was clearly complaining of tinnitus. The company doctor’s progress note or entry note for this complaint indicated petitioner had noise in the left for the past one and half years. Respondent has taken that to mean that petitioner had tinnitus even before he started working. There is a problem with respondent’s argument in that petitioner only complained about his left ear in 1992 and it is clear from Dr. Westerman’s report that petitioner had bilateral tinnitus at the time he examined. Also, when it claimed he had noise in his ears for one and half years, it was the entire time he was working for the respondent. Respondent felt tinnitus takes time to develop and, therefore, he must have had it before his employment. When giving this progress note petitioner was complaining that he noticed this noise for some time. It does not appear to me he was trying to define this exact amount of time he had this noise. He was basically saying that since he started working for respondent, he started noticing noise in his left ear. With the kind of noise that he described in the workplace, I do not find this unusual. It would not take long before this type of noise could damage eardrums and cause tinnitus. If the noise level is loud as an airplane or that even loud enough that in order to talk to a person right next to you, you would have to yell, then this could be very damaging otologically. Petitioner comes before me with tinnitus in both ears. Clearly this condition had worsened. There is also demonstrable, objective evidence by tests of tinnitus as found by respondent’s own medical expert.
Dr. Westerman indicates that the 1,000 level where he clearly verified the tinnitus was not in a frequency compatible with noise trauma. Dr. Westerman just makes this statement. But nowhere in his report does he explain it. If there was an infection or some accident causing tinnitus, I could understand this stand. However, there were no factors elicited at trial __________ about an infection or accident. There is no testimony by the petitioner nor any other proofs that ________ that anything occurred other than the described noise. Dr. Westerman just makes a statement, without any explanation that the tinnitus is not in a frequency compatible with noise trauma. He does not say what that tinnitus is compatible to. He just sort of seems to say that he found tinnitus, but it is not from noise. I find that very hard to believe. Clearly, with the amount of noise that petitioner had and the worsening of his tinnitus condition from his left ear to both ears, would indicate that noise would be the most obvious reason for his tinnitus. Dr. Westerman did considerable amount of testing of the petitioner after the tinnitus test. Nevertheless, he had no other explanation for the tinnitus.
Dr. Westerman did find demonstrable, objective evidence of the condition of tinnitus and merely states without explanation that it is not compatible with noise trauma. In all his testing, he does not give theory to what else it could be compatible to. Petitioner had complained of tinnitus about one and half years on the job in his left ear and the tinnitus has gotten worse and has become bilateral since then. It is clear to me that the tinnitus is associated with noise trauma. Dr. Westerman only says that this tinnitus is probably related to the dizziness. That makes absolutely no sense to me unless the dizziness has something to do with the ears which could cause the tinnitus. Dr. Westerman has not shown me that the petitioner has dizziness or that it in any way causes the tinnitus. Dr. Westerman went out and found tinnitus on his objective examination and apparently is just trying to argue against it. I think that the tinnitus clearly is related to the noise exposure. I feel that Dr. Westerman provided demonstrable, objective evidence of the tinnitus. Furthermore, petitioner clearly having noise in his ears, indicated that it bothers him. It certainly reduces his lifestyle hearing this noise. He hears noise all the time. It can be distracting and it can be irritating and I feel that there is a disability of 7 ½ % of partial total for the tinnitus which is otological in nature. It equals 45 weeks at $158 or $7,110.
I will allow to Dr. Hermele for his examination and report $300; $150 petitioner and
$150 respondent. Since the petitioner’s attorney has paid $75 to Dr. Hermele, petitioner’s portion $75 will go to Dr. Hermele and $75 will be reimbursed to petitioner’s attorney. I will allow to Dr. West for his examination and report and audiogram $300; $150 petitioner, $150 respondent. Since petitioner’s attorney prepaid $85 to Dr. West, petitioner’s portion $85 will be reimbursed to petitioner’s attorney and $65 will go to Dr. West. I will allow an attorney fee $1,600; $500 petitioner, $900 respondent. I will allow a stenographic fee of $150 payable by the respondent.
Petitioner’s attorney will prepare an Order in conformance with my findings for my signature.
Peter F. Womack
Supervising Judge of Compensation
November 18, 2004