Armco Steel Corp. v. Trafton

Menchine, J., delivered the opinion of the Court. Herbert R. Trafton (Claimant) filed a claim against Armco Steel Corporation (Armco or Employer and Self-Insurer) for workmen’s compensation benefits. The claim asserted entitlement to benefits for disability (hearing loss) caused by occupational disease 1 arising out of and in the course of his employment. The claim was referred to the Medical Board for Occupational Diseases 2 (Medical Board), and a hearing was conducted by that body.

After hearing, the Medical Board made the following decision: “In view of the testimony and medical reports and the sound level survey and considering the length of time this employee was exposed to high noise levels in his employment with the Armco Steel Corporation, it is the opinion of the Medical Board that this claimant does, indeed, have an accoustic trauma as a result of his occupation with the Armco Steel Corp. ⁶⁶⁰ Based on the report of Dr. Gerlach, he is entitled to 45% binaural hearing loss. ISSUES RAISED ARE AS FOLLOWS: 1. Did the employee sustain an accidental personal injury arising out of and in the course of employment. 2. Is the disability of the employee the result of an accidental personal injury arising out of and in the course of employment. 3.

Should claim be determined by Medical Board. 4. Is the alleged occupational deafness a result of an accidental personal injury arising out of and in the course of employment. 5. Such other and further issues as may be raised at time of hearing. MEDICAL BOARD DECISION: 1.

He did not have an accidental injury but he did sustain an occupational disease. 2. See answer to issue #1. 3. Yes. 4. See answer to issue #1. 5.

No other issues raised at the time of this hearing. However, the Medical Board raised the issues of nature and extent. Patient has a 45% binaural hearing loss as a result of an occupational disease in his employment with the Armco Steel Corporation.” Pursuant to the provisions of Article 101, § 29, Employer and Self-Insurer filed a petition for review 3 by the ⁶⁶¹ Workmen’s Compensation Commission (Commission) of the findings and report of the Medical Board. After hearing and review the Commission passed an order reading, in pertinent part, as follows: “... after due consideration, the Commission affirms the decision of the Medical Board and finds that the claimant did sustain an occupational disease arising out of and in the course of his employment on January 2, 1974 and as a result thereof, he sustained a permanent partial disability resulting in 45% binaural hearing loss... .” On appeal to the Superior Court of Baltimore City by the Employer and Self-Insurer, the decision of the Commission was affirmed.

Employer and Self-Insurer now has appealed to this Court, contending: 1. That the finding of the Medical Board and its affirmance by the Commission is not supported by legally sufficient evidence. 2. That the disability rating of occupational deafness was not determined in accordance with law. Sufficiency of Evidence Unlike appeals from the Commission in cases of accidental injury, the Legislature has seen fit narrowly to circumscribe the power of the courts in appeals from the Commission respecting the grant or denial of benefits for occupational disease.

Article 101, § 56 reads in pertinent part as follows: “... in all appeals in which occupational diseases are involved, the findings of fact by the Commission shall be final and not subject to review ⁶⁶² or modification by the court or be submitted to a jury----” Armco’s contention is grounded upon its assertion that there is no medical evidence directly connecting the hearing loss with the employment and no other evidence sufficient to establish the necessary causation. The course to be followed by an appellate court in considering the legal sufficiency of the evidence in occupational disease cases was plainly outlined in Duncan v. McNitt Coal Co., 212 Md. 386 , 129 A. 2d 523 (1957), in the following language: “It is true, as the claimant urges, that members of administrative bodies may not rest their decisions on matters of private knowledge which are not in evidence. See, for example, Hedin v. Board of County Commrs., 209 Md. 224 , 120 A. 2d 663 . We think, however, that this does not preclude the members of the Medical Board from applying their expert knowledge to the medical evidence before them.

Big Savage Refractories Corp. v. Geary, supra. In that case, as in this, x-rays pertinent to the existence of silicosis and an electrocardiogram were involved. Recognition of the Board’s right to use its expert knowledge is implicit, if not, indeed, explicit, in the opinion of this Court in that case. At page 371 of 209 Md., page 217 of 121 A. 2d, Judge Collins said: ‘ * * * The Legislature therefore sought to make certain that the members of the Medical Board were experts on occupational diseases.

Johnstown Coal & Coke Co. v. Dishong, supra, 475. The Medical Board, in addition to its expert findings that the possibility of early silicosis was not to be excluded and that the silicotic findings were not the cause of the appellee’s disability, found that the cardiac disease present was the most likely cause of disability.’ “Though the opinion then went on to say that the Board’s ‘expert findings’ were supported by the ⁶⁶³ report of one of the claimant’s own physicians, we do not think that the Board’s right to apply its expert knowledge to the medical evidence before it was regarded as being dependent upon support for its views from the opinion of any physician whose opinion or findings were submitted to the Board. We find no satisfactory reason for permitting the Medical Board to use its own expert knowledge for the purpose of resolving conflicts of opinion among other experts and at the same time for denying it the right to use its same expert knowledge in testing the sufficiency of the evidence offered by only one side to establish a fact which that side must prove in order to establish its claim. We accordingly hold that the Medical Board may apply its expert knowledge to the medical evidence before it and may base its findings and report to the Commission upon such application of such knowledge, whether or not there is medical opinion evidence in the record before the Board in accordance with or at variance with the Board’s findings.” (Emphasis added.) 212 Md. at 398-99 , 129 A. 2d at 529-30 .

The Evidence in the Subject Case The Claimant testified that he had been employed by Armco for twenty-seven years. He worked as a towmotor operator until March 1974, when he was transferred to do janitorial work. He testified that he had no hearing loss prior to the commencement of his work at Armco and noticed the beginning of a hearing loss fourteen or fifteen years ago. At the time of the hearing before the Medical Board, Claimant could hear nothing without a hearing aid.

He thus described the noise generated in the operation of the towmotor itself: “Q All right, now. Is there anything unusual about the lift type truck that you are operating for these 23 years? ⁶⁶⁴ A A whole lot. Most of the time they got racks up over top to protect you and they don’t keep them tight sometimes, they- can’t hear anything. Q Well, now, what unusual noises, if any, do you hear as a result of operating the lift truck?

A Well, just iron knocking against iron. Iron hitting against iron. Q And, how often, how many hours do you usually work a day? A Eight hours.

Q You usually work five days a week? A That’s right. Sometimes six and seven. Q All right.

And, how often would you hear the iron rattling against other iron? A Well, if I’m driving all day. Q All day? A That’s right.

Q When you hear it while you’re moving or when you’re standing still? A When I move. Then when I stand still, it gives a lot of vibration. Q The vibration keeps on rattling?

A Uh-huh. Q And, during the period of time you were ■operating this Towmotor or lift truck, are you driving it or are you sitting as a passenger? A I’m driving it. Q You drive it.

And, when you actually lift up the item or metals, do you actually sit in the driving seat when you do it? A That’s right. That’s right. Q Well, do you ever get out of the lift, the tow truck, Towmotor?

A Well, I hardly ever get out. Just if it falls off, sometimes I pick it up. ⁶⁶⁵ Q All right. After you lift metal up, do you then drive it to a new destination or location? A That’s right.

Most all them places are noisy there.” In addition to the noise connected with operation of the towmotor itself, Claimant testified that he worked indoors and out “around furnaces where there is a lot of noise, around grinder shields.” He added that a towmotor driver does not work in one place, he goes every place in the plant. “[I] work around grinding shed, hauling in and out of there. That makes a whole lot of noise ... I have worked up the hammer job where they got to hammer. That’s a whole lot of noise . ..

They have a press shop now ... been round the blacksmith’s shop. That keeps noise . .. That’s about the most noise there is .... Work down the wire more.

The people keeps a whole lot of noise.” Claimant testified that he lived in a residential neighborhood and was not subjected to any loud noise other than that to which he was subjected by his employment. Armco’s job description of a towmotor operator under the heading “Surroundings” contained the following comment: “All weather conditions where weather may be severe and exposed to heat for intervals and intense noise for periods.” (Emphasis added.) A routine report of a physical examination of claimant, by a company doctor on May 23, 1961, carried a negative notation after the inquiry “Auditory Acuity Diminished (Spoken Voice).” A similar report of an examination on January 28, 1969, carried an affirmative notation after the identical inquiry. A similar report of an examination on February 9, 1973, carried, inter alia, the following comment under the heading “Summary”: “Severe hearing defect.” A medical report of the Employer and Self-Insurer, dated ⁶⁶⁶ May 2, 1973, headed “Non Occupational” in decipherable part contained the following pertinent data: “History: Sent up by foreman for audiogram testing due to marked loss of hearing. Testing done showed loss of L 40-95 dib loss in all ranges.

R40-65 dib loss in all ranges. Has hearing loss since 1961. In 1970 was seen by otologist who advised removal of adenoids to improve hearing but employee reluctant to do this. Examination: Both ears essentially neg. ...

No infection. Audiogram: Left ear 40-95 dib above normal in all ranges Right 40-65 dib abnormal in all ranges” Other records offered by Armco, in parts pertinent and decipherable, were as follows: “1-24-74 On routine P.E. Employee claims he uses hearing aid at home for past several months. To take another audiogram w/ & w/out aid. 1-25-74 Audiogram done today. Has minimal impairment of hearing.

With ... of hearing ... to left ear. Impment of 5-35 dib only. At Mr. Green’s request made appt. for employee to see Dr. Gerlach (Ear Specialist) on 1-28-74. 1-28-74 To & from Dr. Gerlach’s office via station wagon. Next appt. on 2-4-74 at 1:30 p.m. — was given prescription for ear gtta to instill in right ear Tid.

Phoned Mr. Green as to who would be paying for Dr. Gerlach’s visit as well as ⁶⁶⁷ prescription — He stated that we wanted an evaluation so therefore we would pay the costs, however if