Geaney: Appellate Division Affirms Dismissal of Occupational Tinnitus Declare| Staff Compensation Information

By John H. Geaney

Friday, January 22, 2021 | 46 | 0 | min read

There aren’t many Appeals Department decisions regarding occupational hearing loss and tinnitus, which is why choosing Donzella versus SG Performance Plastics Corp. is of interest.

John H. Geaney

The case concerned an SG Performance employee who was working in their production warehouse in August 2015. He and 30 others worked on several machines. He wore glasses and gloves, but no hearing protection.

A month after starting his job, Donzella went to St. Joseph’s University Medical Center in Paterson and said he was very dizzy. He was given meclizine to treat motion sickness and dizziness. He never returned to SG Performance but got a job with the State of New Jersey Water Commission in 2017.

The petitioner saw Dr. Festa, an ENT doctor who found that the petitioner’s hearing levels were normal. Next he saw another ENT doctor, Dr. Samadi, who diagnosed bilateral tinnitus and sensorineural hearing loss. He later added a diagnosis of a deflected nasal septum.

The petitioner filed an application on 10 November 2015 for dizziness, vertigo and hearing loss. Almost two years later, he changed the CP to claim that he was professionally exposed to excessive noise from August 3, 2015 to September 30, 2015. The petitioner was informed by Dr. Gerald West, another ENT doctor, seen diagnosed with tinnitus due to extreme noise exposure in 2015. West estimated the permanent partial disability of tinnitus at 25% but noted that the petitioner’s hearing was within normal limits.

The interviewee kept Dr. Steven Freifeld, who noted that as of September 2018, the petitioner was still complaining of bilateral hearing loss and sensitivity to noise. However, his dizziness had subsided. Freifeld felt that there was no hearing loss and noted that the symptoms were not work-related.

The experts did not testify, but their reports were introduced as evidence instead of testimony. This procedure is known as a trial. The Compensation Judge found the petitioner’s testimony unreliable on certain points. The judge noted that the petitioner described the machines as loud, but admitted that he could hear instructions and directions from his manager if the manager raised his voice.

In addition, the judge found that neither Festa nor Samadi commented on the cause between work and its symptoms. Finally, the judge said, “There was no data, study, or reference to suggest that this condition was caused by the limited noise exposure.”

In his decision in favor of the respondent, the judge found Freifeld to be the most credible of all ENT doctors in this case. The judge accepted Freifeld’s opinion that the petitioner had vestibular neuronitis, a disease that can occur in anyone at any time. The judge found no evidence to causally link this condition to the work.

The Appeals Division put the judge’s expertise on hold and upheld the dismissal of the case as there was enough evidence to support the decision. It underlines that in any case of occupational hearing loss or tinnitus a record of specific working conditions, such as B. decibel values, along with consideration of medical studies or data linking fairly common conditions such as tinnitus or sensitivity to noise with specific work conditions.

John H. Geaney is an attorney, executive committee member and shareholder in Capehart Scatchard, a defense law firm in New Jersey. This post is published with permission from Geaney’s New Jersey Workers’ Comp Blog.