The Appellate Division affirms a Judge of Compensation’s dismissal of the petitioner’s occupational hearing loss and tinnitus claim based on a finding that both the petitioner and his medical expert lacked credibility.
This Appellate Division decision deals with the Judge of Compensation’s credibility findings in the context of an occupational exposure hearing loss and tinnitus claim. In dismissing the petitioner’s claim, the judge attributed greater weight to the respondent’s medical expert in finding a lack of credible evidence to prove the petitioner suffered hearing loss and tinnitus as a result of excessive noise exposure at his place of employment. The Appellate Division affirmed the judge’s dismissal, finding his decision to be based on substantial credible evidence.
In August of 2015, the petitioner was employed as a fabricator of metal ball bearings for automobiles by the respondent at its manufacturing warehouse. He was surrounded on the warehouse floor by multiple machines that produced various levels of noise throughout the day. Though petitioner was provided with eyeglasses and gloves, he was not given protective hearing equipment. In September of 2015, he presented to the emergency room at St. Joseph’s University Medical Center in Paterson, New Jersey, with complaints of dizziness and nausea upon waking that morning. Following an evaluation, he was prescribed Meclizine, a medication for treatment of motion sickness and vertigo. Following this emergency room visit, he never returned to work with the respondent.
On October 27, 2015, the petitioner sought treatment with Dr. Alfredo Festa, an ENT physician, to whom the petitioner reported complaints of chronic dizziness and ringing in his ears for about one month. Dr. Festa did not diagnose any abnormalities as a result of his evaluation of the petitioner, but prescribed a 30-day regimen of Meclizine to alleviate his dizziness. In his report, Dr. Festa noted that the petitioner’s hearing levels were normal. On November 30, 2015, the petitioner sought treatment with Dr. Daniel Samadi, another ENT physician. At that time, he complained of dizziness that worsened with increased activity, tinnitus in both ears and sensitivity to loud noises. Dr. Samadi diagnosed the petitioner with bilateral tinnitus, bilateral sensorineural hearing loss and disorders of the Eustachian tube.
On September 27, 2017, the petitioner filed a claim with the Division of Workers’ Compensation, alleging bilateral sensorineural hearing loss, bilateral tinnitus and other ENT injuries resulting from occupational exposure to excessive noise while in the employ of the respondent from August 3, 2015, through September 30, 2015. The respondent denied the petitioner’s claim, and a trial ensued.
At trial, the petitioner testified about his exposure to loud noise while in the respondent’s employ, his resulting injuries and their impact on his everyday activities. The medical reports of both of the petitioner’s treating physicians, as well as the expert reports of Dr. Gerald West and Dr. Steven Freifeld, the petitioner’s and respondent’s evaluating ENT physicians, respectively, were submitted into evidence by stipulation.
Dr. West opined in his report that, based upon his review of the medical history and after performing a physical examination, the petitioner was suffering from bilateral disabling tinnitus “secondary to the extreme noise exposure that [he] suffered in 2015.” However, the physical examination and hearing test performed by this physician were within normal limits.
The respondent’s expert, Dr. Freifeld, opined that the petitioner’s hearing was within normal limits and that any vestibular neuronitis or tinnitus the petitioner may have previously experienced was subjective and transient in nature. Rather, this physician diagnosed the petitioner with an unrelated hyperacusis, i.e., an auditory condition of unknown etiology marked by a heightened awareness of sounds, disturbed loudness function and discomfort for sounds that would be acceptable to most normally hearing people. As such, and within a reasonable degree of medical probability, Dr. Freifeld concluded that the petitioner’s symptoms did not result from exposure to noise and were unrelated to his employment. Rather, he attributed the petitioner’s complaints to his unrelated hyperacusis diagnosis.
At the conclusion of trial, the Judge of Compensation noted that the petitioner was incredulous and gave inconsistent testimony. For example, the judge highlighted that the petitioner consistently described the machines in the respondent’s warehouse as “loud,” but admitted on cross-examination that he was able to hear directions and instructions from his supervisor on the floor as long as the supervisor raised his voice. Moreover, the judge emphasized that neither Dr. Festa nor Dr. Samadi “opined as to any causal connection between petitioner’s work environment and his symptoms” of dizziness or loss of hearing. Further, the judge found Dr. West’s report to be “perplexing, inconsistent and troubling” in that, although Dr. West found the petitioner to have suffered from bilateral tinnitus secondary to employment-based noise exposure, “[t]here [was] no data, study or reference of any kind to suggest that this condition was caused by the limited noise exposure” the petitioner experienced while in the employ of the respondent. Accordingly, the judge dismissed the petitioner’s claim for failure to sustain his burden of proof as to causation.
In affirming the Judge of Compensation’s dismissal, the Appellate Division cited to Ramos v. M&F Fashions, Inc., 154 N.J. 583 (1988), as to the scope of its inquiry on appeal. In Ramos, the court held that:
[A] compensation judge is considered to have expertise in weighing the testimony of competing experts and assessing the validity of the claim. The judge is “not bound by the conclusional opinions of any one or more, or all of the medical experts.” We will not reverse a judgment simply because the judge gave more weight to the opinion of one physician over the other.
Considering the proofs as a whole, including the medical expert reports of Dr. West and Dr. Freifeld, and with due regard to the Judge of Compensation’s opportunity to assess the credibility of the petitioner at trial, the Appellate Division found that the Judge of Compensation’s conclusion that the petitioner failed to sustain his burden of proof could have been reasonably reached based on sufficient credible evidence present in the record. The Appellate Division, accordingly, affirmed the Judge of Compensation’s dismissal of the petitioner’s claim.
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