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Schorpp-Replogle v. New Jersey Manufacturers Insurance Co.

July 30, 2007

CHRISTINE L. SCHORPP-REPLOGLE, PETITIONER-RESPONDENT,
v.
NEW JERSEY MANUFACTURERS INSURANCE COMPANY, RESPONDENT-APPELLANT.



On appeal from the New Jersey Department of Labor, Division of Workers' Compensation.

The opinion of the court was delivered by: Sabatino, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued January 31, 2007

Before Judges Stern, Collester and Sabatino.

This appeal raises the question of whether tinnitus, often described as "ringing in the ears," may be compensable under our State's workers' compensation laws, N.J.S.A. 34:15-1 to -128, in the absence of a compensable hearing loss. We hold that tinnitus qualifies as a compensable disability under N.J.S.A. 34:15-36, provided that the condition is due in a material degree to exposure to harmful noise at the employee's workplace, materially impairs his or her working ability or is otherwise serious in extent, and is corroborated by objective medical testing despite the mainly-subjective nature of the affliction. Tinnitus meeting those requirements is compensable, even if the employee does not also have a sensorineural loss of hearing below the decibel levels specified as disabling by the Occupational Hearing Loss Act ("OHLA"), N.J.S.A. 34:15-35.10 to -35.22, contained within our workers' compensation laws.

Because petitioner's bilateral tinnitus in this case and the supporting testimony of her medical expert satisfied these standards, we affirm the $5,100 in partial total disability payments, plus fees and costs, that the Division of Compensation awarded to her after a five-day trial. We also reject respondent's separate contention that the judge of compensation was biased and deprived respondent of a fair trial.

I.

The underlying facts involve construction noise at the Parsippany office building of respondent, New Jersey Manufacturers Insurance Company ("NJM"),*fn1 where petitioner Christine Schorpp*fn2 worked for approximately six years. We summarize the facts, consistent with the findings of the judge of compensation, most pertinent to the issues on appeal.

Petitioner began working at NJM's offices in Parsippany in or about the fall of 1996 as a customer service representative. Her job entailed speaking with customers on the telephone. She worked for NJM through October 2003. As stipulated by counsel, at the relevant time she earned wages of $770 per week.

At the outset of petitioner's employment, she was given a full medical examination, including a hearing test. At the time, petitioner had no known health problems and was twenty-seven years old. The record contains no indication that this physical examination revealed any hearing difficulties or other medical issues.

After completing her new employee training with NJM, petitioner was assigned a desk in the customer service area of the Parsippany office. She was never moved to any other work station at that office.

According to petitioner, who the judge specifically described in her decision as "a credible witness," construction at the Parsippany office began shortly after she started working there. Petitioner estimated that the construction continued, intermittently, for a period of thirteen to eighteen months. Initially, the construction involved workers drilling holes into cement columns for bathroom fixtures. Cables and water lines were also drilled into the ceiling of the floor directly below petitioner's desk, and anchor bolts were drilled into columns on the lower building level near her desk. Petitioner testified that the drilling, which often lasted throughout the work day, was loud enough to be heard outside the building. The workers doing the drilling were wearing hearing protection.

During the course of the loud drilling, petitioner could feel her desk vibrating and had difficulty hearing customers on the phone. She especially had trouble conversing with female callers. She had problems distinguishing between the letters "C" and "Z" and accurately hearing "VIN" (vehicle identification numbers) spoken on the phone. Petitioner stated that she had never had such hearing problems when she previously worked at a financial services company before joining NJM.

Petitioner complained about the drilling noise to her then-supervisor, Janet Gruber. She also complained to NJM's facilities manager for the building, Gary Meisch. She further recalled complaining to NJM's in-house safety committee*fn3 at one of its periodic meetings.

Petitioner began to notice a ringing in her ears after the initial drilling. The ringing prompted her to attend NJM's company health fair in May 1999. At the health fair she had her ears tested and was reportedly informed that she had a high frequency hearing loss. At that point, petitioner consulted with three ear, nose, and throat ("ENT") specialists, but those physicians apparently were unable to help her with the ringing problems.*fn4

Subsequently, NJM decided to add a sales department at the Parsippany office by converting a space that had been a storage area filled with disassembled metal cubicles. In the course of the associated construction, the cubicles were moved out, a rug was installed, there was some drilling for electrical outlets, and a metal wall was installed between the new sales department and where petitioner sat in the customer service area. According to her testimony, petitioner's desk was situated about five feet away from this construction. Petitioner again complained about the noise caused by these activities to both her supervisor and the safety committee.

More construction at the Parsippany office commenced in 2002. The work again involved drilling into the ceiling of the room below petitioner's desk, drilling into the concrete pillars near petitioner's desk, as well as some additional bathroom renovations. The workmen used masonry bits to drill into concrete reinforced by steel rebars, which were located in pillars on the floor below petitioner's desk. The insertion of such a metal bit into the steel rebar created a screeching sound. Petitioner complained about these noises in a series of e-mails to her supervisor and Meisch between March 13 and June 3, 2002.

In the spring of 2002, petitioner returned to the NJM health fair. She failed the hearing test. After this occurred, petitioner wrote directly to the President of NJM, Anthony Dickson, and informed him of her hearing loss and the noise. At that point the drilling stopped, apparently because of Dickson's intervention.

Not long thereafter, petitioner transferred to NJM's West Trenton office. She continued working there in the same position until February 2003, when she left NJM, allegedly because of ongoing construction at that office as well. She resumed working a month later for a different employer in Albany, New York.

As described in her testimony, petitioner's persisting difficulties, allegedly induced by the construction noise at NJM, included a "constant ringing in [her] ears." The ringing is most pronounced, and annoying, when there is surrounding silence. Consequently, petitioner started keeping a ticking clock nearby to mask the ringing sounds. The tinnitus interfered with petitioner's ability to work. She elaborated:

I can't hear female speakers. I hear an echo on the phone line. I can't hear the customers when they say C's and Z's, and they get frustrated with me.

Petitioner also presented expert testimony at trial from a hearing specialist, Dr. Arthur J. Matthews, D.O. Dr. Matthews is a board-certified otolaryngologist (ENT specialist), who practiced in New Jersey for thirty-two years.*fn5 Dr. Matthews examined petitioner on April 2, 2003, about ten months after petitioner's hearing had been tested in June 2002 by Robert Woods, M.D.

After Dr. Matthews took petitioner's medical history, his staff performed on her a hearing test known as an audiogram. The audiogram results showed that at sound frequencies between 500 to 1,000 hertz (Hz), which are the frequencies associated with regular speech, petitioner had normal hearing. However, at frequencies above 2,000 Hz, petitioner demonstrated a hearing loss, although not sufficient to exceed what Dr. Matthews recognized as the compensable level for purposes of workers' compensation. The audiogram was interpreted by Dr. Matthews as demonstrating a "high-frequency sensory neural or nerve hearing loss, both ears hearing about approximately the same." Dr. Matthews' report, which was admitted into evidence in addition to his testimony, noted that those audiogram results were similar to the results found by Dr. Woods in an earlier audiogram in June 2002.

In addition to the audiogram performed by his staff, Dr. Matthews administered a tinnitus "tone-matching test"*fn6 to petitioner. The doctor performed that test because petitioner had complained to him about experiencing tinnitus in both ears. The tone-matching test revealed that the ringing in petitioner's ears was most closely replicated at a frequency of 4,000 Hz. Dr. Matthews found this match significant, because her audiogram had showed that her hearing loss also was most pronounced in the 4,000 Hz range. According to Dr. Matthews, these results suggested that petitioner's tinnitus was related to, or due to, her hearing loss. The 4,000 cycle, in Dr. Matthews' experience, happens to be "the cycle that's mostly or usually affected by noise exposure."

Dr. Matthews diagnosed petitioner with tinnitus, as well as a "binaural symmetrical sloping high frequency sensorineural hearing loss." He further opined that, within a reasonable degree of medical probability, petitioner's hearing loss and tinnitus were related to her exposure to noise at her workplace. He based that causal linkage on the results of his examination, as well as petitioner's history of having "absolutely no problem with hearing or tinnitus prior to the onset of that [construction] work that she described." While Dr. Matthews noted "a strong probability of noise-induced hearing loss," he recognized that the amount of that loss was not enough to qualify as ...


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