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RENDERED: MAY 31, 2013; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals
NO. 2012-CA-001433-WC PAULA ROOP APPELLANT

v.

PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-11-01315

AK STEEL CORPORATION; HON. RICHARD M. JOINER, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD

APPELLEES

OPINION AFFIRMING ** ** ** ** ** BEFORE: ACREE, CHIEF JUDGE; LAMBERT AND MOORE, JUDGES. ACREE, CHIEF JUDGE: An Administrative Law Judge found that Paula Roop has a 5% impairment rating as a result of work-related hearing loss. In making that finding, the ALJ rejected the opinion of the university evaluator that Roop has a 14% impairment rating. Roop appealed the ALJ's opinion and award to the

Workers' Compensation Board, and the Board affirmed. Roop now petitions for review of the Board's opinion arguing that the ALJ's rejection of the university evaluator's opinion was erroneous. Roop also argues she was entitled to a finding in her favor under the presumption of work-relatedness provided for in Kentucky Revised Statute (KRS) 342.7305(4). Having reviewed the record and the arguments of the parties, we affirm. FACTS The facts are not in dispute. Roop worked for AK Steel Corporation (AK Steel) for approximately 23 years, last working there in October 2009. During those 23 years, Roop performed various jobs, all of which involved some exposure to industrial noise. Roop was not exposed to any significant noise outside of her employment with AK Steel and has no history of ear infections, trauma, or surgery. However, Roop does have a family history of hearing loss her grandmother wore hearing aids, and her father has some hearing loss but does not wear hearing aids. In October 2011, Roop filed a Form 103 - Application for Resolution of Hearing Loss Claim. In support of her claim, she filed a report from Dr. Robert Manning. Dr. Manning noted that Roop had a history of "a slowly progressive sensorineural deficit bilaterally," and his testing revealed a "moderate nerve impairment hearing loss . . . bilaterally." Based on Roop's history and records from AK Steel, Dr. Manning stated that: "[I]t is apparent that Mrs. Roop has deteriorating nerve impairment hearing loss which at least can be attributed to loud -2-

noise exposure." As a result of that hearing loss, Dr. Manning assigned Roop a 16% impairment rating. Pursuant to KRS 342.315 and 803 Kentucky Administrative Regulation 25:010 Section 11, the commissioner of the Department of Workers' Claims referred Roop to Dr. Raleigh O. Jones at the University of Kentucky for an evaluation. In his report and deposition, Dr. Jones noted that Roop had been exposed to loud noise in her employment with AK Steel frequently but not regularly. He also noted that Roop's grandmother had significant hearing loss that required the use of hearing aids; however, Roop did not tell Dr. Jones about her father's hearing loss. Dr. Jones's testing confirmed that Roop has both high- and lowfrequency hearing loss, and he assigned her a 14% impairment rating. However, Dr. Jones noted that Roop's test results did not fit the "classic pattern" for noiseinduced hearing loss. According to Dr. Jones, noise-induced hearing loss typically results in significantly greater loss in the higher frequencies than in the lower frequencies, but Roop's test results showed just slightly greater high frequency hearing loss. Dr. Jones also noted that Roop's case was not typical because she "is younger than most to develop a sensorineural hearing loss from noise exposure." Because Roop's case was not typical, Dr. Jones considered non-occupational causes for Roop's hearing loss, but he could not find any. Therefore, he concluded that Roop "did most likely have a noise-induced hearing loss."

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AK Steel filed the report of Dr. Joseph B. Touma. Dr. Touma noted that Roop had a lengthy history of progressive bilateral hearing loss, but he reported no other history. After performing audiometric testing, Dr. Touma made a diagnosis of "moderate mixed deafness sensorineural hearing loss in both ears." Dr. Touma indicated that Roop's hearing loss is not compatible with hearing loss caused by hazardous noise exposure, and he stated that her low frequency hearing loss is not work-related. However, Dr. Touma stated that Roop's high frequency hearing loss is work-related and he assigned her a 5% impairment rating for that hearing loss. The ALJ reviewed the evidence, recited the law with regard to university evaluations, and found as follows: In this case, I reject the opinion of the university evaluator and instead find that the report of Dr. Touma is a more accurate assessment of the impairment that is attributable to noise exposure in the workplace. I do so for several reasons. First, Dr. Jones did not have a full family history from the plaintiff. Second, the shape of the curve produced by the audiogram is one that is not generally consistent with noise induced hearing loss. Dr. Jones acknowledged that those two things were important in assessing the cause of a hearing loss. In the absence of another explanation, Dr. Jones opted to attribute the hearing loss to the employment. He appeared to do so reluctantly by being unable to identify other causes. In his deposition Dr. Jones expressed concern about attributing the hearing loss to noise. The pattern of hearing loss was not typical for noise induced hearing loss. Also, Ms. Roop is younger than most to develop a sensorineural hearing loss from noise exposure. On the other hand Dr. Touma stated quite clearly that the low frequency hearing loss has nothing to do with noise exposure. This warrants adjusting the results of the test -4-

which reduces the impairment. I accept the opinion of Dr. Touma and I find that the work-related portion of Ms. Roop's hearing loss is 5%. Roop filed a petition for reconsideration, which the ALJ summarily denied. Roop then appealed to the Board. The Board affirmed, finding that the ALJ had adequately explained his reasons for rejecting the opinion of the university evaluator. It is from the Board's opinion that Roop petitions for review. STANDARD OF REVIEW The ALJ, as fact finder, has the sole authority to judge the weight, credibility, substance, and inferences to be drawn from the evidence. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). Giving due deference to the ALJ as fact finder, we will reverse his findings only if they are "so unreasonable under the evidence" as to be "erroneous as a matter of law." KRS 342.285; Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000). In other words, if the party with the burden of proof was unsuccessful before the ALJ, she must establish on appeal that the favorable evidence was so overwhelming as to compel a finding in her favor. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986). ANALYSIS We begin our analysis by noting that the ALJ is generally free to choose to believe or disbelieve parts of the evidence from the total proof, no matter which party offered it. Brockway v. Rockwell International, 907 S.W.2d 166, 169 (Ky. App. 1995). However, the ALJ's freedom to choose what evidence to believe is -5-

somewhat constricted in cases involving a university evaluator. Pursuant to KRS 342.315(2): [T]he clinical findings and opinions of the designated [university] evaluator shall be afforded presumptive weight by administrative law judges and the burden to overcome such findings and opinions shall fall on the opponent of that evidence. When administrative law judges reject the clinical findings and opinions of the designated evaluator, they shall specifically state in the order the reasons for rejecting that evidence. The ALJ rejected Dr. Jones's opinion regarding the extent of Roop's workrelated impairment rating. Roop argues on appeal that the reasons given by the ALJ for rejecting Dr. Jones's opinion are not supported by the evidence. We disagree. The ALJ chose not to adopt Dr. Jones's opinion regarding the extent of Roop's work-related impairment rating because: (1) Dr. Jones did not have Roop's complete family history; (2) the audiogram findings and Roop's pattern of hearing loss were not consistent with noise-induced hearing loss; (3) Dr. Jones attributed Roop's hearing loss to noise exposure because he could not find any other explanation; and (4) Roop is young to have developed noise-induced hearing loss. The reasons given by the ALJ for rejecting Dr. Jones's opinion regarding the extent of work-related impairment are not only in evidence, but they also come from Dr. Jones's report and testimony. Therefore, Roop's argument that there is no evidence to support the ALJ's reasoning is not persuasive.

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We next address Roop's argument that AK Steel failed to overcome the presumption of work-relatedness provided for in KRS 342.7305(4). KRS 342.7305(4) provides that: When audiograms and other testing reveal a pattern of hearing loss compatible with that caused by hazardous noise exposure and the employee demonstrates repetitive exposure to hazardous noise in the workplace, there shall be a rebuttable presumption that the hearing impairment is an injury covered by this chapter, and the employer with whom the employee was last injuriously exposed to hazardous noise shall be exclusively liable for benefits. Roop argues that she was entitled to an award based on Dr. Jones's 14% impairment rating because he testified that noise exposure could cause the testing pattern he found. That argument is not persuasive for two reasons. First, to avail herself of the presumption in KRS 342.7305(4), Roop was required to present proof that her test results were "compatible with that caused by hazardous noise exposure," not simply that the test results were possibly the result of hazardous noise exposure. She did not meet that threshold of proof. Dr. Jones did testify that Roop's test results could be reflective of noiseinduced hearing loss; however, he also testified that the results were "not typical" and that they did not fit the "classic pattern." Dr. Touma stated that Roop's hearing loss pattern was not compatible with that caused by hazardous noise exposure, and Dr. Manning did not address the issue. Therefore, there is no evidence of record that Roop's hearing loss pattern is compatible with that caused by hazardous noise exposure. Absent that evidence, Roop is not entitled to the presumption of work-

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relatedness. Even if Roop met the proof threshold, there is sufficient evidence to rebut the presumption. CONCLUSION Having reviewed the record and the arguments of the parties, we discern no error in the ALJ's opinion or in the Board's affirmation of that opinion. Therefore, we affirm. ALL CONCUR.

BRIEF FOR APPELLANT: Leonard Stayton Inez, Kentucky

BRIEF FOR APPELLEE: Carl D. Edwards, Jr. Christina D. Hajjar Ashland, Kentucky

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