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Oregon Judicial Department - Publications

FILED: November 24, 1999 IN THE COURT OF APPEALS OF THE STATE OF OREGON In the Matter of the Compensation of John W. Wantowski, Claimant. JOHN W. WANTOWSKI, Petitioner, v. CROWN CORK & SEAL, TRAVELERS CASUALTY & SURETY CO., CIGNA INSURANCE CO., CONTINENTAL CAN CO., SIMS, INC., and AMERICAN MOTORIST INS. CO., Respondents. (97-10451, 97-05551, 97-08102, 97-06580; CA A103971) Judicial Review from Workers' Compensation Board. Argued and submitted June 14, 1999. Robert Pardington argued the cause for petitioner. On the brief were Nicholas M. Sencer and Pozzi Wilson Atchison, LLP. Jerald P. Keene argued the cause and filed the brief for respondents Crown Cork & Seal and Travelers Casualty & Surety Co. Vera Langer argued the cause for respondents Crown Cork & Seal and CIGNA Ins. Co. With her on the brief was Scheminske, Lyons & Bussman LLP. Thaddeus J. Hettle argued the cause and filed the brief for respondents Continental Can Co. and SIMS, Inc. Richard D. Barber argued the cause for respondents Continental Can Co. and American Motorist Ins. Co. With him on the brief was Sheridan, Bronstein & Levine, LLP. Before Landau, Presiding Judge, and Linder and Brewer, Judges. LANDAU, P. J. Affirmed. LANDAU, P. J. Claimant, a 64-year-old metal worker, seeks review of an order of the Workers' Compensation Board (Board) holding that his bilateral hearing loss is not compensable. We affirm. We take the facts from the Board's unchallenged findings. Since 1964, claimant has worked for employer or its predecessor as a scroll shear operator. A scroll shear is a machine that cuts sheet metal and places the metal into a press to make cans and other metal objects. The work environment is loud.

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Oregon Judicial Department - Publications

Beginning in 1969, employer required all employees exposed to noise to wear ear protection. Claimant wore ear protection. In the early 1980s, however, he noticed that he had hearing loss. He first sought medical attention for hearing loss in 1997. At that time, he saw his family physician, who recommended a hearing aid. Claimant filed an occupational disease claim for bilateral hearing loss. Dr. Hodgson, a consulting physician for one of employer's insurers, examined claimant. Hodgson concluded that age, chronic occupational noise, and cochlear Meniere's disease in the left ear all contributed to claimant's hearing loss, but that the major contributing cause was age-related hearing loss, or "presbycusis." Employer, through the various insurers who provided workers' compensation insurance coverage over the years of claimant's employment, denied the claim. The Board upheld the denials. The Board found persuasive Hodgson's opinion that the major contributing cause of claimant's hearing loss was presbycusis. It rejected claimant's contention that he is required only to prove the major contributing cause of his hearing loss unrelated to age. On review, claimant argues that the Board erred in taking into account his age-related hearing loss. In the alternative, he contends that taking into account his age-related hearing loss conflicts with the Oregon Constitution, Article I, section 10; the Americans with Disabilities Act, 42 USC

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