Subsequent Injuries Fund v. Industrial Accident Commission

SCHAUER, J.

Petitioner Subsequent Injuries Fund (hereinafter sometimes termed the fund) seeks annulment of a decision and award of respondent Industrial Accident Commission in favor of respondent employe Charles 0. Allen and against petitioner. We have concluded that the commission was correct in its determination that the employe’s unknown but permanent hearing loss which existed previous to his sub

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sequent industrial injury is a rateable factor of permanent disability for purposes of subsequent injuries compensation, and that the award should be affirmed.

In August 1956, while employed as a structural iron worker, Allen suffered an industrial injury when he fell some 20 to 30 feet and landed on his hands and head. Thereafter he complained of partial deafness as well as other injuries related to the fall. Prior to this injury, and even after an earlier 1955 industrial accident, he had been aware of no deafness.

Allen’s claims for normal compensation benefits following the 1956 injury were settled by approved compromise and release. Thereafter he filed application for the additional benefits from the fund which are here in dispute.

An independent medical specialist in the field of otology, appointed by the commission to examine Allen, reported that Allen then had a 37 per cent loss of hearing in his left ear, a 95 per cent loss of hearing in his right ear, and a 44 per cent binaural loss of hearing; that just prior to the 1956 (the second) injury Allen had a 25 per cent loss of hearing in each ear, largely the result of many years of exposure to a high noise level; that Allen stated he had not noted difficulty in hearing prior to the 1956 accident. The doctor concluded that 12 per cent of the entire deafness in the left ear, 70 per cent of that in the right ear, and the combined 44 per cent binaural loss, were attributable to the 1956 injury.

Following rating proceedings before the commission Allen was given a rating of 85% per cent of total permanent disability of which 79 per cent was attributed to the 1956 industrial injury and 6% per cent to the preexisting loss of hearing and to other preexisting factors not here involved. He was awarded additional benefits from the fund based upon the 6% per cent of total disability,