Adams v. Workmen's Compensation Appeals Board

Opinion

GARGANO, J.

Petitioner seeks a review of the opinion and order of the Workmen’s Compensation Appeals Board (hereafter referred to as “the board”) denying reconsideration of the referee’s findings and award rejecting petitioner’s contention that he sustained a noise-induced injury in the course of his employment and disallowing his claim for workmen’s compensation benefits, The gravamen of petitioner’s argument is that both the referee and the board ignored the salutary principle that an employee is entitled to be compensated for any loss of earning power resulting from a prophylactic restriction brought about by an injury sustained in the course of employment.

(State Comp. Ins. Fund

v.

Industrial Acc. Com.,

59 Cal.2d 45, 53 [27 Cal.Rptr. 702, 377 P.2d 902];

Luchini

v.

Workman's Comp. App. Bd.,

7 Cal.App.3d 141, 144 [86 Cal.Rptr. 453].)

Petitioner was employed as a miner and tunnel worker since early 1953, and it is undisputed that his work exposed him to “significantly high noise levels.” It is also undisputed that an ISO-calibrated audiogram revealed that petitioner registered a hearing loss. In addition, in the only medical report filed with the referee, Dr. Charles P. Lebo stated that petitioner had incurred measurable ear trauma resulting in “early noise-induced inner ear damage” and a subclinical high-frequency hearing loss; he was of the opinion that the condition was permanent and untreatable and that it was medically advisable that petitioner be retrained for work which he could accomplish under quiet environmental conditions. Because Dr. Lebo also stated that petitioner had not sustained a ratable injury, and because his report indicated that the injury occurred despite the use of ear plugs, in

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the report on the petition for reconsideration, the referee found that petitioner’s ear condition was due to an “innate sensitivity;” he opined that the “employee could only be rated upon a description to the effect that he should not now and should not in the past have been working in tunnels.”