Former Harley-Davidson worker’s hearing loss ruled work-related

A Wisconsin appeals court upheld a labor review commission’s ruling that a former employee of Harley-Davidson Motor Co. Group L.L.C. and Transportation Insurance Co. suffered an 84.67% hearing loss as a result of his employment at Harley-Davidson.

Robert Schulfer worked in the power train assembly division of Harley-Davidson from May 2000 until February 2011, according to court documents in Harley-Davidson Motor Co. Group L.L.C. v. the Labor and Industry Review Commission. Following his retirement, Mr. Schulfer underwent multiple hearing tests, known as pure tone conduction audiometry tests, including a test that indicated he had a near 100% hearing loss in both ears.

After the test, Mr. Schulfer purchased hearing aids and submitted the bill to Harley-Davidson, according to court documents. Harley-Davidson’s claims services provider, Gallagher Bassett Services Inc., did not reimburse Mr. Schulfer for the hearing aids and requested that Mr. Schulfer undergo a medical examination by Dr. Michael Nordstrom, who concluded that Mr. Schulfer had hearing loss, but could not determine the severity because of “the inaccuracy of the (pure tone) test results.” Dr. Nordstrom was unable to determine whether Mr. Schulfer’s employment with Harley-Davidson caused the hearing loss and suggested that Mr. Schulfer may have been faking his hearing loss or exaggerating the pure tone test results.

On May 24, 2012, Mr. Schulfer filed an occupational hearing loss claim with the Wisconsin Department of Workforce Development and submitted two reports from Dr. Matthew Ubell, one of which disagreed with Dr. Nordstrom’s report and concluded that Mr. Schulfer incurred hearing loss as a result of his employment with Harley-Davidson, according to court documents. The administrative law judge for the department found Dr. Ubell’s report credible and determined that Mr. Schulfer sustained work-related binaural hearing loss, resulting in 100% permanent partial disability. The law judge awarded Mr. Schulfer compensation, attorney fees, costs and treatment expenses.

Harley-Davidson appealed the decision to the review commission, which remanded it to the department for an independent medical exam that was conducted by Dr. Steven Millen. He concluded that Mr. Schulfer had significant hearing loss due to noise exposure in the work environment. But because of inconsistencies in Mr. Schulfer’s testing, Dr. Millen used the results of the speech reception threshold test to calculate the percentage of compensable hearing impairment, which led him to the conclusion that Mr. Schulfer had 32% hearing loss in his right ear and 40% percent hearing loss in his left ear for a binaural loss of 33.3%. However, his calculation method was contrary to the state’s administrative code, which requires the calculation to be based on pure tone testing.

On Sept. 30, 2016, the review commission issued a decision affirming in part and reversing in part the law judge’s decision, concluding that Mr. Schulfer sustained work-related binaural hearing loss, but finding the loss to be an 84.67% partial permanent disability. In reaching its conclusion, the review commission determined Dr. Millen’s pure tone test to be the most reliable of the medical reports, even though he did not calculate Mr. Schulfer’s hearing loss based on the pure tone test results because it found Dr. Ubell’s explanation as to the reliability of pure tone tests to be credible.

Harley-Davidson appealed the review commission’s determination to a circuit court, arguing that credible and substantial evidence did not support its findings because the agency relied on Dr. Millen’s pure tone test, which Dr. Millen himself found unreliable. But the circuit court affirmed the review commission’s determination.

In its appeal to the Wisconsin appellate court, Harley-Davidson argued that the review commission’s decision was not supported by credible and substantial evidence because none of the medical opinion evidence supported its determination and none of the medical experts opined that Mr. Schulfer sustained an 84.67% binaural hearing loss. “Harley-Davidson’s appellate arguments require us to reweigh the evidence before LIRC, which we cannot do,” the Court of Appeals of Wisconsin, District I based in Milwaukee said in a ruling released on Tuesday.

The appellate court concluded that the review commission’s findings were supported by substantial and credible evidence in affirming its decision.

“Based on both Dr. Millen’s and Dr. Ubell’s reports, LIRC determined that Schulfer was not faking his hearing loss; thus, ruling out Dr. Nordstrom’s conclusions,” the appeals court said. “LIRC also found that the hearing loss was work-related, relying on Dr. Millen and Dr. Ubell’s reports, as well as finding Schulfer’s testimony before the ALJ to be credible.”

A company spokesperson could not be immediately reached for comment.