Acme Steel v. Workers' Compensation Appeals Board

Acme Steel, insured by Sentry Claims Service and Zurich North America (Acme), petitions for a writ of review (see Lab. Code, §§ 5950, 5952; Cal. Rules of Court, rule 8.495), contending the Workers’ Compensation Appeals Board (WCAB) erred by awarding respondent Michael Borman 100 percent permanent disability without apportionment for prior hearing loss. We will grant the petition.

Background

Michael Borman sustained continuous trauma injury to his ears (hearing loss), bilateral upper extremities, neck and head during the year prior to his last day at work for Acme as a steelworker on October 16, 2003. Borman was examined by three different agreed medical examiners (AME), namely, Dr. John Devor (general orthopedics); Dr. Robert Ansel (neurology); and Dr. David Schindler (hearing loss). In his July 2004 report, AME Dr. Schindler apportioned hearing loss based on both nonindustrial, degenerative causes and prior injury, opining that Borman’s 100 percent “binaural neurosensory hearing loss” was 60 percent due to “occupational factors, specifically noise[-]induced hearing loss. Approximately 40 percent of Mr. Borman’s hearing loss is the result of non-occupational factors,…