Matter of Hassan v Ford Motor Co.
2010 NY Slip Op 00048 [69 AD3d 1024]
January 7, 2010
Appellate Division, Third Department
As corrected through Wednesday, March 10, 2010


In the Matter of the Claim of Mana Hassan,Appellant,
v
Ford Motor Company, Respondent. Workers' Compensation Board,Respondent.

[*1]Lipsitz, Green, Scime & Cambria, Buffalo (John A. Collins of counsel), for appellant.

Hamberger & Weiss, Buffalo (Susan R. Duffy of counsel), for Ford Motor Company,respondent.

Peters, J.P. Appeal from a decision of the Workers' Compensation Board, filed August 6,2008, which ruled that claimant had a.625% schedule loss of use for binaural loss of hearing.

Claimant retired in December 2006, after having worked as a laborer in the employer's plantfor over 35 years. In 2007, he applied for workers' compensation benefi

tsclaiming hearing loss due to exposure to high levels of noise during his employment. Followinga series of hearings, a Workers' Compensation Law Judge (hereinafter WCLJ) concluded thatclaimant suffered a.625% occupational loss of binaural hearing. Upon claimant's appeal, theWorkers' Compensation Board affirmed.

On this appeal, claimant contends that because the employer's registered nurses whoperformed audiometric examinations on him are not "qualified professionals" pursuant to 12NYCRR 351.7, the examination results should not have been admitted into evidence by theWCLJ. He further asserts that, for this reason, the opinion of Sayeed Nabi, an otolaryngologistwho served as the employer's independent medical examiner, lacks credibility and should have[*2]been rejected due to his partial reliance on those examinationresults. Finding these arguments unpersuasive, we affirm.

12 NYCRR 351.7 provides, in relevant part, that "[e]xaminations as to the extent of hearingimpairment should be performed by qualified professionals, board-certified otolaryngologists,otologists or licenced audiologists." Here, the Board found that "the special certification andtraining received by the employer's nurses in performing audiograms" is sufficient to renderthem "qualified professionals" under 12 NYCRR 351.7. In that regard, the employer provideddocumentary evidence that all of the nurses in its employ underwent training and receivedcertification for audiometric testing, as required by the regulatory requirements of theOccupational Safety and Health Administration and the National Institute for OccupationalSafety and Health. Furthermore, Karen Rayer, a senior registered nurse in the employer'smedical department, provided extensive testimony regarding the training and certificationrequired of all of the employer's registered nurses through the Council for Accreditation inOccupational Hearing Conservation.[FN*]Rayer explained the certification course wherein each nurse was instructed on audiometrictesting, visual inspection of the ear, medical history, screening audiograms and record keeping,referral for medical treatment, care and maintenance of the audiometer, and selecting, fitting andsupervising the wearing of hearing protection. She further testified that the certification courseincluded a practical audiometric examination and a formal written examination that required aminimum of 90% correct to pass, and that the employer's nurses were required to be recertifiedevery five years. Rayer also described in detail the annual audiometric testing performed in theemployer's medical department, including the equipment used and the daily calibration of theaudiometer. In our view, the foregoing constituted substantial evidence supporting the Board'sdetermination that the nurses were "qualified professionals" for the purposes of performingaudiometric testing pursuant to 12 NYCRR 351.7 and, therefore, that the reports of the annualaudiometric tests which they performed were admissible into evidence.

In light of our findings in this regard, we reject claimant's assertion that Nabi's opinion mustbe rejected as incompetent due to his partial reliance on the audiograms performed by theemployer. On this point, we note that, although Nabi reviewed the results of the employer'saudiograms and found them to be consistent with his findings, he testified that his opinion thatclaimant suffered a.625% binaural loss of hearing was based upon the results of the audiogramhe performed during his examination of claimant.

Moreover, we find no basis to disturb the Board's decision to credit the opinion of Nabi overthat of Robin Lazar-Miller, an otolaryngologist who opined that claimant suffered from a 10%binaural loss of hearing. The Board is vested with broad authority to evaluate the credibility ofwitnesses, weigh conflicting evidence and draw any reasonable inference from the proof (see Matter of Person v Li MaintenanceAd, 66 AD3d 1063, 1064 [2009]; Matter of Papadakis v Volmar Constr., Inc., 17 AD3d 874, 875[2005]; Matter of Myers v Eldor Contr. Co., 270 AD2d 671, 672 [2000]). In finding thatthe opinion of Nabi was more credible than that of Lazar-Miller, the Board specifically notedthat Lazar-Miller did not perform an audiogram upon [*3]claimant and was unable to state whether claimant's hearing losswas consistent with the audiogram results of the employer, Nabi or Susanne Krause, theaudiologist who performed an audiogram that revealed a 10% binaural loss of hearing. UnlikeLazar-Miller, the Board concluded that Nabi performed a complete examination, provideddetailed testimony as to the audiogram results performed in his office and credibly opined thatclaimant suffered a.625% hearing loss. "According appropriate deference to the Board'scredibility determinations and resolution of conflicting evidence" (Matter of Pappas v State Univ. of N.Y. atBinghamton, 53 AD3d 941, 943 [2008] [citations omitted]; see Matter of Hernandez v Vogel'sCollision Serv., 48 AD3d 861, 861 [2008]), we find that the Board's determination thatclaimant suffered a.625% binaural loss of hearing is supported by substantial evidence in therecord and, as such, it will not be disturbed.

Claimant's remaining contention has been reviewed and found to be without merit.

Lahtinen, Malone Jr., Kavanagh and Stein, JJ., concur. Ordered that the decision is affirmed,without costs.

Footnotes


Footnote *: Under Occupational Safety andHealth Administration regulations, the Council of Accreditation in Occupational HearingConservation is a proper body for certification of the performance of audiometric testing.


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