Guide To Testing and Evaluating Medical Legal Cases involving Hearing Loss Claims

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Problems in Evaluating Claims

Dr A says he is deaf.  Dr B says he hears normally.
Dr C says his asthma and sinus disease is industrially related.
Dr D says he has no asthma or sinus disease.
Dr E says the tinnitus is work related.  Dr F says, “there is no evidence that he has tinnitus.” Translation he is malingering.
Dr G says his nose is crooked and out of shape. Dr H says his nose is fine and doesn’t require surgery.
Dr I says his headaches are due to stress on the job.  Dr J says he has chronic sinus disease and just needs antibiotics.
Dr K says the TMJ is due to stress on the job. Dentist says his teeth are crooked, causing TMJ.
Dr M says the hoarseness is due to her using telephone at work. Dr N says she has a paralyzed vocal cord from prior thyroid surgery.
These are difficulties medical examiners face every day.  It is especially frustrating when one medical expert says the patient is deaf and the other says he hears fine.
In this presentation I will try to clear up the many questions you and others have asked me in the Ear Nose and Throat field. Because the number of lawsuits and worker’s compensation claims are increasing. I hope these guidelines can be of help.
How do you asses the claims of hearing loss, tinnitus, memory loss, insomnia, terrible headaches when these symptoms are claimed from a simple whiplash, with an auto repair bill of $400 for damage to a new Corvette?
Certainly a person may tune jet engines for 40 years and end up with hearing loss. But what about the claim of the 28 year old machinist where good hearing hygiene is practiced?  In companies with extremely strict ear protection practices, patients tell me: “No one ever told me to wear ear protection and it was not provided “.
Cough, nasal congestion, tearing, may follow severe exposure to chlorine gas. But the same complaints in the office worker due to copy machine ink?
The claim for nasal fracture may be filed after the nose is fixed. Claims vary from attacks from a robber to a box of cereal falling on the nose. There isn’t that many people around with a perfect nose to begin with. Did the alleged accident cause the nasal fx or is it preexistent?

Hearing Tests

The  Audiogram

ear_exam

Brain Stem testing consists of measuring brain waves. Sensors are places so that brain waves are measured and a computer analyzes them.

The audiogram is a subjective test of hearing done in a sound proof room. Various sounds at varying levels are introduced via ear phones. The worker signals when he hears the sound. Sounds are introduced designated by their frequency of vibration- 250, 500,1000, 2000, 3000, 4000, 6000, 8,000, and occasionally 10,000 and 12,000.  The 250, 500 sounds correspond to low tones, the low end of the piano. The 6000 and 8000 correspond to high pitch at the high end of the piano. The tones are called Hz or Hertz.
Volume, is designated by decibels.  0 (or zero) decibel hearing refers to perfect hearing, no hearing loss.  A 30 decibel hearing loss is a mild loss and a 70 decibel loss is severe, an incapacitating hearing loss.
An audiogram  must be performed by a state licensed audiologist in a sound proofed booth on a regularly calibrated audiometer, for Med Legal ENT.  This is because an audiogram is a subjective test and is vulnerable to fatigue, inattention, distraction and other variables.
Air Conduction is done by placing ear phones over the ears. This measures how the person hears this sound. Low tone such as 250 and 500 Hertz like a rumble or roar are tested. Hertz refers to the pitch of the sound. 6000 and 8000 Hertz are high pitched sounds like a tea kettle. Decibel refers to volume. Zero volume is ideal. 30 decibel indicates a mild hearing loss.
Worker’s Compensation and A.M.A. standards consider anything below 25 db (decibels) compensable loss at 500, 1000, 2000, and 3000 hz. At 70 db the hearing loss is severe.

Bone Conduction

Bone Conduction is tested in the sound proof booth by placing a bone vibrator on the mastoid bone. Here the sound bypasses the ear canal and the middle ear and measures how the nerve of hearing itself is working, and is called a nerve conduction test. For most persons the air conduction is the same as the bone conduction. But if the 3 bones of the middle ear don’t vibrate, the bone conduction may be normal and the air conduction may be poor.  Someone may have an air conduction audiogram at 35 decibels, but the bone conduction may be at zero, indicating normal nerve hearing.
The AMA formula averages the hearing levels at 500, 1000, 2000 and 3000 hertz, then subtracts 25 and multiplies by 1.5. To calculate binaural hearing loss, we multiply the better ear x 5, add the poorer ear and divide by 6. This gives a binaural percentage loss. California Worker’s Compensation uses the same formula for rating hearing ability or loss.
The AMA formula is based on the concept that hearing better than 25 decibles is non compensable. We take the values for the hertz tones 500, 1000, 2000 and 3000. Yet, medical science knows that noise trauma affects the high tones and may spare the lower tones. The first tone to be affected by cumulative noise is 4000. This is because the energy of the sound vibration first reaches the area of the cochlea in the inner ear where the high tones are heard. Then the energy loses power as it moves higher up the cochlea where the low tones are placed. But WC pays on hearing loss at the low tones and ignores loss in the high tones. Not a rational system!

Speech Reception Test

Here simple words are introduced at 30 db louder than the audiogram. Say the audiogram is at 30 db; we introduce sound at 60 db. If he hears the words at 60 db that matches the audiogram and confirms it.

Speech Discrimination Test

Here the patient is asked to identify words that sound alike and he is scored at a percentage of correct words. A person can have a 50 decibel hearing loss and still score 100%  If the person scores very low on the discrimination test, this is of diagnostic value.  It may be due to the shape of the audiogram, or problem in brain function.

Brain Stem Audiometry

Brain Stem testing consists of measuring brain waves. Sensors are places so that brain waves are measured and a computer analyzes them.  A steady sound is introduced at a certain volume. The computer analyzes the brain waves and tells when a standard wave is recorded from the sound.  If the sound at a normal tone is recorded, then we can conclude that hearing is normal at that tone. This can detect if a non-verbal infant/child can hear. In Med Legal ENT this detects if the person claiming deafness in that ear is malingering.  This is an objective test.

Total Deafness

If one ear is TOTALLY deaf, and the opposite ear is more or less normal, then the audiogram of the deaf ear will show hearing at a 70 decibel level. This is because the testee does hear a sound presented into the deaf ear, because the sound is so loud he hears it, but in the opposite ear.  If the audiogram shows zero at all tones and the opposite ear hears, then you have proof of malingering.

Tympanogram

This tests middle ear function. The ear canals are sealed. Positive and negative pressures are applied to see how the ear drum moves. In otosclerosis extra bone is laid down around the stapes bone so that the drum doesn’t move much. If there is fluid in the middle ear -serous otitis media- a certain shape of movement occurs and is recorded.

Stapedial Reflex Test

The ear canal is sealed so we can measure the movement of the ear drum. Sounds are introduced into the ear that are loud. This causes the stapedial muscle to contract in order to splint the ear drum to prevent too much movement. If the ear hears then we get a nice movement at a particular volume. Thus this is an objective test of hearing, however it is not an objective audiogram.

Otoacoustic Emission Test

This is an objective test of inner ear function. The ear is sealed and we see if the inner ear cilia are vibrating by picking up this sound with microphones.. We measure the hearing by bouncing sounds off the cilia. If the cilia work, they snap back from the sound. This is also an objective test and detects normal hearing or the degree of loss. It is much more delicate than the audiogram and is used to detect early ear damage before the audiogram shows it.  For example, a patient says he can’t hear well or understand well. Yet, his audiogram indicated good hearing. His Otoacoustic Emission Test may show that many of his cilia cells are not functional.

Stenger Test

This is a useful test in Med Legal ENT. Stenger Test is a test for malingering. He says he can’t hear in the left ear. The same sound is introduced into both ears. However the testee can’t tell which ear is being tested. Since he can hear it in the right ear, the honest patient will say he does hear the sound although he hears it in the right ear but the malingerer will say he doesn’t hear it at all. He thinks the sound is going to his left ear, but in fact it is going to his normal hearing right ear.
Sometimes the results of one audiogram may differ from another. One gives the worker a 12.5 db ratable hearing loss and the other a 16.5. Yet both are properly done. This is because a 5 db + or – variable is normal, but because of the AMA formula is based on a logarithmic scale, small differences can give big values. Sometimes we average the two or do another test.

Presbycusis

Presbycusis refers to the “natural” hearing loss that accompanies aging.  Much like presbyopia –visual changes with aging – presbycusis is seen in the elderly. Thus a person may present with a hearing loss due to typewriter noise at work, but he is age 70 and he simply shows a presbycusis curve. Often the worker lost hearing before age 40, but with the addition of presbycusis, now he and his wife are aware of the loss.

ENG or Electronystagmography

This is a test of the vestibular or balance portion of the inner ear. In Cochlear concussion, both the hearing and balance may be affected.
In ENG, the movement of the eyes are recorded when the ear is stimulated by hot or cold water or air.  When the ear in heated, this causes dizziness and the eyes jerk, with a fast movement followed by a slow movement in specific directions based on the temperature used. If one ear fails to respond to hot or cold, means that ear’s vestibular system is non-functional. Usually part of a dead ear.

Evaluating Hearing Claims

When a worker presents with a hearing loss claim:

  • check preemplyment records. Is his hearing decreased beyond normal presbycusis (aging)?
  • check his regular clinic records. Has he been treated at the clinic for ear disease or sudden hearing loss?
  • gather all audiograms and see if there is a consistency. In Meniere’s disease the hearing fluctuates.
  • Is the loss symmetrical?  In noise the hearing loss is symmetrical. In physical trauma it is one sided.
  • Is this a conductive loss – the bone conduction is better than the air conduction. If so, it is probably not work related.
  • Is there consistency? Does the audiogram match the speech reception threshold?

Evaluating Tinnitus Claim

Tinnitus

Tinnitus is a subjective sound that the patient hears. It is heard also in a perfectly soundproofed room.  It is not originating from the outside.  It is originating from the person’s own body.
Objective tinnitus is one that can be recorded by instruments. It can be due to muscle contractions or blood vessel contractions, such as an aneurism.
Subjective tinnitus is what Med Legal ENT usually deals with. Here the patient hears it and there is no objective way to record it. It may originate from hyperactive hair cells in the inner ear, pressure fluid in the inner ear, pressure on a nerve, or from the brain- perhaps to make up or reinforce a hearing loss tone. It may be caused by neck or TMJ disorders.
Tinnitus claims are increasing. There are no objective tests here. As a rule, if the tinnitus can be measured, is 10 decibels in volume louder than the poorest hearing sound, it is probably valid. If the same match shows up on several tests, this adds validity. However, the degree of symptoms varies independently of the loudness. If the individual’s personality or personal situation reinforces his symptoms, he will have more complaints than someone who accepts the symptom.

Tinnitus Matching Test

After the audiogram is done, the tester asks which of the audiogram test sounds resemble the tinnitus. For example, the patient shows a hearing loss of 40 db at 4000 hz.  Now he says that the tinnitus sounds like that tone. Now the audiologist asks him to match how loud his tinnitus is. Generally he will identify it as being at 50 db of loudness. This is 10 decibels louder than the 4000hz sound and is the volume given.  If several audiograms are similar with similar tinnitus matching results, this lends validity to the tinnitus claim.

Evaluating a Respiratory Claim

Mucociliary Clearance

When persons are exposed to chlorine gas, chromium dusts, Skydrol and various solvents, this can affect the nasal cilia. Normally the nasal and chest cilia pulse to remove bacteria and toxins. When the cilia fail to remove bacteria, infection, sinusitis results.
Is the sinus disease due to the chemicals?  Much depends on the type or chemical, protective devices, patient’s history, etc. The presence of impaired mucociliary clearance can be objectified by measuring the speed of the nasal cilia. One test is the Saccharine Test.  Here a particle of Saccharine is placed in the nose and you time how long it takes for the cilia to propel it to the throat where it is swallowed and tasted. The healthy nose tastes it in 5 minutes. The sick nose in 25 minutes. If the person doesn’t taste the saccharine in 30 minutes, he shows impaired function, possibly due to the toxic exposure.
Pulmonary Function Tests. These measure the lung function and readily diagnose asthma, chronic obstructive pulmonary disease, COPD, or the amount of lung function that is present or missing. Berrylium and Chromates are common lung irritants. Asbestosis may not cause significant lung malfunction.

Allergy Tests

When someone is thought to be allergic to certain inhalants, blood can be drawn and sent to a laboratory and tested for many different products. Mold sensitivity may require blood as well as skin injection type testing.  Testing for mold is difficult because there are literally 100 common molds that one can be sensitive to.   It is best to test for the presence of mold in the suspected area, identify them, then test for that with blood or intradermal tests.
However if the allergy is due to products that contact the skin, these require patch type skin testing.

Scuba Diving Work Comp Claims

A certain number of temporary problems may result from scuba diving. A round window blowout causes hearing loss and requires immediate surgery.

Presbycusis

B.J. files a claim for hearing loss. He has a normal pre-employment audiogram and his current audiogram shows a hearing loss. But his hearing loss is in proportion to presbycusis, the natural ageing process and is therefore not of work origin.

Otosclerosis

C.C. files a hearing loss claim. He has many audiograms to prove he has a compensable hearing loss. But his audiogram only tests the air conduction. When the bone conduction is tested, he has normal nerve function. His loss is due to a medical condition that keeps his ossicles – 3 ear bones – from moving –he has otosclerosis.

Whiplash Claims

The claim is for dizziness after the whiplash. Plus tinnitus. Plus TMJ pain. He can’t work, etc. But his hearing is normal. When the audiologist asked him which of the audiogram sounds matched his tinnitus he was unable to do so. He was tested with VAT. This is a test of head shaking; the computer analyzes the ability of the eye to stay on a dot while shaking his head. This showed no vestibular problem. His neck was soft. As to TMJ, he opened in the midline all the way. All these indicate normal findings. Claim denied.
You can get tinnitus and hearing loss and headache from whiplash. Best treated by physical therapy.

Analyzing a Medical Report’s Validity

Board Certification

a. Is the doctor board certified in a field you never heard of: Board Certified in Neural Tube Orthopedics.  On the other hand, is he certified by the American Board of Orthopedics? The medical library has a list of members of recognized specialties.

Hospital Appointment

b. Is the doctor on staff at recognized hospitals? Hospitals do a good job of filtering the applicants.

Nothing Improves Over Time

c. Is the pain or other symptoms of the patient the same today as the day of the accident? Pain reduces, dizzyness improves. There should be a change after two years.

Recognized Testing Procedures

d. Is the evidence of disability based on a test you never heard of? Anyone can come up with a brand new test that PROVES disability. Since no one else uses the test, how to say what the results indicate. Check to see if the local medical school or hospital uses it. If they never heard of it, question the test.

Get Objective Tests

e. Look for truly objective testing. He does have nystagmus when he turns his head to the left. His hearing test does show hearing loss on the side of the injury. His nasal cilia do show impaired function after the chemical explosion. All these factors support the claims.
But when the claimant has symptoms from head to toe, none responded to therapy, then an exaggeration on the objective test indicates exaggeration on the other claims. Hearing test can be objectified and help evaluate other claims.

Illness and Symptoms May Not be Work Related

f. Look for causes of the complaint.  We regularly see hearing loss workers comp. claims that turn out to have medical etiologies such as tumors, diabetes, middle ear disease or Meniere’s disease. Similarly the orthopedist may find that the back problem is of congenital origin.
A report from an audiologist says the worker has tinnitus due to his job. When he sees the ENT specialist, he finds severe hypertension, overdose of aspirin products, and diabetes.  Any one of these will cause tinnitus.

The Doctor’s C.V.

g. In questionable cases always ask for the doctor’s C.V. How else would you know that the 12 page report of symptoms and findings that was presented by Robert Smith, D.O. is from a doctor of oriental medicine only licensed to practice acupuncture!

Proper Physical Therapy

h. Look carefully at the 6 months of daily physical therapy. The legitimate therapist orders home exercises and even records when the exercises weren’t done at home. There should be a clear record of what are the symptoms at each visit or at least every third visit. If not, better question everything.  Six months of daily hot packs strongly indicates unnecessary therapy.

Speech Reception Test Must Match Audiogram

i.. If the speech reception threshold does not match the audiogram, there is a problem.   If the audiogram is recoded at 60 decibels, but the speech reception is at 20 decibels, then the audiogram is definitely in error. At a speech reception of 20 db, the audiogram should be between 5 and 20.

Pre-existing conditions

j. A major reason to review claims and reports carefully is that many persons especially from other countries may already have a hearing loss, or a bad back, before they start to work. Unless a pre-employment audiogram is available, it is a problem showing when hearing loss began.

Ear Infections

k. On the other hand, the claims of chronic ear infections due to dirt on the job are easy to verify because mastoid x-rays will show previous childhood ear disease.

Non-Work-Related Problems

Hearing Loss

Much hearing loss is not work comp related: Childhood measles, birth defects, meningitis, mumps, drug toxicity or street drugs, or medical problems including infections of the middle and inner ear, or Meniere’s disease of the inner ear. These are common illnesses and must be considered.  Between the I Pods and the Boom Boxes and the Rock Concerts, it’s a wonder that anyone has normal hearing.
Otosclerosis is a medical condition caused by bone being laid down so that the ear drum doesn’t vibrate well. Here the ability to hear is better over the mastoid bone – bone conduction – than by the ear canal – air conduction. The fact that he hears better by bone conduction is diagnostic.
Meniere’s disease is a medical condition caused by increase in fluid pressure in the inner ear. Symptoms include hearing loss, vertigo, and tinnitus. The symptoms may fluctuate. Not WC.

Headaches

Headaches come in many forms including Cervical, Tension, Visual (need eye glasses), Pre-Menstual.
Migraine headaches are severe, may awaken in the middle of the night, and require drugs such as Imitrex. It is episodic. It is describes as throbbing. Helped by dark room, lying quietly.
Histamine Cephalgia is more severe than Migraine and involves one side of the head with associated pupil change, nasal discharge. Helped by walking about.

Empty Nose Syndrome

Empty Nose Syndrome or ENS refers to symptoms when the nasal turbinates have been removed surgically. On CT scan you see an absence of turbinates. These are the shelves on the side of the nose that warm and moisten the air. In ENS, patients get severe dryness and crusting and feel that they are not getting enough air. Many become depressed when they have Empty Nose Syndrome.

Chronic Ear Infections

In countries with poor medical care, ear infections may be frequent and cause childhood hearing loss. The infection being untreated may persist into adulthood. Mastoid X rays tell us how long the infection has been present.
To repeat, even in the most conscientious hearing program, I hear the worker claim that no one told him to wear ear protection. I advise companies to have the worker sign a form stating that he is wearing ear protection every year.

Re-Reading the Expert’s Report

The medical expert, especially the otolaryngology expert, are relied upon to advise in their special fields. The ear nose and throat expert deals in problems of hearing, tinnitus, sinus and nasal injuries. The orthopedic expert deals with questions of identifying complex musculoskelatal problems. Because often the medical expert’s report is so esoteric, here are some pointers to help you evaluate these reports.
You have the expert’s report. What do you check for? How do you evaluate for authenticity?
Here are some suggestions to help you when you read the medical legal report.

What are his/ her degrees? Is it a degree you are familiar with? DOM is not doctor of osteopathy. Is the PhD in engineering or natural healing? If it is in psychology from U.C. Berkeley, It is easy to verify.  Never be bashful about verifying credentials. “Trained at Mayo Clinic may mean he took a one day course there.

What is his specialty? Is he a member of the Board of Orthopedic Olympic Reconstruction? Or Neurologic Best Evaluation? The American Board of Medical Specialists maintains a list of accepted board designations and members and these can be checked at the web site http://www.certifieddoctor.org/verify.html Sometimes there is a claim of being president of the American Certified Neuro Ortho Evaluators of which not only is he the president, but also the sole member.

What are the tests that support the conclusions? You never heard of a Neuro-Valvo Diagnosticator? Ask at the local medical school or teaching hospital. If they never heard of it either, think carefully before accepting the report, much less paying for the test. When no one else does the test, you can obtain whatever conclusions you wish. Medline won’t help you here because they don’t have any articles on the Neuro-Valvo or other “private” testing devices.

If the report doesn’t sound right, check the curriculum vitae. True story: He listed himself on staff of a prestigious hospital. Knowing this person’s poor reputation, I didn’t feel he would be accepted to this staff. Turns out he wasn’t on staff and had never ever been. This deception was brought out at trial. Most hospitals do a fair job of checking their staff applications so staff membership can be important. Never be bashful about checking credentials.

Articles published. Article submitted for publication is not the same as articles published. Where were these published? Archives of Otolaryngology is strictly peer reviewed. The South Bolivia Journal of Hematology may not be. Each field has its prestigious journals in engineering, materials testing, etc.

Who did the actual testing? In today’s world, the audiogram should be performed by a state of California licensed audiologist. Otherwise the entire report may be problematic. Audiometer should be calibrated and tested. Unless this is observed, any sort of results can be obtained. In many area where the tests are new, accepted standards of normal or abnormal may still be in debate. A useful source for this information is the Northern Light search engine at http://standard.northernlight.com They have lay articles on advanced subjects which are abstracted, but you can also get detailed articles.

The name of the clinic that submits the report is often a clue.  Is the name deliberately contrived to associate with another well known facility? The May Oh Brothers clinic? The Truly Blessed St John’s Clinic? Sometimes this is a real clue as to when the report should be questioned.

The duration of unchanged symptoms. Is the pain the same two years later? Is the dizziness unchanged? Can’t be the same. The body adapts to these. Question the report.

Endless ineffective physical therapy? Daily hot packs for 6 months? Physical therapy requires treatment plans, progress reports and home exercises. Unless these are present in writing, report need to be evaluated.

Poor English and Grammar? Might be a good report. Not every fine doctor is a scholar these days.

These are just suggestions about what to look for in the expert’s report.  I hope this will be of value to you.

Written by Board Certified Otolaryngology Head Neck Surgery Expert Witness
Expert Witness No. 470
Click here to view this Expert’s CV

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