Missouri Court Says Medical “Expert” Need Not be an M.D.
Opinion of Audiologist With Ph.D. Trumps Opinion of M.D.
A Missouri appellate court has affirmed a decision of the state’s Labor and Industrial Relations Commission awarding permanent partial disability benefits to a claimant for a tinnitus condition in spite of the fact that its decision was based upon the expert testimony of an audiologist (with a Ph.D. in hearing science) and further, that the audiologist’s opinion was contradicted by that of a medical doctor, specializing in otolaryngology [Hogenmiller v. Mississippi Lime Co., 2019 Mo. App. LEXIS 706 (May 7, 2019)].
Background
Hogenmiller worked in the employer’s manufacturing plant for some 41 years and testified that he worked around loud machinery for more than 20 years at the plant. He further indicated that for many years he was required to wear hearing protection because of the noise. Hogenmiller sought workers’ compensation benefits, contending he suffered from tinnitus as a result of his work for the employer.
The medical evidence conflicted. Hogenmiller’s expert, Dr. Mason, an audiologist with a Ph.D. in hearing science, testified that Hogenmiller suffered a five-percent permanent partial disability of the body as a whole as a direct result of his work-related tinnitus. The employer’s expert, Dr. Mikulec, a medical doctor with a specialization in otolaryngology, testified that Hogenmiller suffered no disability related to his employment and that Hogenmiller’s tinnitus was caused by aging, not his exposure to noise at the plant.
ALJ’s Decision
The employer objected as to the admissibility of Dr. Mason’s testimony, claiming Dr. Mason was unqualified to offer expert testimony on the nature, extent, and cause of Hogenmiller’s tinnitus. The ALJ overruled the employer’s objections and found Dr. Mason’s testimony to be admissible and credible and awarded Hogenmiller benefits, representing five-percent of the body as a whole. The Commission affirmed the ALJ’s award and the employer appealed.
Employer’s Contentions
On appeal, the employer contended that the Commission erred by allowing Dr. Mason to testify regarding the nature, extent, and cause of Hogenmiller’s tinnitus. Specifically, the employer argued that because Dr. Mason did not review any medical records, and because his opinion that Hogenmiller suffered from work-related tinnitus was based solely on Hogenmiller’s subjective reports, Dr. Mason lacked any superior knowledge regarding the relevant subject matter that might assist the trier of fact and thus his testimony was inadmissible under Mo. Rev. Stat. § 490.065. The employer also claimed that Dr. Mason’s report was inadmissible because it was not based on reliable data, as required by § 490.065.1.
Missouri’s Expert Testimony/Opinion Statute
The appellate court reviewed the status of the law, noting that with regard to the admission of expert evidence, Mo. Rev. Stat. § 490.065 (Cum. Supp. 2017) charged the Labor and Industrial Relations Commission with determining:
- Whether the expert is qualified,
- Whether the expert’s testimony will assist the trier of fact,
- Whether the expert’s testimony is based on facts or data reasonably relied on by experts in the field, and
- Whether the facts or data on which the expert relies are otherwise reasonably reliable.
The court stressed that in deciding whether to admit an expert’s testimony, the Commission was required to ensure only that the statutory factors were met; those factors did not have to be met to any particular degree. Moreover, the decision to admit an expert’s opinion was discretionary.
Medical Expert Need Not be a Physician
Citing earlier precedent, the court said a medical expert need not be a medical doctor, or physician. What must be shown is that due to the witness’s education or specialized experience, he or she possesses superior knowledge on a subject that persons without such education or experience would be incapable of forming an accurate opinion or drawing correct conclusions.
Hogenmiller’s Tinnitus
The court continued that tinnitus is a compensable work-related injury separate and apart from hearing loss. The court noted that both “experts” agreed that there was no objective standard for diagnosing tinnitus. The court noted that in an earlier Commission decision, Resinger v. Mississippi Lime Co., 2015 MOWCLR LEXIS 126 (Dec. 23, 2015), the Commission had ruled that it was not possible for a physician to demonstrate or certify an employee’s disability referable to tinnitus, nevertheless, tinnitus claims based on subjective evidence have prevailed in Missouri [citing Hall v. Missouri State Treasurer, 500 S.W.3d 282, 287 (Mo.App.S.D. 2016).
Appellate Court’s Conclusion
Based on the foregoing, the court rejected the employer’s argument that Dr. Mason was unqualified to testify about tinnitus because he had focused his practice on the field of audiology and not on tinnitus. The court said that given Dr. Mason’s background and experience in audiology, “alongside his multitude of other credentials, and considering that he has developed informed techniques to measure a claimant’s tinnitus” [Opinion, p. 8-9], the Commission did not err in finding that Dr. Mason was qualified to testify as an expert on tinnitus. Given its own requirement to review de novo the admissibility of an expert’s opinion, the court concurred in the Commission’s decision to allow it into evidence.