Bilbrey v. Workers' Compensation Commissioner
In Bilbrey v. Workers' Compensation Commissioner, 186 W. Va. 319, 412 S.E.2d 513 (1991), the Court opined that "if one audiogram shows a substantially worse four frequency total than a second audiogram, the expert must work with the premise that since a noise-induced loss is static, some other factor must be responsible for the difference between the two audiograms, such as a sinus or eustachian tube problem." 186 W. Va. at 324, 412 S.E.2d at 518.
Notwithstanding the Bilbrey Court's explanation that "experts have pointed out that if there is a fluctuation in the hearing loss between audiograms which is greater than the margin of error, then the audiogram which shows the least amount of hearing loss should be used to determine the hearing loss due to noise exposure," 186 W. Va. at 323-24, 412 S.E.2d at 517-18 , the Court nevertheless went on to state, in dicta, that where the difference between two audiograms was greater than the margin of error, "the better audiogram of the two should be used as the audiogram most representative of the sensorineural loss." Id. at 324, 412 S.E.2d at 518.
Thus, by using the phrase "better audiogram" as opposed to a more specific phrase referring to "the audiogram which shows the least amount of hearing loss," the Bilbrey Court appears to have rejected the expert view in favor of a more neutral procedure.
Unfortunately, the Court failed to elaborate on just what it meant by the term "better." It is also important to note that, while the Division, and to some degree the bar, have apparently interpreted Bilbrey's explanation of the expert view as a holding, the Bilbrey Court stopped short of creating any new principle of law regarding how to determine which of two widely varying, yet apparently valid, audiograms most accurately represents a claimant's true level of hearing loss.