Workers’
Compensation Board
OPINION
ENTERED: July 15, 2016
CLAIM NOS. 201500650 & 201500649
D&L MINING PETITIONER
VS. APPEAL FROM HON. JEANIE OWEN MILLER,
ADMINISTRATIVE LAW JUDGE
JIMMY HENSLEY
HON. JEANIE OWEN MILLER,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. D&L Mining Company, LLC
(“D&L”) appeals from the March 4, 2016 Opinion, Order and Award rendered by
Hon. Jeanie Owen Miller, Administrative Law Judge (“ALJ”). On appeal, D&L argues the evidence
compels a determination Jimmy Hensley (“Hensley”) did not suffer any injurious
exposure to noise during his employment.
It also argues Hensley is not entitled to enhanced benefits pursuant to
KRS 324.730(1)(c)(1).
For the reasons set forth herein, we affirm.
Hensley worked as a
heavy equipment operator in various industries for 32 years. His final employment was with D&L, where
he worked from November 16, 2014 to December 18, 2014. Hensley was laid off when D&L shut down
its operations on December 18, 2014 and he has not been employed since.
Hensley filed a Form
101 alleging cumulative trauma injuries to his back and shoulder, and a hearing
loss claim. The subject of this appeal
involves only the hearing loss claim.
Hensley testified he intended to file a claim for hearing loss in 2013
after he was laid off from a prior employer.
In anticipation of filing that claim, he underwent audiometric testing
at Tri State Hearing Care Center which revealed his most comfortable listening
level was 105 decibels in both ears. The
results indicated a moderate to severe sensorineural loss, with speech
discrimination at 75% in the right ear and 80% in the left. The technician recommended hearing aids.
Ultimately, Hensley
found other employment in 2013 and he never filed a workers’ compensation
claim. After he was laid off from
D&L, he was again tested for hearing loss on March 12, 2015. This test again indicated moderately severe
sensorineural loss binaurally, and Hensley’s most comfortable listening level
was 70 decibels in the right ear and 75 decibels in the left ear. Speech discrimination was 88% in the right
ear and 90% in left. At the 2015 hearing
test, Hensley complained of constant ringing in both ears. Again, hearing aids were recommended.
Dr. Barbara Eisenmenger performed a University Evaluation and was
provided the 2015 audiometric testing results, but not the 2013 testing
results. Based on the reported history
of noise exposure, Dr. Eisenmenger diagnosed hearing
loss resulting from long term noise exposure.
She assessed a 17% whole person impairment
pursuant to the American Medical Association, Guides to the Evaluation of
Permanent Impairment, 5th Edition (“AMA Guides”). She further opined no portion of Hensley’s
hearing loss resulted in an active impairment prior to acquiring the
work-related condition. She recommended
the use of hearing aids, and hearing protection whenever exposed to loud noise.
Lisa Koch, AuD performed an independent medical evaluation on January
26, 2016. She reviewed the reports of
Hensley’s audiometric testing in 2013 and 2015, and determined the results of
the two evaluations were similar. She
concluded Hensley suffered an 18% whole person
impairment pursuant to the AMA Guides, but suffered a pre-existing active
impairment prior to starting work at D&L.
Relying on the 2015 audiogram, she concluded Hensley did not suffer any
additional hearing impairment during the limited time he worked at D&L.
Hensley testified he
was constantly exposed to loud noise at D&L due to the heavy equipment
being operated. He further testified he
did not wear hearing protection while working there, and was not required to do
so. He further explained he could not
perform his job with hearing protection, as he needed to be able to hear the
other equipment around him for safety reasons.
The ALJ determined
Hensley suffered an injurious exposure to hazardous noise at the D&L
worksite, and awarded benefits pursuant to KRS 342.7305. She relied on Dr. Eisenmenger’s
report and Hensley’s testimony to reach this conclusion. The ALJ further determined that Hensley is
unable to return to his pre-injury employment because he would be required to
wear hearing protection, which would be unsafe as a heavy equipment
operator. Accordingly, the ALJ enhanced
the award of benefits pursuant to KRS 342.730(1)(c).
D&L did not file a
petition for reconsideration. On appeal,
it argues the evidence requires a finding Hensley was not injuriously exposed
to noise while employed at D&L. It
relies upon the 2013 audiometric test results to support this position. Our analysis begins with KRS 342.7305(4),
which states:
When
audiograms and other testing reveal a pattern of hearing loss compatible with
that caused by hazardous noise exposure and the employee demonstrates
repetitive exposure to hazardous noise in the workplace, there shall be a
rebuttable presumption that the hearing impairment is an injury covered by this
chapter, and the employer with whom the employee was last injuriously exposed
to hazardous noise shall be exclusively liable for benefits.
D&L concedes
Hensley’s audiogram reveals a pattern of hearing loss compatible with that
caused by hazardous noise exposure. It
also does not explicitly challenge the determination Hensley demonstrated
repetitive exposure to hazardous noise in the workplace. Rather, it claims the 2013 audiometric
testing rebuts any presumption he suffered an injurious exposure at its
worksite.
The Kentucky Supreme
Court considered a somewhat similar factual situation in Greg’s Construction
v. Keeton, 385 S.W.3d 420 (Ky. 2012), one of the few reported cases
construing KRS 342.7305(4). In Keeton,
the claimant established his hearing loss was compatible with that caused by
hazardous noise exposure. The claimant
further testified he was exposed to loud noise repetitively over his 35 years
of employment as a heavy equipment operator.
The Court then considered whether the claimant sufficiently established
he had sustained injurious exposure during the six months he worked for the
defendant, Greg’s, his last employer:
The ALJ did not err by
determining that the claimant sustained an injurious exposure to hazardous
noise in his employment with Greg's. Workers' Compensation is a statutory
creation. KRS 342.0011(4) defines an injurious exposure as being “that exposure
to occupational hazard which would, independently of any other cause
whatsoever, produce or cause the disease for which the claim is made.” Although
Chapter 342 considers noise-induced hearing loss to be a gradual injury for the
purposes of notice and limitations, KRS 342.7305(4) treats the condition much
like KRS 342.316(1)(a) and KRS 342.316(10) treat an
occupational disease for the purpose of imposing liability. Mindful that none
of these statutes makes an employer's liability contingent on a minimum period
of exposure and that Chapter 342 contains but one definition of injurious
exposure, we conclude that KRS 342.0011(4) defines the term not only with
respect to a disease but also for the purpose of KRS 342.7305(4). Contrary to
what Greg's would have us conclude, the final clause of KRS 342.7305(4) does
not require a worker to prove that the last employment caused a measurable
hearing loss. It refers to the type of exposure to hazardous noise that would
result in a hearing loss if continued indefinitely.
Consistent with the
practical reality that workers change jobs, sometimes frequently, as well as
the medical realities that noise-induced hearing loss develops gradually and
that audiometric testing is based to some degree on the worker's subjective
responses, KRS 342.7305(4) imposes liability on the last employer with whom the
worker was injuriously exposed to hazardous noise. Like KRS 342.316(1)(a) and KRS 342.316(10), KRS 342.7305(4) bases liability
solely on the fact that the employment involved a type of exposure known to be
injurious, i.e., a repetitive exposure to hazardous noise.
The claimant worked as a
heavy equipment operator for nearly 35 years and testified that he was exposed
to loud noises throughout his career, including his work with Greg's. Nothing
tended to disprove his testimony, such as evidence that heavy equipment operation
did not involve an injurious exposure to hazardous noise; that the claimant's
work for Greg's differed from his previous work; that the ear muffs he stated
that he wore were of such a quality that they prevented exposure to hazardous
noise; or that Greg's required employees to participate in a hearing
conservation program that prevented exposure to hazardous noise.
Finally, the ALJ did not err
by refusing to apportion liability among Greg's and the other defendants.
Regardless of whether ALJs may apportion liability in other types of gradual
injury claims, KRS 342.7305(4) is unambiguous with respect to liability for noise-induced
hearing loss. The statute imposes liability “exclusively” on the employer with
whom the employee was last injuriously exposed to hazardous noise. We presume
that the legislature intended to say what it said.
(Internal citations omitted).
Hensley’s case is similar to Keeton. KRS 342.7305 establishes a rebuttable
presumption that hearing impairment is a compensable injury, “when audiograms
and other testing reveal a pattern of hearing loss compatible with that caused
by hazardous noise exposure and the employee demonstrates repetitive exposure
to hazardous noise in the workplace.” Audiometric testing established Hensley’s
hearing loss is compatible with that caused by hazardous noise exposure. This proof is unrebutted. Hensley testified he was exposed to hazardous
noise at all of his prior worksites, including D&L. D&L offered no testimony to rebut the
assertion Hensley was exposed to hazardous noise levels at its worksite. Thus, the presumption that Hensley’s hearing
loss is a compensable work-related injury has not been rebutted.
Contrary to D&L’s assertions on
appeal, the rebuttable presumption created by KRS 342.7305(4) pertains only to
the compensability of the hearing loss.
The second clause in the statute, separated by a comma, conclusively
establishes that the employer with whom the employee was last injuriously
exposed to hazardous noise shall be exclusively liable for benefits. Thus, having established his hearing loss is
a compensable work injury, Hensely needed only to
prove he was injuriously exposed to hazardous noise at D&L. He testified he was exposed to constant loud
noise at D&L and this testimony was not rebutted. The claimant’s testimony alone was sufficient
to establish injurious exposure in Keeton. See
also Maker’s Mark Distillery v. Corbett, 2015 WL 3532905 (Ky. App.
2015)(interpreting Keeton to establish that the
claimant’s testimony is satisfactory to establish hazardous noise exposure in
the workplace).
We acknowledge the very significant
distinction between Keeton and the factual situation herein: unlike Hensley, the claimant in Keeton
did not undergo audiometric testing prior to his employment with the
defendant. We are sympathetic to
D&L’s persuasive argument that the 2013 and 2015 audiometric testing arguably
establishes Hensley’s hearing loss did not worsen during his brief
employment. However, we nonetheless are
constrained by the plain language of the statute and are bound by the Supreme
Court’s pronouncements in Keeton.
KRS 342.7305(4) expressly places exclusive liability on the employer
with whom the employee was last injuriously exposed. Hensley testified to hazardous noise exposure
at D&L, and this testimony was unrebutted.
Despite this testimony, we are tempted to conclude Hensley’s exposure at
D&L, though perhaps hazardous, was not injurious
as established by the audiometric testing.
However, the Supreme Court, in Keeton, has rejected this argument
by specifically interpreting the statute otherwise: “Contrary to what Greg’s
would have us conclude, the final clause of KRS 342.7305(4) does not require a
worker to prove that the last employment caused a measurable hearing loss. It refers to the type of exposure to
hazardous noise that would result in a hearing loss if continued indefinitely.”
Keeton, 385
S.W.3d at 425. Accordingly, the
ALJ’s award of benefits pursuant to KRS 342.7305 is supported by substantial
evidence and must be affirmed. Special Fund v. Francis, 708 S.W.2d 641 (Ky.
1986).
Furthermore, the ALJ’s award of
enhanced benefits is similarly supported by substantial evidence. KRS 342.730(1)(c)(1)
permits the enhancement of benefits where the employee “does not retain the
physical capacity to return to the type of work that the employee performed at
the time of the injury.” Hensley
operated heavy machinery at the time of the injury. He testified he could not wear hearing
protection while operating heavy machinery because he would be unable to hear
other equipment around him and the voices of other operators, thus creating a
safety hazard. Dr. Eisenmenger
recommended Hensley wear hearing protection at any time he was exposed to loud
noise. This proof, when taken together,
constitutes substantial evidence that Hensley lacks the physical capacity to
return to any work as a heavy equipment operator. Smyzer v. B. F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971). As such, we must affirm the ALJ’s award of
enhanced benefits pursuant to KRS 342.730(1)(c)(1). Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).
Accordingly, the March 4, 2016 Opinion, Order and Award rendered by Hon. Jeanie Owen
Miller, Administrative Law Judge, is hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON DAVID BLACK
101 S FIFTH ST #2500
LOUISVILLE, KY 40202
COUNSEL
FOR RESPONDENT:
HON MCKINNLEY MORGAN
921 S MAIN ST
LONDON, KY 40741
ADMINISTRATIVE
LAW JUDGE:
HON JEANIE OWEN MILLER
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601