Workers’
Compensation Board
OPINION
ENTERED: August 8, 2014
CLAIM NO. 201300451
HERMAN NAPIER PETITIONER
VS. APPEAL FROM HON. WILLIAM
J. RUDLOFF,
ADMINISTRATIVE LAW JUDGE
ENTERPRISE MINING CO.
AND HON. WILLIAM J. RUDLOFF,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Herman
Napier (“Napier”) seeks review of the Opinion and Order rendered September 11,
2013 by Hon. William J. Rudloff, Administrative Law Judge (“ALJ”) finding KRS
342.7305 unconstitutional, and awarding income benefits based upon a 4%
impairment rating and medical benefits for occupational hearing loss while
employed by Enterprise Mining Company (“Enterprise”). Napier also seeks review of the October 18,
2013 Opinion and Order on Reconsideration deleting those portions of the
original opinion regarding the extent and duration of disability, application
of multipliers, and the constitutionality of KRS 342.7305. The sole issue on appeal is the
constitutionality of KRS 342.7305(2).
Because we have no authority to decide constitutional matters, we are
unable to render an opinion regarding this issue.
Napier filed a Form 103
on March 25, 2013 alleging an occupational hearing loss arising out of and in
the course of his employment with Enterprise as a roof bolter due to repetitive
exposure to loud noise in the work place. He was last exposed to the noise on February
4, 2012.[1]
Napier attached a Form 104 indicating he
has worked as a roof bolter in the coal mining industry since 1993. He worked for Enterprise as a roof bolter
from 2006 to February 4, 2012. The
August 29, 2013 hearing order reflects the constitutionality of KRS 342.7305
and notice were added as contested issues.
In support of his
claim, Napier attached a November 1, 2012 letter prepared by Robert Moore (“Moore”),
an audiologist with Beltone Hearing Care Center. Moore noted Napier’s twenty-four year work
history working in the coal mining industry.
Moore then performed an audiometric evaluation which stated he showed
moderate high frequency loss for which he recommended two hearing aids.
Drs. Raleigh Jones and
Trey Cline performed a university evaluation on July 19, 2013. The August 5, 2013 Form 108 hearing loss
report and supplemental letter note Napier reported a twenty-four to
twenty-five year work history in underground coal mining, and he last worked in
February 2012. Napier stated he was
regularly exposed to loud noise in the mines.
He also admitted to riding a motorcycle and hunting occasionally, but
insisted he wore hearing protection when engaging in these activities. Dr. Jones stated an audiogram revealed a
sloping bilateral high frequency sensorineural hearing loss, consistent with
noise exposure. Dr. Jones stated the
testing established a pattern of hearing loss compatible with that caused by
hazardous noise exposure in the workplace. He opined Napier’s hearing loss is related to
repetitive exposure to hazardous noise over an extended period of
employment. Pursuant to the 5th
Edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment, Dr. Jones assessed a 4% impairment rating. He recommended bilateral hearing aids and
advised Napier to use hearing protection.
Enterprise deposed
Napier on June 21, 2012 pertaining only to the separate, unrelated back injury which
testimony will not be summarized further.
Napier also testified at the final hearing held August 29, 2013. At the outset of the hearing, the ALJ
confirmed the constitutionality of KRS 342.7305 was added as a contested
issue. Napier was born on February 13,
1968 and resides in Krypton, Kentucky.
He confirmed his twenty-four year history of working in underground coal
mines primarily as a roof bolter. He
also operated a shuttle car, scoop, miner and blaster. Napier testified the machinery he operated
generated constant, regular noise. He
worked forty to sixty hours a week.
Napier stated hearing is an important safety factor in performance of
his job. Napier stated he was first
informed his hearing loss was work-related when he was evaluated at Beltone.
In the September 11,
2013 opinion, the ALJ found Napier sustained occupationally-related noise
induced sensorineural hearing loss due to his many years of working as an
underground coal miner, based upon his testimony, the report of Drs. Cline and
Jones, as well as the provisions of the hearing loss statute. The ALJ also found Napier provided due and
timely notice. Under subsection C,
titled “Extent and duration; application of multipliers,” the ALJ unnecessarily
performed an analysis pursuant to Fawbush v. Gwinn, 103 S.W.3d 5 (Ky.
2003), and found Napier entitled to the three multiplier pursuant to KRS
342.730(1)(c)1. He also found Napier
entitled to medical benefits for his hearing loss, including hearing aids. Under subsection E, titled “Constitutionality
of KRS 342.7305,” the ALJ stated as follows:
As indicated hereinabove, KRS 342.7305
provides for the compensability of occupational hearing loss. KRS 342.7305(2)
provides that income benefits shall not be payable where the binaural hearing
impairment converted to impairment of the whole person results in an impairment
of less than 8%.
In
this case, Dr. Jones stated in his medical report that the plaintiff’s
work-related permanent hearing impairment will be 4% to the body as a
whole.
. . . .
Based upon the credible and convincing
evidence from the plaintiff and from Dr. Jones and the provisions of KRS
342.7305 and the holding of the Kentucky Supreme Court in the Vision Mining case, I make the
determination KRS 342.7305(2) is unconstitutional, in that it requires
plaintiffs, such as Mr. Napier, to meet a certain impairment rating threshold
substantially different than the requirement in other types of injury claims
and violates Mr. Napier’s constitutional guarantee of due process of law, and
further that the legislature’s requirement of the 8% threshold has no rational
basis in fact and that said requirement is discriminatory, since Mr. Napier is
treated differently than injured workers who sustain a single traumatic injury
or other types of cumulative traumas.
The bottom line is that Mr. Napier’s constitutional guarantee of due
process is being violated, and that said statute is unconstitutional.
The ALJ awarded
permanent partial disability benefits based upon a 4% impairment rating and
increased by the three multiplier, and medical benefits for Napier’s
occupational hearing loss.
Enterprise filed a
petition for reconsideration, raising several arguments. Of relevance, Enterprise argued the ALJ was
without authority to rule a statute unconstitutional, and erred in awarding
income benefits based upon an impairment rating below the 8% threshold pursuant
to KRS 342.7305(2). Based upon the
evidence, Enterprise asserted Napier is limited to an award of medical benefits
only. In the October 18, 2013 opinion and
order on reconsideration, the ALJ agreed with Enterprise, stating as follows:
4. The defendant has cited authority for the proposition that as an
Administrative Law Judge I did not have the authority to decide the
constitutionality of KRS 342.7305. Based
upon the law of the case, as cited by the defendant, I make the determination
that the defendant’s position in this regard is correct. Therefore, the rulings contained in the
Opinion and Order dated September 11, 2013 under Subheading C and Subheading E
are deleted in their entirety from said Opinion and Order.
5. I reemphasize that under KRS 342.020 and KRS
342.7305(3) the plaintiff is entitled to recover from the defendant medical
benefits, including medical benefits for his hearing loss, including prompt
authorization of hearing enhancement devices.
6. In light of the above determinations, parts
of the the [sic] Order and Award contained in the original Opinion and Order
dated September 11, 2013 in Paragraphs A and E thereof are deleted in their
entirety.
On appeal,
Napier challenges the constitutionality of KRS 342.7305 which governs hearing
loss claims. KRS 342.7305(2) provides as
follows:
Income
benefits payable for occupational hearing loss shall be as provided in KRS 342.730, except
income benefits shall not be payable where the binaural hearing impairment
converted to impairment of the whole person results in impairment of less than
eight percent (8%).
As an administrative tribunal,
this Board has no jurisdiction to determine the constitutionality
of a statute
enacted by the Kentucky General Assembly.
Blue Diamond Coal Co. v. Cornett, 300 Ky. 647, 189 S.W.2d 963
(Ky. 1945). Likewise, an Administrative
Law Judge lacks the power and jurisdiction to review and determine the constitutionality of the statute. Because this Board has no authority or
jurisdiction to reverse rulings of the Kentucky courts, we can render no
determination on this issue. Likewise,
the ALJ correctly deleted those portions of the September
11, 2013 opinion regarding the constitutionality of the hearing loss statute
and the award of income benefits enhanced by the three multiplier based upon a
4% impairment rating for Napier’s occupational hearing loss.
Enterprise does not
challenge any other aspect of the ALJ’s decision. The ALJ’s findings of an occupational hearing
loss and timely notice, as well as entitlement to medical benefits are
supported by substantial evidence. Wolf
Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). Napier’s hearing testimony, along with the
August 5, 2013 hearing loss report by Drs. Jones and Cline and the November 1,
2012 letter prepared by Mr. Moore, constitute the substantial evidence upon
which the ALJ could rely in determining Napier sustained occupational hearing
loss warranting future medical benefits, including hearing aids. Jackson v. General Refractories Co.,
581 S.W.2d 10 (Ky. 1979); Caudill v. Maloney’s Discount Stores, 560
S.W.2d 15, 16 (Ky. 1977).
Accordingly, the
September 11, 2013 Opinion and Order as amended, and the October 18, 2013
Opinion and Order on Reconsideration rendered by Hon. William J. Rudloff,
Administrative Law Judge, are hereby AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON MCKINNLEY MORGAN
921 SOUTH MAIN STREET
LONDON, KY 40741
COUNSEL
FOR RESPONDENT:
HON BRETT STONECIPHER
300 EAST MAIN ST, STE 400
LEXINGTON, KY 40507
ADMINISTRATIVE
LAW JUDGE:
HON WILLIAM J RUDLOFF
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
[1]
Napier also filed a
Form 101 on March 16, 2012 alleging a work-related back injury, claim number
2012-96954. The injury claim was not
consolidated with the hearing loss claim now subject to appeal, and will not be
summarized further.