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August 8, 2014 201300451

Commonwealth of Kentucky 

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.