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January 15, 2016 201285818

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  March 17, 2017

 

 

CLAIM NOS. 201501945 & 201501131

 

REX COAL CO INC                                PETITIONER

 

 

 

VS.          APPEAL FROM HON. R ROLAND CASE,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

LONNIE HUFF

HON. R ROLAND CASE,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

REVERSING AND REMANDING

 

 

                       * * * * * *

 

 

BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 

 

 

RECHTER, Member.  Rex Coal Co. Inc. (“Rex Coal”) appeals from the October 3, 2016 Opinion, Award and Order and the November 7, 2016 Order rendered by Hon. R. Roland Case, Administrative Law Judge (“ALJ”) awarding Lonnie Huff (“Huff”) permanent partial disability benefits for occupational hearing loss, enhanced by the three multiplier pursuant to KRS 342.730(1)(c)1.  The sole issue raised by Rex Coal on appeal is whether the ALJ erred in enhancing Huff’s income benefits.  We reverse.

          Huff’s hearing loss claim was consolidated with his claim for cumulative trauma injuries to his shoulders and wrists.  Rex Coal appeals only from the ALJ’s decision relating to the hearing loss claim.  Therefore, the proof relating to the cumulative trauma claim will not be discussed.

          Huff testified by deposition on September 14, 2015 and at the hearing held August 4, 2016.  He worked for more than forty years in the mining industry, and for Rex Coal since 2008, primarily as a repairman servicing mining equipment and beltlines.  Huff stated he was having problems with his hearing at the time he ceased his employment.  However, the reason he quit working was because of pain in his joints and back.  He indicated, “I was just beat down, wore out and couldn’t – couldn’t work no more.” 

          On November 4, 2015, Dr. Raleigh Jones performed an evaluation pursuant to KRS 342.315 at the request of the Kentucky Department of Workers Claims.  He diagnosed occupationally related, noise-induced sensorineural hearing loss and assigned an 11% impairment rating pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment, 5th Edition.  Dr. Jones recommended bilateral hearing aides, and for Huff to use hearing protection if he is going to be exposed to any further noise in the future.   

          Huff submitted a report from Beltone documenting a hearing examination performed on June 2, 2015.  Testing revealed Huff has mild to moderate binaural hearing loss. 

          The ALJ found Huff sustained a permanent partial disability as a result of cumulative trauma injuries to his shoulders and wrists and was not entitled to the three multiplier for those injuries.  The ALJ’s findings regarding the hearing loss claim are as follows: 

     Dr. Raleigh Jones examined the plaintiff pursuant to KRS 342.315.  As a result of that examination he concluded the plaintiff had an 11% impairment and also indicated the hearing loss was compatible with that caused by hazardous noise exposure in the workplace.  Dr. Jones opined within reasonable medical probability the plaintiff’s hearing loss was related to repetitive exposure to hazardous noise over an extended period of employment.  He specifically indicated the plaintiff should use hearing protection.  The ALJ therefore finds the plaintiff has established that he has an 11% impairment as a result of occupational hearing loss.  The plaintiff’s degree of hearing loss would restrict him from returning to work as an underground coal miner without being a danger to himself and other employees.  The ALJ finds the plaintiff’s testimony concerning his hearing loss to be credible.  Since the plaintiff can no longer return to work in his customary occupation as an underground coal miner and work safely given his degree of hearing loss the plaintiff is entitled to the three factor.

 

          Rex Coal filed a petition for reconsideration making the same argument it raises on appeal.  By order dated November 7, 2016, the ALJ overruled the petition for reconsideration as a re-argument of the case.

          On appeal, Rex Coal argues the ALJ improperly assessed the three multiplier and failed to identify any evidence that would support a finding Huff cannot return to work safely due to his hearing loss alone.  It notes the only restriction assessed by Dr. Jones was to wear hearing protection, and Huff testified he used hearing protection when exposed to loud noises.  Thus, he was already adhering to the restriction when he performed his work.  Rex Coal stresses it was not Huff’s hearing that caused him to cease working.  Rather, he ceased working because of musculoskeletal complaints.

          KRS 342.730(1)(c)1 permits enhancement of income benefits when the ALJ determines that “due to an injury, an employee does not retain the physical capacity to return to the type of work that the employee performed at the time of the injury”.  In this claim, the ALJ concluded Huff is not physically capable of returning to his pre-injury work because the degree of his hearing loss would prevent him from working safely.  We reiterate, Rex Coal has not appealed the extent of Huff’s hearing loss, or the impairment rating assessed.  The only question on appeal is whether substantial evidence supports the ALJ’s conclusion that Huff cannot safely return to his pre-injury work due to his hearing loss. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).       

          Huff did not provide extensive testimony relating to his hearing loss claims.  At his deposition, he explained that, before the initiation of his claim, he had not had his hearing tested since 1976.  He then testified:

          Q:   Okay.  All these employers listed on your application, did you wear hearing protection at all of them?

 

A:   Yes.

 

Q:   Rex Coal, what kind of hearing protection were you using.

 

A:   I’ll have to explain here.

 

Q:   Okay.

 

          A:   Once I come off of the equipment and started repairing, I wasn’t in dead noise all the time and I didn’t wear hearing protection all the time.

 

Q:   So, you were – were you strictly a repairman at Rex Coal?

 

          A:   No, there was days I might would – if they had like a car operator off, I might would drive a car some.  Or if the miner operator was off, I might would fill in there.

 

          Q:   So, you would interchange.  There was not a period of time where you were strictly a repairman or strictly an electrician.  You would just…

 

          A:   Well, that was mainly my job, repairman; but, say, if I run the miner one day out of a year or one day out of six months or something.

 

Q:   Okay.  As a repairman were you exposed to any noise?

 

A:   Not a lot.

 

          Q:   Would you be doing the repairs when the mines were not in service, so to speak? Was there activity going on?

 

          A:   Not right at where you were at.  I mean, there would be noises away.  You wasn’t right on the noise, though.

 

Q:   Would you do the repairs underground?

 

A:   Yeah.

 

          Q:   Were you a repairman the whole time you were working for Rex Coal? That was your primary job?

 

A:   That was my primary job, yes.

 

Q:   And what sort of machinery are you repairing?

 

A:   Continuous miners, scoops, shuttle cars, belt heads, mantrips.

 

Q:   And is it your testimony that none of these engines would have been running directly on the cars you were working on or the machines you were working on?

 

A:   Sometimes you had to – when you was troubleshooting, you would like start a car.  But all these was electrical equipment, and they didn’t make a whole lot of noise.

 

Q:   When you were doing the repairman – you sort of touched on it earlier – where would the noise be coming from if you were working on these pieces of machinery?

 

A:   Well, if you was working on, say, a roof bolter and the continuous miner was close by.

 

Q:   Okay.  As a repairman would you wear hearing protection at all, any hearing things?

 

A:   If I knew I was going to be in a noisy place, I would take some.

 

Q:   What percentage of the time as a repairman would you be wearing hearing protection, if you can roughly estimate that?

 

A:   Maybe ten percent.

 

Q:   And what percentage of the time would you be acting as a repairman when you were working for Rex Coal?

 

A:   Ninety percent.

 

Q:   And the other ten percent of the time you were going where needed, going where needed in the company?

 

A:   Yes.

 

          Later during the deposition, he further testified:

Q:   Okay.  And I guess you’d never used hearing aids or anything like that prior to …

 

A:   No, I’ve not.

 

Q:   We sort of touched on it earlier, but what specifically would have caused your hearing or what do you think caused the hearing loss underground?

 

(Objection)

 

Q:   Yeah, let me – I’ll rephrase that. What machinery or do you …

 

A:   Well, the biggest part of my career I worked as a continuous miner operator, and that makes a lot of noise.  And in my earlier years when I was a miner operator, you sat in the deck of the miner and the conveyer chain running past you.  It clanks and a lot of noise.  And I wore hearing protection.

 

Q:   When you were working for Rex Coal, what was the biggest cause of noise?

 

A:   If I had to work on something that was noisy.  Sometimes you’d be working on a beltline, maybe, and the belts would be running, but you would shut down and maybe would start back, and you’d be trying to troubleshoot what was wrong with it.

 

Q:   When was the first time a doctor told you that you had hearing loss?

 

A:   They haven’t.  I went and got a hearing test.  When I was working, I noticed for the last couple of years that I – when speaking to people or people speaking to me, I’d have trouble hearing them.

 

          At the final hearing, Huff provided little additional testimony concerning his hearing loss claim:

Q:   And, we talked about the noise exposure.  What are some of the things you would – you were exposed to underground that you would describe as noisy, Mr. Huff?

 

A:   Well, when I ran the miner, it was real noisy, of course.  You’d be around the feeder.  Sometimes, maybe, if maintenance shift didn’t grease it, you would go grease the feeder and it would be around in there, and the belt line would be around in there and the tail piece will be making noise.  You’d be around noise then.

 

Q:   And, as a repairman and electrician, to properly diagnose what was wrong with a piece of equipment, did you have to be in close proximity to it while it was running to listen to it?

 

A:   At times, yeah.

                  

          Upon our review of this testimony, and the medical report of Dr. Jones, we conclude the ALJ’s application of the three multiplier is not supported by substantial evidence.  Huff established he worked near loud, noisy equipment.  He further testified that he sometimes needed to listen to the equipment in order to diagnoses a malfunction.  However, at no point did he testify that he would be unable to perform his work tasks while wearing hearing protection.  In fact, he testified that he sometimes wore hearing protection when performing repair work, and often the repairs were done on electrical equipment that did not produce loud noises.  At no point did he claim he would be unable to perform the work safely due to his hearing loss.  We also emphasize the reason Huff ultimately quit working was unrelated to his hearing loss.   

          The medical proof and Huff’s testimony clearly establish his hearing loss was caused by his work.  However, at the time of his injury, he was working as a repairman at Rex Coal.  Although claimants working in the coal mines frequently testify in workers’ compensation claims regarding the difficulty hearing protection creates in communicating with co-workers, such testimony was not elicited in this case.  After careful review of the proof - which consists solely of Huff’s testimony, and the medical proof from Dr. Jones and Beltone – we conclude there is simply no evidence upon which to find he is unable to return to his pre-injury work as a result of his hearing loss.  For these reasons, Huff is not entitled to enhancement of his permanent partial disability benefits for hearing loss.       

          Accordingly, the award of enhanced benefits pursuant to KRS 342.730(1)(c)1 contained in the October 3, 2016 Opinion, Award and Order is hereby REVERSED.  This claim is hereby REMANDED to Hon. R. Roland Case, Administrative Law Judge, for entry of an amended opinion consistent with the view expressed herein.

          ALL CONCUR.

 

 

 

 

 

 

 

COUNSEL FOR PETITIONER:

 

HON MICHAEL THOMAS KUNJOO

HON DONALD NIEHAUS

333 WEST VINE STREET

SUITE 1100

LEXINGTON, KY 40507

 

COUNSEL FOR RESPONDENT:

 

HON JOHN HUNT MORGAN

PO DRAWER 750

62 BALL PARK RD

HARLAN, KY 40831

 

ADMINISTRATIVE LAW JUDGE:

 

HON R ROLAND CASE

PREVENTION PARK

657 CHAMBERLIN AVENUE

FRANKFORT, KY 40601