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