AK STEEL CORPORATION v. JOHN H. NEAL; KEVIN KING, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
October 29, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001081-WC
AK STEEL CORPORATION
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-03-00264
JOHN H. NEAL; KEVIN KING,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, TACKETT, AND VANMETER, JUDGES.
VANMETER, JUDGE:
In February 2003, appellee John Neal filed a
Workers’ Compensation claim alleging hearing loss due to workrelated cumulative trauma incurred during his employment with AK
Steel Corporation (AK Steel).
After a hearing the
Administrative Law Judge (ALJ) determined Neal was barred from
receiving compensation for hearing loss that occurred before the
two years prior to his filing of the claim.
On appeal the
Workers’ Compensation Board (Board) reversed and remanded the
ALJ’s decision, finding that Neal had no knowledge of the cause
of his hearing loss, and therefore the statute of limitations
was tolled until such knowledge was obtained.
We affirm the
Board’s decision.
Neal, a resident of Wurtland, Kentucky, was born on
February 28, 1949.
Following completion of high school he
received an associate’s degree in business communications.
He
began working for AK Steel as a heavy equipment operator in
September 1967, at which time testing indicated that his hearing
was normal.
During the course of his employment with AK Steel,
Neal underwent numerous hearing tests.
Neal indicated that he
first became aware of hearing loss during an in-house hearing
test in the late 1980s.
Neal subsequently obtained hearing aids
and began to wear hearing protection on the job.
On several
occasions, AK Steel required Neal to sign a “Standard Threshold
Shift Notice”, which stated:
This is to inform you that you have a
standard threshold shift. This is a
significant loss of hearing as detected by a
comparison of today’s test results with your
original hearing test.
Also, you have been counseled [sic]
regarding the need for proper use of hearing
protection. You are advised to see an ear,
nose and throat doctor of your choice.
While Neal sought treatment with at least two ear clinics, he
testified that the first physician to inform him that he had
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work-related hearing loss was Dr. Charles Hieronymus, who saw
him in November 2002.
Dr. Hieronymus assigned him a percentage
of functional impairment. Due to his extreme loss of hearing,
Neal subsequently left the employment of AK Steel, with his last
exposure to the harmful conditions of his work place being
January 31, 2003.
Neal then filed the underlying claim.
The ALJ dismissed Neal’s claim, noting:
KRS 342.185 states that a claimant must file
his claim within two years of the date of
injury or the date of the last temporary
total disability benefit payment, whichever
last occurs. In cumulative trauma claims,
as this hearing loss claim is, the statutory
period begins to run when a claimant becomes
aware that he has a work related injury. See
Alcan Foil Products v. Huff, Ky., 2 S.W.3d
96 (1999). However, a claimant is not
required to self diagnose as to either cause
or permanency. See Hill v. Sextet Mining,
Ky., 65 S.W.3d 503 (2001). Furthermore, any
worsening of Neal’s condition in the 2 year
period prior to the expiration of the
statute of limitations is compensable. See
Clark v. Special Fund, Ky., 98 S.W.3d 486
(2000).
Finding that Neal’s testimony was not credible, insofar as he
asserted that not until November 2002 did a physician ever
inform him that his hearing loss was work-related, the ALJ
concluded the “portion of Neal’s hearing loss that occurred more
than two years before the filing of his claim is barred by the
statute of limitations.
However, any worsening of Neal’s
condition in that two-year period is compensable.
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See Clark v.
Special Fund, Ky., 98 S.W.3d 486 (2000).”
The ALJ found that
because Neal’s hearing impairment only increased by three
percent between 2001 and 2003, he was disqualified for income
benefits under KRS 342.7305(2).
However, AK Steel was held
liable for any medical expenses associated with the hearing
loss.
The ALJ denied Neal’s Petition for Reconsideration.
On
appeal the Board reversed and remanded the ALJ’s decision,
concluding that the evidence did not support the ALJ’s finding
that Neal’s knowledge of the cause of his hearing loss predated
his claim by more than two years.
The Board stated, “while AK
Steel may have submitted an extensive number of audiometric test
results and other medical and treatment records demonstrating
Neal’s progressive affliction with hearing loss in the 1980’s
and 1990’s, nothing in those records definitively characterizes
his condition as work-related.”
The Board further noted, “the
ALJ lacked the discretion to disregard the unrebutted evidence
that Dr. Hieronymus’ report of November 22, 2002, is the first
to express an unequivocal medical opinion of work-related
causation.”
Citing the cases of Alcan Foil Products v. Huff,
Ky., 2 S.W.3d 96 (1999), Hill v. Sextet Mining Corp., Ky., 65
S.W.3d 503 (2001), and Special Fund v. Clark, Ky., 998 S.W.2d
487 (1999), the Board found that Neal’s manifestation of
disability date occurred when he consulted Dr. Hieronymus, and
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that his claim was filed within the period prescribed by
statute.
This petition for review followed.
AK Steel contends that the Board erred by concluding
that the evidence did not support the ALJ’s finding that the
claim was not timely filed.
We disagree.
In the case of Hill v. Sextet Mining Corp., Ky., 65
S.W.3d 503 (2001), a miner sustained gradual work-related
injuries to his back and cervical spine.
The ALJ’s award of
income benefit payments was reversed by the Board, which found
the claimant failed to timely notify the employer “after the
disabling reality of his injury became manifest. . . .” Id. at
505.
This court affirmed in part, and vacated and remanded in
part for further findings.
The Supreme Court reversed, holding
that the claimant “was not required to give notice that he had
sustained a work-related gradual injury to his spine until he
was informed of the fact. See Alcan Foil Products v. Huff, Ky.,
2 S.W.3d 96 (1999); Special Fund v. Clark, Ky., 998 S.W.2d 487
(1999).”
65 S.W.3d at 507.
The Supreme Court noted that
although the claimant was treated for various incidents and was
even told to quit his mining job, none of his physicians
directly attributed his condition and the gradual worsening of
that condition to his job.
The court found that because
“[m]edical causation is a matter for the medical experts and,
therefore, the claimant cannot be expected to self-diagnose,” a
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claimant is responsible for providing timely notice only after
being informed of the work-relatedness of his injury.
Id. at
507.
Here, as in Hill, Neal was treated for his hearing
loss but he was never notified that such loss was caused by his
work conditions.
The applicable statute of limitations begins
to run only after a claimant both realizes the injury has
occurred and is informed that the injury is work-related.
Special Fund v. Clark, Ky., 998 S.W.2d 487 (1999).
Utilizing
the statutory time limits set forth in KRS 342.185 the record
shows that Neal filed his claim within two year of the date on
which Dr. Hieronymus informed him that the injury was workrelated; the Board correctly found that the claim was timely.
The Board’s decision is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
Christopher A. Dawson
Ashland, Kentucky
BRIEF FOR APPELLEE JOHN H.
NEAL:
Robert G. Miller, Jr.
Paintsville, Kentucky
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