CLINTWOOD ELKHORN MINING COMPANY COMPENSATION VS. ANDERSON (CHESTER E.), ET AL.
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RENDERED: OCTOBER 3, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000880-WC
CLINTWOOD ELKHORN MINING COMPANY
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NOS. WC-05-66207, WC-06-00632 & WC-06-01062
CHESTER E. ANDERSON;
HON. J. LANDON OVERFIELD,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, KELLER, AND NICKELL, JUDGES.
KELLER, JUDGE: Chester E. Anderson (Anderson) alleged that he suffered a
back injury, a psychological injury, and hearing loss as a result of his work for
Clintwood Elkhorn Mining Company (Clintwood). The Administrative Law Judge
(the ALJ) dismissed Anderson’s claims for permanent disability benefits related to
his back and psychological conditions, finding that Anderson failed to prove that
he had suffered any permanent work-related injuries as defined by Kentucky
Revised Statute (KRS) 342.0011(1). The ALJ also dismissed Anderson’s hearing
loss claim, finding that Anderson failed to provide due and timely notice to
Clintwood of that claim.
A divided Workers’ Compensation Board (the Board) affirmed the
ALJ’s findings regarding Anderson’s alleged back and psychological injuries, but
reversed the ALJ with regard to Anderson’s hearing loss. In doing so, the Board
found that Anderson notified Clintwood of his hearing loss as soon as he was
advised by a physician that his condition was work-related. It is from the Board’s
opinion that Clintwood appeals.
In its appeal, Clintwood argues that, despite having no confirming
diagnosis by a physician, Anderson had a duty to provide notice of his hearing loss
as soon as he realized it was work-related. Anderson argues that the Board
correctly applied the facts to the law regarding notice. Because notice as to
Anderson’s hearing loss claim is the only issue before us, we will limit our review
of the facts and law to that issue. Based on that review, we affirm.
FACTS
Anderson is currently 62 years of age. He has a sixth-grade education
and has significant difficulty reading. Anderson began working for Clintwood and
its predecessor company in 1972, working primarily as an equipment operator. He
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last worked on November 5, 2005, and was exposed to loud noise in all of his jobs
at Clintwood and its predecessor.
On August 15, 2006, Anderson filed an Application for Adjustment of
Hearing Loss Claim. It is undisputed that Anderson filed his claim within three
weeks of receiving a report from a physician verifying that he had a work-related
hearing loss. Anderson attached to his claim a report from Dr. Hieronymus. In his
report, Dr. Hieronymus made a diagnosis of noise-related high frequency hearing
loss and assigned Anderson an 11% impairment rating.
Pursuant to KRS 342.315, the Office of Workers’ Claims referred
Anderson to Dr. Jones for an evaluation. In his report, Dr. Jones noted that
Anderson reported a twenty-year history of gradual hearing loss and tinnitus.
Following his examination, Dr. Jones made a diagnosis of bilateral sensorineural
hearing loss that he attributed to occupational noise exposure. He assigned
Anderson a 15% impairment rating based on that hearing loss.
The only other evidence in the record regarding Anderson’s hearing
loss is his testimony. In his deposition, Anderson testified as follows:
Q. Okay. Now have you seen anyone for your
hearing as far as when did you first find out that you had
any hearing loss?
A. I’ve knowed [sic] it for years, you know, I
can’t hear good.
Q. Now did you have any idea why you couldn’t
hear well?
A. I worked around heavy equipment so much.
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Q. And who confirmed that you have hearing
loss?
A. Well, Trivette. I’ve had him clean them and
tell him I couldn’t hear good, you know, and stuff.
Q. Have you seen anyone other than Dr. Trivette
for your hearing?
A. Yeah, I went to one down in Prestonsburg
there.
Q. Dr. Hieronymus?
A. I guess that was his name
...
Q. As far as your hearing loss, have you provided
your employer with any notice of that?
Mr. Hunt: We just got the report. We just got the
report on July 28th of ’06. I’m in the process of mailing
out the report and the application, or the notice.
At the hearing, Anderson testified as follows:
Q. Prior to going to Dr. Hieronymus, had any
doctor ever told you that you had a hearing loss problem
that was caused by your work?
A. No.
Q. And, you had worked, I believe, forty-three
years in and around the coal mining industry. Is that
correct?
A. Yes.
Q. And, during all of that forty-three years, would
you have been exposed to loud noise?
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A. Yes
...
Q. Okay. When you were asked, in your
deposition of August 4th, 2006, when did you first find
out that you had any hearing loss, you said, “I’ve knowed
[sic] it for years”. Is that correct?
A. Well, I worked around equipment, you know,
and so much noise, I figured I’d have it.
Q. And, that’s why you figured you couldn’t hear
very well, is because of working around the equipment?
A. Yes.
Q. Okay. And, when asked who confirmed that
you had hearing loss, you answered Dr. Trivet [sic]. Am
I saying that correct? Trivet [sic]? Is that correct? Is he
the first one that – that thought you had hearing loss or
told you that you had hearing loss?
A. I guess. I’d say.
Q. Did he think it was from your job as well?
A. He didn’t really say, you know. He just
cleaned them out and stuff for me
...
Q. When you went to Dr. Trivet [sic] for your
hearing, your ears, okay, what would he do for you?
A. He’d clean them out for me.
Q. What – when you say clean them out, what was
he trying to clean out?
A. The coal dust and the wax.
Q. And, was [sic] your ears stopping up?
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A. Yes.
Q. Did Dr. Trivet [sic] ever perform a hearing test
on you like Dr. Hieronymus did, or like Dr. Jones did
down at U.K.?
A. No.
In his Opinion, the ALJ summarized Anderson’s deposition testimony
as follows:
Plaintiff was asked if he had seen anyone for his hearing
problems and specifically asked when he first found out
that he had a hearing loss. His answer was “I’ve known
for years, you know, I can’t hear good.” (Plaintiff’s
depo., p. 20) He was then asked if he had any idea why
he did not hear well and he responded “I worked around
heavy equipment so much.” (Id.) He was asked who
confirmed that he had hearing loss and he responded
“Well, Trivette”. (Id.)
The ALJ summarized Anderson’s hearing testimony as follows:
On direct examination he testified that, prior to
seeing Dr. Hieronymus, no doctor had ever told him that
he had hearing loss which was caused by work. He was
exposed to loud noise at work for 43 years. He noted that
his counsel had informed Defendant Employer of his
hearing loss claim in two letters, one dated July 29, 2006
and the other August 4, 2006.
On cross-examination . . . [h]e conceded that he
had known for years that he had hearing loss because he
worked around equipment in the coal mines. He knew
that that was why he had hearing loss and that had been
confirmed by Dr. Trivette.
Based on the preceding summary, the ALJ found as follows:
Defendant Employer has denied notice of
Plaintiff’s hearing loss claim. Plaintiff’s own testimony
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indicates that he did not give them due and timely notice
of his hearing loss claim. Plaintiff testified that he had
known “for years” that he had hearing loss and that his
hearing loss was caused by his exposure to noise in the
workplace. More importantly, he testified that Dr.
Trivette had confirmed that his hearing loss was work
related.
...
Plaintiff has failed to sustain the burden of proving
to the satisfaction of the trier [of] fact that he gave due
and timely notice of his occupational hearing loss. This
finding is based on Plaintiff’s admissions that he has
known for years that he had occupational hearing loss
and gave no notice of that fact until July of 2006.
Anderson appealed the ALJ’s opinion to the Board arguing, in
pertinent part, that he had given due and timely notice of his hearing loss to
Clintwood. After summarizing the evidence, the majority of the Board stated that:
the ALJ was convinced and specifically found that
Anderson had known about the condition for years and
his family physician, Dr. Trivette, confirmed the hearing
loss was work-related. We believe this finding is not
supported by the evidence, nor does the evidence provide
a basis to reasonably infer that Dr. Trivette either
diagnosed work-related hearing loss or informed
Anderson of this condition.
After citing Anderson’s deposition testimony, the Board found that
[t]his testimony does not, as found by the ALJ, establish
that Dr. Trivette told Anderson his hearing loss was
work-related. At the final hearing, Anderson testified
that the first physician to inform him his hearing loss was
work-related was Dr. Hieronymus, who evaluated
Anderson on July 24, 2006. Furthermore, when Dr.
Trivette was deposed, he was never asked about
Anderson’s loss of hearing. Though it might have been
reasonable to conclude Dr. Trivette and Anderson
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discussed this condition, Dr. Trivette’s medical records
are silent as to complaints of hearing loss in general, and
do not contain any diagnosis of hearing loss, workrelated or otherwise.
In Hill v. Sextet Mining Corp., 65 S.W.3d 503
(Ky. 2001), the Kentucky Supreme Court explained that
causation is a medical question and must be proved by
expert medical testimony. An injured worker is neither
required nor expected to self diagnose the cause of a
harmful change as being the result of gradual injury or
repetitive trauma experienced at work as a prelude of the
obligations required by KRS 342.185. The fact that
Anderson believed his hearing loss was caused by his
exposure to noise at work does not qualify as expert
medical testimony. It was not until late July 2006 that
Dr. Hieronymus diagnosed work-related hearing loss and
so informed Anderson. Following this July 2006 medical
report, written notice to Elkhorn Mining was almost
immediate, rendering Anderson’s claim for gradual
injury timely. Compare Brown Forman Corp. v.
Upchurch, 127 S.W.3d 615 (Ky. 2004); see also Mrs.
Smith’s Bakeries v. Robinson, 2003-SC-1030-WC
(rendered September 23, 2004 and designated not to be
published) (holding that workers are not required to self
diagnose the cause of their injuries or to draw inferences
of causation from an ambiguous diagnosis.) The ALJ’s
finding that Dr. Trivette informed Anderson his hearing
loss was work-related is an erroneous finding
unsupported by the evidence.
The Board then reversed and remanded this matter to the ALJ for a decision on the
merits of Anderson’s hearing loss claim.
In its brief, Clintwood cited extensively to the opinion of dissenting
Board Member Stivers. In his opinion, Board Member Stivers agreed with the
majority’s opinion that Anderson testified that no physician had advised him his
hearing loss was work-related before Dr. Hieronymus did. Furthermore, Board
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Member Stivers agreed with the majority that Hill v. Sextet stands for the
proposition that an employee who suffers a repetitive trauma injury need not selfdiagnose. However, Board Member Stivers found that this case differs from Hill
v. Sextet because Anderson knew his hearing loss was work-related for a number
of years before he reported it. For the reasons set forth below, we agree with the
majority of the Board and affirm.
STANDARD OF REVIEW
When reviewing one of the Board's decisions, this Court will only
reverse the Board when it has overlooked or misconstrued controlling law or so
flagrantly erred in evaluating the evidence that it has caused gross injustice.
Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). In order to
review the Board's decision, we must review the ALJ's decision because the ALJ,
as fact finder, has the sole authority to judge the weight, credibility, substance and
inferences to be drawn from the evidence. Paramount Foods, Inc. v. Burkhardt,
695 S.W.2d 418, 419 (Ky. 1985). While we defer to the ALJ on such issues, when
we are presented with a question of law, our review is de novo. Carroll v.
Meredith, 59 S.W.3d 484, 489 (Ky. App. 2001); see also A & A Mechanical, Inc.
v. Thermal Equipment Sales, Inc., 998 S.W.2d 505, 509 (Ky. App. 1999); Aubrey
v. Office of Attorney General, 994 S.W.2d 516, 518-19 (Ky. App. 1998); and
Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky. App. 1998).
ANALYSIS
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Clintwood argues that the ALJ correctly determined that Anderson did
not provide due and timely notice of his hearing loss claim. KRS 342.185 provides
that an injured employee must give notice of “the accident . . . as soon as
practicable after the happening thereof. . . .” Because Anderson’s hearing loss
appears to be the result of repetitive trauma rather than as the result of a single
incident, we must determine when he became obligated to notify Clintwood of his
condition. Clintwood argues that Anderson’s obligation to give notice arose as
soon as he realized that his hearing loss was related to work. Anderson argues that
his obligation to give notice did not arise until Dr. Hieronymus advised him of the
work-relatedness of his hearing loss.
It is clear from the facts that Anderson knew that he had a workrelated hearing loss for a number of years before he reported it to Clintwood.
Although Clintwood has argued that Dr. Trivette told Anderson that his hearing
loss was work-related, the evidence does not support that position. Anderson
testified that Dr. Trivette confirmed that he had a hearing loss; however, he
specifically stated that Dr. Trivette did not tell him that his hearing loss was workrelated. Therefore, the question on appeal is whether an injured worker’s
knowledge that he has suffered work-related hearing loss, absent affirmation by a
physician, is sufficient to trigger his obligation to notify his employer of that
condition.
As noted by the Board,
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[m]edical causation is a matter for the medical experts
and, therefore, the claimant cannot be expected to have
self-diagnosed the cause of the harmful change . . . as
being a gradual injury versus a specific traumatic event.
He was not required to give notice that he had sustained a
work-related gradual injury . . . until he was informed of
that 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).
Hill v. Sextet Mining Corp., 65 S.W.3d 503, 507 (Ky. 2001).
Clintwood and Board Member Stivers argue that this case is
distinguishable from Hill v. Sextet Mining because Anderson testified that he knew
his hearing loss was work-related. We disagree. As the Supreme Court of
Kentucky noted, Hill “was aware of symptoms in his cervical spine and associated
the periodic flare-up of symptoms with his work long before” he was advised that
he had suffered cumulative trauma injuries. Furthermore, Hill “sought medical
treatment after some specific incidents of cervical trauma,” and was advised by his
physicians “to quit working in the mines” and “that the work was too stressful.”
Id. at 507. Based on these facts, Hill had at least as much knowledge as Anderson
that his condition was related to work. Therefore, rather than being
distinguishable, Hill is on point with this claim.
Additionally, we note the Supreme Court’s Opinion in American
Printing House for the Blind v. Brown, 142 S.W.3d 145 (Ky. 2004). While
working for American Printing House for the Blind, Brown began to experience
symptoms of carpal tunnel syndrome. Because she had previously suffered from
that condition, she recognized the significance of her symptoms and reported her
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injury to her employer prior to receiving a definitive diagnosis from a physician.
With regard to the duty to give notice, the Supreme Court held that nothing in the
law prohibits a claimant from reporting an injury before she receives a definitive
diagnosis. However, she is not required to do so until she receives that diagnosis.
Id. at 148-49.
Anderson, like Brown, could have notified his employer of his hearing
loss claim prior to receiving Dr. Hieronymus’s report. However, like Brown, he
was not required to do so.
CONCLUSION
Based on the above, we hold that Anderson’s belief that his hearing
loss was work-related was not sufficient to trigger the notice requirement of KRS
342.185. Pursuant to Hill v. Sextet and American Printing House for the Blind v.
Brown, Anderson’s obligation to provide notice under KRS 342.185 did not arise
until he received a diagnosis consistent with his belief from Dr. Hieronymus.
Therefore, we affirm the Board.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jeffrey D. Damron
Pikeville, Kentucky
John Earl Hunt
Stanville, Kentucky
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