CALDWELL TANKS V EDDIE ROARK ; HON . J . KEVIN KING, ADMINISTRATIVE LAW JUDGE ; AND WORKERS' COMPENSATION BOARD
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2002-SC-0214-WC
CALDWELL TANKS
V
APPEAL FROM COURT OF APPEALS
2001-CA-2199-WC
COMPENSATION BOARD NO . 00-1275
WORKERS'
EDDIE ROARK; HON . J . KEVIN KING,
ADMINISTRATIVE LAW JUDGE ; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION OF THE COURT
AFFIRMING
Convinced that he lacked the medical expertise to translate hearing impairments
into AMA impairments, an Administrative Law Judge (ALJ) determined that a noiseinduced hearing loss was due to cumulative trauma and that because the claimant
failed to prove an impairment that was attributable to the two years before the claim
was filed, the entire claim was barred by limitations . Special Fund v. Clark, Ky., 998
S.W.2d 487 (1999) . Although a partially dissenting opinion indicated that the claim
should be remanded for further analysis under Special Fund v. Clark, the Workers'
Compensation Board (Board) affirmed, noting that the claimant's sole argument was
that his condition was due to an occupational disease . The Court of Appeals
determined, however, that compelling evidence established that at least part of the
claim was timely under Special Fund v. Clark and reversed on that basis . We affirm .
The claimant was born in 1946, completed the ninth grade, and later earned a
GED. In 1987, the defendant-employer hired him to weld steel water tanks . The
company required a pre-employment physical and annual hearing tests thereafter .
Operating near the welding area were noisy machines such as air impact chisels, air
and electric grinders, and an air blaster. Although the employer provided hearing
protection, he wore it only about 80% of the time so that he could hear the nearby
cranes and forklifts that were hazardous in their own right. The claimant was informed
that he had developed a severe hearing loss in 1993 but first noticed problems, himself,
in 1995.
He testified that the noise exposure was so intense during the last 1 '/z years
that, despite wearing earplugs, his ears bled .
On October 31, 1995, the employer completed a Form SF-1, noting that the
claimant reported a noise-induced hearing loss. A November 29, 1995, medical report
from Dr. Cohen indicated that the claimant was encouraged to consider hearing aids at
that time . The claimant testified that in both 1997 and 2000 he asked the company for
help in purchasing them and that although he was told that they would check into it, he
never received a response. Thus, in March, 1998, he purchased them himself. He
indicated that he had never filed a worker's compensation claim before and had
requested a form from the employer on several occasions, without success. Eventually,
he contacted the Department of Workers' Claims (Department) and was advised to
consult an attorney . He did so and filed this claim on October 7, 2000, while he was still
working .
The Department scheduled a medical evaluation for December 5, 2000, at which
time Dr . Windmill advised the claimant of his profound hearing loss and warned him of
the risks of continued noise exposure. After informing his employer, he was offered an
alternative job but considered it to be as noisy as his previous work. Thus, frightened
by the prospect of becoming deaf and concerned that using adequate hearing
protection would compromise his safety, he quit working on January 10, 2001 .
The employer's safety officer testified that noise levels in the plant complied with
OSHA regulations . The medical evidence consisted solely of annual hearing exam
reports and Dr. Windmill's testimony concerning the December 5, 2000, evaluation . He
received a history that included : exposure to loud noises at work for 8 to 10 hours per
day, for 10 of the past 13 years ; the onset of difficulty hearing in 1995; a rapid
deterioration thereafter ; and the use of hearing aids for the past three years .
Dr. Windmill restricted the claimant to using hearing protection when exposed to loud
noises and indicated that further damage could result in complete deafness. When
deposed, Dr. Windmill described the mechanism by which a noise-induced hearing loss
occurs, indicating that the membranes of the inner ear react to the vibrations caused by
loud noise much like a flag being whipped about in heavy wind and destroyed . He
explained that hearing loss progresses naturally, with age, but does so more rapidly in
an individual who has a history of exposure to loud noises . In his opinion, the
claimant's hearing loss was work-related .
The pre-employment audiogram from March, 1987, revealed a severe highfrequency hearing loss . Subsequent reports revealed a progressive decline over the
next decade . By November, 1997, there was a moderately severe loss at speech
frequencies and a profound loss at high frequencies . The most recent reports,
including Dr. Windmill's, are summarized as follows :
Impairment-left ear Impairment-right ear
November, 1998
July, 2000
December, 2000*
65 .6%
71 .3%
93.8%
60 .0%
71 .3%
84.4%
Combined
60 .9%
71 .3%
85.9%
*This report was part of Dr. Windmill's evaluation. He equated the 85 .9%
binaural hearing impairment to a 30% whole-body impairment.
Among the contested issues were whether the claimant filed his claim within the
applicable statute of limitations and whether there was a pre-existing active disability .
The claimant maintained that his hearing loss was due to an occupational disease and
was subject to a three-year period of limitations ; thus, the entire claim was timely . He
also raised an alternative argument that even if the condition were due to a gradual
injury, at least part of the claim was compensable under Special Fund v. Clark, supra .
After determining that the hearing loss was due to a work-related gradual injury
that was subject to a two-year period of limitations, the ALJ determined that the
claimant clearly knew his condition was work-related by October 31, 1995, when he
reported it to the employer. Thus, the period of limitations began to run at that point.
The ALJ recognized that the "raw numbers" changed from 1997 through 2000, but
concluded that medical expertise was required to translate the data into a percentage of
impairment. Noting the absence of medical testimony that an AMA impairment was
attributable to the two-year period before the claim was filed, the ALJ determined that
the claimant failed to show any specific increase in impairment or disability during the
period and dismissed the entire claim.
The claimant's appeal to the Board maintained only that his condition was an
occupational disease and that his claim was timely. Likewise, when appealing to the
Court of Appeals, his sole argument was that an occupational hearing loss comes
within the definition of an occupational disease and that because his claim was filed
within three years of his last noise exposure, it was timely. Although deeming the
argument to be meritless, the Court noted that the evidence "overwhelmingly"
demonstrated an increased hearing loss during the period from two years before the
claim was filed and January, 2001, when the claimant quit working . Concluding that the
ALJ erred by dismissing the claim, the Court reversed and remanded .
This appeal by the employer asserts that the claimant failed to preserve an
appellate argument that disability from trauma incurred within two years before the
claim was filed was compensable . Furthermore, it points to the lack of medical
testimony that the claimant sustained at least an 8% AMA impairment during the
relevant two-year period . KRS 342.7305(2) . Finally, it asserts that disability from
trauma incurred after the filing date is properly the subject of a separate claim and that
such a claim would presently be barred by limitations .
The claimant points out that he raised the applicability of Special Fund v. Clark,
supra , before the ALJ and argues that the issue was adequately preserved on appeal
by his argument that the claim was erroneously dismissed on the basis of limitations.
Asserting that there clearly was evidence that his condition worsened in the two years
before his claim was filed, he maintains that the Court of Appeals was authorized to
remand for further consideration of his entitlement to income and medical benefits in
order to avert a manifest injustice . Pittsburg & Midway Coal Mining Co, v. Rushing, Ky.,
456 S.W.2d 816 (1969) . Although he did not cross-appeal, he continues to argue that
the claim was subject to KRS 342 .316 rather than KRS 342.185 .
This claim was filed on October 7, 2000. Therefore, it was timely with regard to
the effects of trauma incurred after October 7, 1998. Special Fund v. Clark, supra . The
employer maintains that a separate claim was required for any hearing loss that was
due to trauma incurred between October 7, 2000, and the claimant's last day of work on
January 10, 2001 . We note, however, that the claimant quit working shortly after his
claim was filed but before it was considered . Furthermore, the most recent evidence as
well as the evidence obtained closest in time to the date the claim was filed was
Dr. Windmill's exam of December 5, 2000, which was scheduled by the Department
pursuant to KRS 342 .7305(3) . Under those circumstances, we are not persuaded that
a subsequent claim was required .
Although KRS 342 .0011(1) requires objective medical findings as evidence of a
harmful change, nothing requires an AMA impairment for a finding of an "injury" and an
award of medical benefits . Therefore, if a "harmful change" resulted from trauma
incurred after October 7, 1998, the claimant sustained an injury and was eligible for
medical benefits . Although it is open to debate whether KRS 342.7305(2) requires an
additional 8% impairment in a Special Fund v. Clark, supra , situation, as the employer
maintains, it is undisputed that proof the claimant sustained at least an 8% AMA
impairment from trauma incurred after October 7, 1998, would entitle him to income
benefits as well .
The ALJ noted that the claimant's "raw numbers" (hearing impairments) changed
from 1997 through 2000 but thought that he lacked the authority and expertise to
determine the significance of the numbers . For that reason, the ALJ concluded that the
claimant failed to prove he sustained an impairment or disability during the relevant twoyear period . Furthermore, the ALJ failed to determine whether the relevant trauma
caused a harmful change and dismissed the entire claim . A review of the AMA's
Guides to the Evaluation of Permanent Impairment (Guides) reveals, however, that the
evidence compelled a favorable decision on both counts.
Chapter 9 of the 4th edition of the Guides contains a table on page 228 that
converts a binaural hearing impairment into an AMA whole-body impairment. The table
is found in Chapter 11 of the 5th edition on page 250. Although medical expertise is
required to perform audiometric testing, it is apparent that no medical expertise is
required to read this conversion table. For that reason, we are of the opinion that when
faced with unrefuted evidence of increased hearing impairment in the relevant period,
the ALJ was both authorized and required to consult the appropriate edition of the
Guides and to convert the 1998 hearing impairment into an AMA whole-body
impairment. Furthermore, even if the AMA impairment did not increase in the two-year
period, an increased hearing impairment in that period would have established that a
harmful change occurred and warranted an award of medical benefits .
The evidence indicates that the claimant's binaural impairment in November,
1998 was 60.9%, which converts to an AMA impairment of 21 % . When examined by
Dr. Windmill in December, 2000, the binaural impairment was 85 .9%, which, as he
testified, converts to a 30% AMA impairment . It is apparent, therefore, that the claimant
sustained a 9% AMA impairment between the two dates using either edition of the
Guides . Under those circumstances, he was entitled to medical benefits and to an
income benefit based upon a 9% AMA impairment . We conclude, therefore, that the
ALJ's decision to dismiss the claim in its entirety was contrary to the evidence and the
applicable law.
The basis for the claimant's appeal was that his claim was timely under KRS
342 .316 . Yet, although he abandoned the Special Fund v . Clark, supra, argument on
appeal, he did ask the ALJ to consider it. Furthermore, the ALJ failed to analyze the
evidence adequately under the decision, and the evidence compelled an award of both
income and medical benefits . We are persuaded, therefore, that the error was subject
to review on appeal in order to avert a manifest injustice . See Carrs Fork Corp. v.
Kodak Mining Co. , Ky., 809 S .W.2d 699 (1991). For that reason, we conclude that the
Court of Appeals did not err in reversing the Board after determining that the ALJ erred
as a matter of law by dismissing the entire claim as being time-barred .
The decision of the Court of Appeals is hereby affirmed, and the claim is
remanded to the ALJ for further proceedings and the entry of an award .
All concur.
COUNSEL FOR APPELLANT :
James Gordon Fogle
Ferreri & Fogle
203 Speed Bldg .
333 Guthrie Green
Louisville, KY 40202
COUNSEL FOR APPELLEE :
Grant S. Roark
1009 S. Fourth Street
Louisville, KY 40203
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