KYLE D. LUNSFORD V. MANALAPAN MINING COMPANY, INC, ET AL
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CORRECTED : OCTOBER 18, 2006
RENDERED : AUGUST 24, 2006
TO BE PUBLISHED
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2005-SC-0626-WC
MANALAPAN MINING COMPANY, INC.
V.
APPELLANT
APPEAL FROM COURT OF APPEALS
2005-CA-0549-WC
WORKERS' COMPENSATION NO. 04-00131
KYLE D . LUNSFORD ; HONORABLE
HOWARD E. FRASIER, JR.,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
AND
2005-SC-0628-WC
KYLE D . LUNSFORD
V.
APPELLEES
CROSS-APPELLANT
APPEAL FROM COURT OF APPEALS
2005-CA-0549-WC
WORKERS' COMPENSATION NO. 04-00131
MANALAPAN MINING COMPANY, INC.;
HONORABLE HOWARD E. FRASIER, JR.,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
CROSS-APPELLEES
OPINION OF THE COURT
REVERSING
At issue in this appeal is the application of KRS 342 .185 to a hearing loss claim
that was filed more than two years after the hazardous noise exposure ceased. An
Administrative Law Judge (ALJ) determined that a rule of discovery applied and that the
claim was timely because the worker filed it within two years after a physician informed
him that his condition was work-related . The Workers' Compensation Board (Board)
construed KRS 342.185 as barring a claim filed more than two years after the date of
last exposure and reversed . Convinced that KRS 342.185 does not operate as a
statute of repose in gradual injury claims and that a rule of discovery applies, the Court
of Appeals reversed and reinstated the award . We disagree and reverse.
The claimant testified that he was exposed to hazardous noise for 37 years while
working in underground and surface mines without hearing protection . He quit working
on February 18, 2001, due to breathing and back problems and consulted an attorney
about filing a pneumoconiosis claim . He stated that he did not pay much attention to
any hearing problem until then and that it had never interfered with his work. Dr. Guindi
was the first physician to test his hearing and inform him that his hearing loss was
caused by his work.
The claimant underwent an audiological exam on December 30, 2003. On
January 5, 2004, Dr. Guindi reported a 26% AMA impairment due to noise-induced
hearing loss . The claimant's attorney informed his employer of the injury on January
14, 2004, and filed an application for benefits on January 15, 2004. Among the
contested issues was whether the claim was barred by the statute of limitations found in
KRS 342 .185 because the claimant filed it more than two years after his last exposure
to hazardous noise.
The ALJ determined that the claimant's application was timely . Noting that the
Board and the courts had adopted a rule of discovery in hearing loss claims, the ALJ
relied on a decision in which the Board found timely a claim that was filed within two
years after a physician informed the worker that his hearing loss was work-related and
within one year after his last exposure to occupational noise. Although noting that the
individual continued to work for several months after learning the cause of his condition,
the AU was not convinced that fact was significant .
Chapter 342 imposes periods of limitations and repose for occupational diseases
and injuries . KRS 342 .316(4)(a) permits an occupational disease claim to be filed
within three years of the last injurious exposure or knowledge of the work-related
condition ; however, a claim may not be filed more than five years after the last
exposure to an occupational hazard other than radiation or asbestos or more than 20
years after the last exposure to radiation or asbestos.
Consistent with the mechanism by which repetitive exposure to hazardous noise
destroys the membranes of the inner ear, KRS 342:7305(4) characterizes hearing loss
caused by such exposure as being an "injury." See Caldwell Tanks v. Roark, 104
S.W.3d 753 (Ky. 2003). It places exclusive liability on the employer with whom the
worker was last injuriously exposed to hazardous noise. The statute of limitations for
occupational injuries is found in KRS 342 .185(1), which provides as follows:
(1) Except as provided in subsection (2) of this section, no
proceeding under this chapter for compensation for an injury
or death shall be maintained unless a notice of the accident
shall have been given to the employer as soon as
practicable after the happening thereof and unless an
application for adjustment of claim for compensation with
respect to the injury shall have been made with the office
within two (2) years after the date of the accident, or in case
of death, within two (2) years after the death, whether or not
a claim has been made by the employee himself for
compensation . The notice and the claim may be given or
made by any person claiming to be entitled to compensation
or by someone in his behalf. If payments of income benefits
have been made, the filing of an application for adjustment
of claim with the office within the period shall not be
required, but shall become requisite within two (2) years
following the suspension of payments or within two (2) years
of the date of the accident, whichever is later.
Subsection (2) provides a five-year period of limitations for a claim due to human
immunodeficiency virus exposure. Unlike KRS 342 .316, KRS 342.185 contains no
explicit period of repose .
Recognition that a traumatic injury could occur gradually from the wear and tear
of work began with Haycraft v. Corhart Refractories Co., 544 S .W .2d 222 (Ky. 1976).
The courts first considered the application of KRS 342.185 to a gradual injury claim in
Randall v. Pendland, 770 S.W .2d 687 (Ky. App. 1989). Ms. Pendland operated a
machine that required repetitive hand and finger motions. She quit working on January
14, 1983, after experiencing pain in her hands for about six months, and filed a claim on
January 7, 1985, that alleged a wear-and-tear injury. The medical evidence indicated,
in the least, that her work aggravated an arthritic condition and increased the wear on
her thumb joints. The employer asserted that the claim should have been dismissed as
untimely, but the court noted that Ms. Pendland sustained thousands of minitraumas
rather than one accidental injury from which to commence the statute of limitations . It
determined, therefore, that the date for giving notice and for clocking the statute of
limitations began when the disabling reality of the injury became manifest. The factfinder determined that occurred on January 14, 1983. Convinced that the evidence did
not compel an earlier date, the court affirmed .
In Coslow v. General Electric Co., 877 S .W.2d 611, 614-15 (Ky. 1994), the
worker sustained a latent injury due to a single traumatic event and asked the court to
adopt a discovery rule for commencing the period of limitations. The court noted,
however, that KRS 342 .185 runs the period of limitations from the date of the accident .
Rejecting the notion that an injury claim could be filed indefinitely if within two years
after discovery, the court determined that the two-year period found in KRS 342 .185
operates as both a period of limitations and a period of repose for injuries due to a
single trauma. The court acknowledged that a latent injury might not be discovered
until after the period expired. It also acknowledged that Randall v. Pendland , supra ,
adopted a discovery rule in a gradual injury case but noted that there was no alternative
to such a rule if the statute of limitations were to be given any effect.
Alcan Foil Products v. Huff, 2 S.W .3d 96 (Ky. 1999), involved claims by three
individuals who alleged a gradual hearing loss due to years of workplace noise
exposure. They filed their claims in September, 1995, and continued to work at that
time . It was found later that each knew his hearing loss was work-related more than
two years before September, 1995, and that no appreciable worsening occurred after
September, 1993. The employer asserted that the claims were barred by the date of
accident language found in KRS 342 .185, arguing that if the period of limitations for a
gradual injury did not run until the manifestation of disability, a claim for medical
benefits would be premature until the worker became occupationally disabled . The
court noted that KRS 342.185 runs the period of limitations for two years from the date
of the accident that causes an injury; therefore, gradual injury claims were problematic .
Yet, the legislature had created no special rules such as those for occupational
disease. After reviewing Randall v. Pendland, supra , the Alcan court determined that
the term "manifestation of disability" actually referred to the onset of symptoms causing
the worker to discover a gradual injury. Id ., 2 S.W.3d at 101 . Noting that the workers
knew they had a work-related hearing loss more than two years before filing their claims
and suffered no additional loss in the final two years, the court determined that KRS
-5-
342.185 barred their entire claims.
Shortly thereafter, in Special Fund v. Clark, 998 S.W .2d 487, 490 (Ky. 1999), the
court explained that if an individual continues to work after discovering the existence of
a work-related gradual injury, KRS 342 .185 bars compensation for disability attributable
to trauma incurred more than two years before a claim is filed . Mr. Clark worked until
July 27, 1994, and filed a claim on July 3, 1995 . Although he experienced disabling
symptoms by 1987 and underwent surgery, it was unclear when he learned that work
helped to cause his knee condition ; therefore, the court remanded for a finding on the
matter. Noting that Clark continued to experience minitraumas until he quit working on
July 27, 1994, and that his disability increased after 1987, the court also pointed out
that any disability due to trauma incurred within two years before he filed a claim was
compensable .
In Hill v. Sextet Mining Corp. , 65 S.W.3d 503 (Ky. 2001), the court determined
that a worker was not required to self-diagnose the cause of symptoms as being a
gradual, work-related injury as opposed to a single traumatic event. Therefore, Mr. Hill
was not required to give notice of a work-related gradual injury until he was informed by
a physician that he had sustained such an injury .
Like Alcan, supra , Caldwell Tanks v. Roark, supra , involved a hearing loss claim .
By October 31, 1995, Mr. Roark knew his condition was work-related and reported it to
his employer. He testified that he needed hearing aids and that his noise exposure was
so intense during the final 1
'/2
years of the employment that his ears bled even though
he used earplugs . He filed a claim on October 7, 2000, and quit working on January
10, 2001 . Noting that KRS 342 .0011(1) did not require AMA impairment to support a
finding of "injury," the court determined that if a harmful change resulted from trauma
incurred within two years before October 7, 2000, Mr. Roark sustained an injury and
was eligible for reasonable and necessary medical treatment. Relying on Special Fund
v. Clark, supra, and noting that Roark's AMA hearing impairment increased from 21 % to
30% between November, 1998, and December, 2000, the court remanded to the AU
for an award of income and medical benefits.
Not only these decisions but all others regarding the application of KRS 342 .185
to gradual injury claims have concerned questions of notice and/or limitations. None
concerned a claim filed more than two years after the last traumatic event. It is
undisputed that KRS 342.185(1) imposes a two-year period of limitations that begins
when a worker has knowledge of a gradual injury and its cause. At issue in the present
case is whether it also imposes a two-year period of repose .
Coslow, supra, concerned both limitations and repose in a claim for a latent
injury due to a single traumatic event . Although acknowledging that Randall v.
Pendland , supra , adopted a rule of discovery regarding notice and limitations for
gradual injuries, the Coslow court properly limited its holding that KRS 342.185 imposed
a two-year period of repose to single trauma claims. Nonetheless, the underlying policy
against adopting a rule of discovery with no accompanying statute of repose applies
equally to gradual injuries, particularly in light of KRS 342.316(4)(a) . As with
occupational diseases, symptoms that apprise a worker of a gradual injury often do not
arise until long after the traumatic events that helped to cause the condition occurred .
Yet, occupational disease claims are subject to a period of repose, after which a claim
expires regardless of whether the disease has been discovered . We conclude,
therefore that the two-year period in KRS 342.185(1) operates as both a period of
limitations and repose for gradual injuries and acknowledge that such a claim may
expire before the worker is aware of the injury.
In the present case, the last exposure to occupational noise occurred on
February 18, 2001 ; therefore, KRS 342 .185(1) gave the claimant until February 18,
2003, to discover his injury and file a timely claim. The claimant did not learn the cause
of his condition until shortly before informing his employer and filing a claim in January,
2004. At that point, his claim had expired and should have been dismissed.
The decision of the Court of Appeals is reversed .
McAnulty, Minton, Roach, and Wintersheimer, JJ., concur. Scott, J ., dissents by
separate opinion in which Lambert, C.J ., and Graves, J ., join.
COUNSEL FOR APPELLANT/CROSS-APPELLEE :
W. Barry Lewis
Lewis and Lewis Law Offices
151 East Main Street, Suite 100
P.O. Box 800
Hazard, KY 41702-0800
COUNSEL FOR APPELLEE/CROSS-APPELLANT,
KYLE D. LUNSFORD :
Sidney B. Douglas
117 South Second Street
P.O. Drawer 839
Harlan, KY 40831
CORRECTED: OCTOBER 18, 2006
RENDERED : AUGUST 24, 2006
NOT TO BE PUBLISHED
,*u~x~em~ faa~xrf of ~~.tfur.~~rr
2005-SC-0626-WC
MANALAPAN MINING COMPANY, INC.
V.
APPELLANT
APPEAL FROM COURT OF APPEALS
2005-CA-0549-WC
WORKERS' COMPENSATION NO. 04-00131
KYLE D. LUNSFORD ; HONORABLE
HOWARD E. FRASIER, JR ., ALJ AND
WORKERS' COMPENSATION BOARD
APPELLEES
2005-SC-0628-WC
KYLE D. LUNSFORD
V.
CROSS-APPELLANT
APPEAL FROM COURT OF APPEALS
2005-CA-0549-WC
WORKERS' COMPENSATION NO . 04-00131
MANALAPAN MINING COMPANY, INC . ;
HONORABLE HOWARD E. FRASIER, JR.,
ADMINISTRATIVE LAW JUDGE ; AND
WORKERS' COMPENSATION BOARD
CROSS-APPELLEES
DISSENTING OPINION BY JUSTICE SCOTT
In Alcan Foil Products v. Huff, 2 S .W .3d 96 (Ky. 1999), and subsequent cases,
this court has viewed a hearing loss due to hazardous noise exposure to be a gradual
injury for which a rule of discovery triggers the notice and limitations requirements.
KRS 342 .185 contains a two-year statute of limitations for an injury but makes no
reference whatsoever to a two-year period of repose . Nonetheless, the majority has
determined that Kyle Lunsford's hearing loss claim must be dismissed because it was
filed more than two years after his last exposure to hazardous noise. I dissent.
Lunsford received 37 years' exposure to hazardous noise while working in the
mining industry . His last exposure occurred on February 18, 2001 . He testified that Dr.
Guindi was the first physician to test his hearing . On or about January 5, 2004, Dr.
Guindi informed Lunsford that audiological tests revealed a noise-induced hearing loss
that was due to his work and assigned a 26% AMA impairment. This is the first time he
had received information that his hearing loss was work related. Lunsford's attorney
then informed his employer on January 14, 2004, and filed an application for benefits
on January 15, 2004. The employer asserted that the claim was barred by the statute
of limitations found in KRS 342.185 because Lunsford filed it more than two years after
his exposure ceased.
KRS 342.7305(4) considers a hearing loss due to noise exposure to be an
"injury ." See Caldwell Tanks v. Roark, 104 S.W.3d 753 (Ky. 2003). KRS 342.185(1)
contains the statute of limitations for injuries. It states as follows :
(1) Except as provided in subsection (2) of this section, no
proceeding under this chapter for compensation for an injury or
death shall be maintained unless a notice of the accident shall
have been given to the employer as soon as practicable after the
happening thereof and unless an application for adjustment of
claim for compensation with respect to the injury shall have been
made with the department within two (2) years after the date of the
accident, or in case of death, within two (2) years after the death,
whether or not a claim has been made by the employee himself for
compensation . The notice and the claim may be given or made by
any person claiming to be entitled to compensation or by someone
in his behalf . If payments of income benefits have been made, the
filing of an application for adjustment of claim with the department
within the period shall not be required, but shall become requisite
within two (2) years following the suspension of payments or within
two (2) years of the date of the accident, whichever is later.
In Alcan Foil Products v. Huff, supra, this court reaffirmed the principle of Randall
v. Pendland, 770 S.W.3d 687 (Ky. App. 1989), that a rule of discovery triggers the
notice and limitations requirements in gradual injury claims . Moreover, in Hill v. Sextet
Mining Corp., 65 S.W .3d 503 (Ky. 2001); Brown-Forman Corp. v. Upchurch, 127
S .W.3d 615 (Ky. 2004); and American Printing House for the Blind v. Brown, 142
S.W.3d 145 (Ky. 2004), it reaffirmed that principle and also determined that a worker is
not required to self-diagnose the cause of a disabling condition . When determining in
Coslow v. General Electric Co., 877 S.W.2d 611, 614-15 (Ky. 1994), that the two-year
period found in KRS 342 .185 operates as a statue of repose as well as a statute of
limitations, the court explicitly limited its holding to injuries that resulted from a single
traumatic event .
Although KRS 342.316(4)(a) contains a period of repose for occupational
diseases, KRS 342.185 clearly does not . Gradual injuries result from multiple traumatic
incidents; therefore Coslow v. General Electric Co., supra , is inapplicable . For this
court to read a period of repose into KRS 342 .185 with regard to gradual injuries is
unwarranted and contrary to the rule of discovery . Therefore, the Court of Appeals'
decision should be affirmed .
Lambert, C .J., and Graves, J., join this dissent .
uyrrmr Courf of ~irufurkV
2005-SC-0626-WC
MANALAPAN MINING COMPANY, INC.
V.
'
APPELLANT
APPEAL FROM COURT OF APPEALS
2005-CA-0549-WC
WORKERS' COMPENSATION NO . 04-00131
KYLE D. LUNSFORD ; HONORABLE
HOWARD E . FRASIER, JR.,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
AND
APPELLEES
2005-SC-0628-WC
KYLE D . LUNSFORD
CROSS-APPELLANT
APPEAL FROM COURT OF APPEALS
2005-CA-0549-WC
WORKERS' COMPENSATION NO . 04-00131
V.
MANALAPAN MINING COMPANY, INC . ;
HONORABLE HOWARD E . FRASIER, JR.,
ADMINISTRATIVE LAW JUDGE ; AND
WORKERS' COMPENSATION BOARD
CROSS-APPELLEES
ORDER OF CORRECTION
The Opinion Of The Court and the Dissenting Opinion rendered August 24, 2006,
are hereby corrected by substitution of the attached page 1 in lieu of the page 1 of the
original opinion and by substitution of the attached page 1 in lieu of the page 1 of the
original dissenting opinion. Said modifications do not affect the holding of the original
Opinion of the Court .
ENTERED : October 18, 2006
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