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Napier v. Enterprise Mining Co.

Court of Appeals of Kentucky

March 23, 2018



          BRIEF FOR APPELLANT, HERMAN NAPIER: McKinnley Morgan London, Kentucky

          BRIEF FOR APPELLANT, ROBBIE HATFIELD: C. Phillip Wheeler, Jr. Pikeville, Kentucky

          BRIEF FOR APPELLANT, PAUL FELTNER: Timothy J. Wilson Lexington, Kentucky

          BRIEF FOR APPELLEE, ENTERPRISE MINING COMPANY: H. Brett Stonecipher Aziza H. Ashy Lexington, Kentucky

          BRIEF FOR APPELLEE, MCCOY ELKHORN COAL COMPANY: Timothy C. Feld Lexington, Kentucky

          BRIEF FOR APPELLEE, TECO/PERRY COUNTY COAL: Sarah K. McGuire Pikeville, Kentucky



          NICKELL, JUDGE.

          These three consolidated appeals arise from similar facts and procedural histories. They present a common equal protection constitutional challenge to KRS[1] 342.7305(2). The statute authorizes compensation for occupational hearing loss as provided in KRS 342.730, "except income benefits shall not be payable where the binaural[2] hearing impairment converted to impairment of the whole person results in impairment of less than eight percent (8%)" pursuant to the AMA Guides.[3]

         In the interest of judicial economy, we have consolidated the three cases for review and resolution in a single Opinion. Following careful review of the records, the briefs and the law, we hold KRS 342.7305(2) violates equal protection guarantees established in the Fourteenth Amendment to the United States Constitution and Sections 1, 2, and 3 of the Kentucky Constitution. In particular, we hold the Supreme Court of Kentucky's decision in Vision Mining, Inc. v. Gardner, 364 S.W.3d 455 (Ky. 2011), is dispositive. Therefore, we vacate and remand each case for further proceedings and entry of orders consistent with this Opinion.



         Herman Napier (Napier) filed an Application for Resolution of Hearing Loss Claim (Form 103), alleging onset of occupational hearing loss due to repetitive exposure to loud noise in the workplace.[4] His last employer, Enterprise Mining Company (Enterprise), denied the claim.

         In his deposition, Napier testified he has a high school education, with no specialized training or military experience, and has labored as an underground miner since 1988, performing various mining jobs. He was most recently employed at Enterprise, where he last worked on February 4, 2012.

         At the hearing, Napier testified he had worked around noisy machinery and heavy equipment forty to sixty hours per week throughout his twenty-four year career, but had always worn mandated ear protection. He had also worn ear protection when hunting or riding a motorcycle. Due to worsening hearing difficulty, he sought testing at a Beltone Hearing Care Center, learning for the first time he had binaural hearing loss and required hearing aids. Napier emphasized the necessity of good hearing to the individual miner and coworkers when engaging in subterranean mining operations. He explained a miner "could get covered up" if unable to hear subterranean "cracking, " and would pose a risk to himself or others if unable to hear instructions or warnings over the din of underground equipment.

         Dr. Raleigh Jones performed a University Medical Evaluation (UME), noting Napier reported worsening hearing loss dating back four to five years. Medical findings were compatible with hearing loss associated with extended workplace exposure to hazardous noise. Dr. Jones diagnosed sloping binaural high frequency sensorineural hearing loss, opining it was causally related to repetitive exposure to hazardous noise over an extended period of employment. He assigned a 4% impairment rating, recommended binaural hearing aid amplification, and restricted Napier to working with ear protection.

         Due to Dr. Jones' assignment of a 4% impairment rating, the ALJ sustained Napier's motion at the hearing to add a constitutional equal protection challenge to KRS 342.7305(2) as a contested issue. The Attorney General of Kentucky received notice of the constitutional challenge pursuant to KRS 418.075.

         In the Opinion and Order, the ALJ found Napier had sustained a work-related, noise-induced hearing loss due to many years of working as an underground coal miner. Declaring KRS 342.7305(2) unconstitutional, the ALJ awarded permanent partial disability (PPD) income benefits under KRS 342.730 based on Napier's 4% impairment rating, saying:

[b]ased upon . . . the holding of the Kentucky Supreme Court in the Vision Mining case, I make the determination KRS 342.7305(2) is unconstitutional, in that it requires plaintiffs, such as Mr. Napier, to meet a certain impairment rating threshold substantially different than the requirement in other types of injury claims and violates Mr. Napier's constitutional guarantee of due process of law, and further that the legislature's requirement of the 8% threshold has no rational basis in fact and that said requirement is discriminatory, since Mr. Napier is treated differently than injured workers who sustain a single traumatic injury or other types of cumulative traumas. The bottom line is that Mr. Napier's constitutional guarantee of due process is being violated, and that said statute is unconstitutional.

         Enterprise petitioned for reconsideration, asserting the ALJ erred in awarding PPD income benefits in contradiction of KRS 342.7305(2) because an ALJ lacks authority to determine statutory constitutionality. Upon review, the ALJ agreed and issued a revised Opinion and Order excluding any PPD income benefits.

         Napier sought review from the Workers' Compensation Board (Board). Citing Blue Diamond Coal Co. v. Cornett, 300 Ky. 647, 189 S.W.2d 963 (1945), the Board held neither it nor an ALJ was authorized to determine statutory constitutionality and affirmed the amended Opinion and Award. Napier appealed.


         Robbie Hatfield (Hatfield) filed a Form 101, alleging a July 2, 2012, work-related ear injury at McCoy-Elkhorn Coal Company, Inc. (McCoy-Elkhorn), when a piece of hot slag, or molten waste material, landed in his left ear canal while he was welding, burning and perforating his left eardrum. He also filed a Form 103, alleging occupational hearing loss due to long-term exposure to loud workplace noise, with the last exposure occurring at McCoy-Elkhorn. McCoy-Elkhorn denied both claims. The ALJ consolidated the claims.[5]

         In his deposition, Hatfield testified he was a high school graduate, had completed one year of vocational training, and was a certified welder. He had been employed since 1992 in the mining industry as an above-ground maintenance and utility worker, which required operation of welders, torches, other tools and equipment. Following his work-related ear injury, he underwent two corrective ear surgeries and several courses of cauterization treatments with no noticeable improvement. He continued to have difficulty listening to television programs, hearing telephone discussions, and distinguishing conversation around noise and crowds of people. He had missed no work due to his ear injury, and had continued working at McCoy-Elkhorn until September 2013, when he was laid off.

         At the hearing, Hatfield testified he had suffered ongoing intermittent pain and constant humming in his left ear in addition to the hearing loss. About five months after being laid off by McCoy-Elkhorn, he had found work in a similar position at another mine. Work restrictions included use of ear protection, including ear plugs, and avoiding any foreign substances entering his ear canal.

         Dr. William Parell, a board-certified otolaryngologist, examined Hatfield at the request of McCoy-Elkhorn. Medical history and records review revealed a work-related significant left tympanic membrane perforation, an audiogram evidencing conductive hearing loss, an unsuccessful tympanoplasty surgery, development and resolution of post-operative Bell's palsy, and a second audiogram evidencing "mild to profound left sensorineural hearing loss" with a conductive component. Dr. Parell recommended the tympanoplasty surgery be repeated to repair the left eardrum and eliminate any conductive component of the hearing loss. Even if successful, however, he recommended hearing aids for postoperative amplification.

         Dr. Barbara A. Eisenmenger, a clinical audiologist, performed a UME. Complaints included constant tinnitus; sporadic episodes of sharp ear pain; dizziness and loss of balance when rising from a seated position; difficulty understanding others, especially when background noise was present; and, difficulty hearing telephone conversations and television programs. She diagnosed a tympanic membrane perforation in the left ear resulting in moderate-to-profound mixed hearing loss, poor word recognition greater than would be expected for an individual of Hatfield's age, and decreased communication skills. She opined the work-related traumatic injury was the primary cause of Hatfield's hearing loss and assigned a 4% impairment rating. She recommended use of ear protection when exposed to loud noise, but cautioned against any hazardous work activities impeded by utilization of such devices. She doubted the condition was amenable to further medical or surgical intervention, but recommended hearing aids and other assistive listening devices.

         Dr. Thomas Huhn, board-certified in emergency medicine, performed an independent medical examination (IME) at the request of McCoy-Elkhorn. Complaints included "infrequent and not very intense" left ear pain, constant buzzing, decreased hearing with background noises, inability to discriminate intended noises from background noises, and occasional balance issues. Following medical records review and examination, he diagnosed "a minor direct trauma to the left ear, " or "thermal injury, " which perforated the tympanic membrane, resulting in left-sided hearing loss. Maximum medical improvement (MMI) had been reached six weeks after the second ear surgery, no further corrective ear surgery was indicated, and over-the-counter anti-inflammatory medications were recommended for any intermittent ear pain. He opined the condition was caused by the reported work-related traumatic event, but assigned no impairment rating for the tympanic membrane perforation itself. He deferred to Dr. Eisenmenger for assessment of impairment due to actual hearing loss.

         Hatfield's constitutional equal protection challenge to KRS 342.7305(2) was listed by the ALJ as a contested issue at a BRC held prior to the hearing. The Attorney General of Kentucky was provided notice of the constitutional challenge pursuant to KRS 418.075.

         In the Opinion and Order, the ALJ awarded Hatfield medical benefits under KRS 342.020(1) for the cure and relief of his occupational hearing loss, but denied PPD income benefits under KRS 342.7305(2) because he had failed to prove an impairment rating of 8% or greater. Citing Cornett, the ALJ held she lacked authority to address Hatfield's constitutional equal protection challenge. She denied Hatfield's subsequent petition for reconsideration.

         On appeal, the Board affirmed the ALJ's conclusion that Hatfield was barred by KRS 342.7305(2) from an award of PPD income benefits. Though recognizing Hatfield's constitutional challenge, the Board held neither it nor the ALJ, as administrative tribunals, possessed authority to determine the constitutionality of a legislative statute. Hatfield appealed.


         Paul Feltner (Feltner) filed both a Form 103, alleging the onset of an occupational hearing loss due to "daily and continuous exposure to noise, " and a Form 101, alleging work-related upper back, neck, and bilateral shoulder injuries arising when he tried to untangle a knot from a miner cable. TECO/Perry Co. Coal (TECO) denied both claims, which were thereafter consolidated by the ALJ.

         In his deposition, Feltner testified he is a high school graduate with no vocational or specialized training; had worked thirty-four years in the coal mining industry, most recently employed by TECO; had worked primarily as an underground bolt machine operator; and, had been constantly exposed to loud noise and the "roaring" of equipment, but had routinely worn ear protection. He denied any prior ear infections, injuries, or need for hearing aids. He had drawn temporary total disability (TTD) income benefits due to work-related back, neck, and shoulder injuries before returning to light work duties, but ultimately retired due to the severity of his permanent restrictions.

         A UME was performed by Dr. Brittney Brose, a clinical audiologist. She recorded a medical history of long-term, repetitive occupational hazardous noise exposure with progressive binaural hearing loss. Ear protection had been worn, but hearing loss had become increasingly noticeable over the most recent seven to eight years. Though Feltner self-described mild to moderate hearing loss, objective auditory testing revealed severe hearing loss in his right ear, with milder findings sloping to a profound hearing loss in his left ear. Dr. Brose testified this degree of hearing loss was greater than normally expected in a 53-year-old individual, and was consistent with long-term noise exposure. Testing also revealed a significant perceived hearing handicap, with diminished communication abilities.

         Based on medical history and examination, Dr. Brose opined Feltner's hearing loss was caused by long-term repetitive exposure to occupational hazardous noise, his condition was not amenable to further medical treatment or surgery, he required use of prescribed hearing aids and other assistive listening devices, and he qualified for a 5% impairment rating. She explained his serious to profound binaural hearing loss means he can hear speech but cannot understand conversations with clarity due to significant loss in perceiving high pitches, making it difficult to understand telephone, radio, and television communications. She emphasized the advisability of restricting Feltner from work environments exposing him to further occupational hazardous noise, explaining no ear protection device-not even custom ear plugs-would completely protect him from further traumatic ear injury and hearing loss. Even if using workplace ear protection, she recommended he be restricted from jobs incompatible with use of such sound-muffling devices due to safety concerns.

         In addressing Feltner's minimal hearing loss impairment rating, Dr. Brose testified his treatment, limitations, and occupational restrictions would have been the same regardless of whether he had qualified for a 5% or an 8% impairment rating. She opined his impairment rating inadequately evinced his substantial functional loss and occupational restrictions, which are likely to limit or preclude wide-ranging work activities and employment opportunities. Specifically, she noted hearing loss significantly limits or precludes working in underground and surface mining operations, road construction, manufacturing, and other hazardous jobs due to the necessity for communication and attentiveness to workplace dangers. She also explained job opportunities for the hearing impaired are substantially reduced because employers are reluctant to implement workplace accommodations and are hesitant to hire workers perceived to present increased jobsite risks.

         Moreover, Dr. Brose opined varying levels of hearing loss can impact individuals differently, and divergent hearing loss impairment ratings may not accurately reflect actual comparative functional difficulties and workplace impediments experienced by particular individuals. She noted persons qualifying for a low hearing loss impairment rating may actually experience equal or greater impacts on their ability to engage in normal activities of daily living and occupational restrictions than persons qualifying for higher hearing loss impairment ratings. She also stated individuals qualifying for high impairment ratings related to traumatic injuries to other organs, body parts and systems, may actually experience fewer functional effects and occupational constraints than others with low hearing loss impairment ratings. For example, she noted traumatic spinal cord injuries typically qualify for much higher impairment ratings than ear injuries producing hearing loss, but often offer a better prognosis for improvement or full recovery with less significant permanent functional losses and resulting occupational restrictions.

         Though Feltner's back, neck, and shoulder injury claims were settled, two BRC orders listed his constitutional challenge to the impairment rating threshold in KRS 342.7305(2) as a contested issue. The Attorney General of Kentucky was provided notice of the constitutional challenge pursuant to KRS 418.075. A formal hearing was waived, and Feltner's occupational hearing loss claim was submitted on the record.

         The ALJ entered an Opinion and Award finding Feltner had sustained a 5% impairment rating for hearing loss caused by longtime exposure to occupational noise, with the last exposure occurring while he was employed by TECO. Lacking authority to determine constitutional challenges, the ALJ awarded medical benefits pursuant to KRS ...

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