PETITION FOR REVIEW OF A DECISION OF THE WORKERS'
COMPENSATION BOARD ACTION NOS. WC-15-00649 AND WC-15-00650
FOR APPELLANT: David D. Black
FOR APPELLEE, JIMMY HENSLEY: McKinnley Morgan
BEFORE: COMBS, DIXON, AND NICKELL, JUDGES.
D&L Mining Company, LLC, ("D&L") appeals
from a Workers' Compensation Board ("Board")
decision affirming the opinion, order and award of the
Administrative Law Judge ("ALJ") finding Jimmy
Hensley ("Hensley") suffered a 17% whole person
impairment rating resulting in an award of permanent partial
disability (PPD) benefits for hearing loss and was entitled
to the three times multiplier. D&L asserts the award was
improper because Hensley's hearing loss was a
pre-existing active condition which did not worsen during the
less than five weeks he operated a front-end loader and
bulldozer for D&L. Additionally, D&L claims the
hearing loss did not prevent Hensley from working, and he was
therefore not entitled to the three multiplier. Finding no
error, we affirm.
was born May 24, 1960, and is now fifty-seven years old. He
is a high school graduate who spent his entire
thirty-two-year work career as a heavy equipment operator in
various industries-primarily construction and coal mining.
Throughout his work history, Hensley was exposed to
repetitive hazardous noise and experienced hearing loss.
2013, prior to his employment with D&L, Hensley underwent
an audiogram in anticipation of filing a hearing loss
workers' compensation claim against a former employer.
The medical report, dated December 5, 2013, noted Hensley has
been a coal miner for thirty years, indicated a diagnosis of
moderate to severe binaural sensorineural hearing loss, and
recommended hearing aids. A copy of the 2013 hearing test was
filed by D&L. However, Hensley never saw the results of
the audiogram test according to his unrebutted hearing and
deposition testimony. Hensley worked for D&L from
November to December of 2014,  but did not pursue a hearing loss
claim until D&L went out of business. Hensley's last
day of work at D&L was December 18, 2014.
filed an Application for Resolution of Injury Claim (Form
101), alleging on December 18, 2014, he was injured within
the scope and course of employment with D&L due to
cumulative trauma from repetitive use of his back; an
Application for Resolution of Hearing Loss Claim (Form 103),
alleging on December 18, 2014, he had sustained disabling
occupational hearing loss due to repetitive exposure to
hazardous workplace noise; and an Employment History (Form
104). In support of his hearing loss claim, he attached a
report from Beltone Hearing Care Center of Somerset,
Kentucky, dated March 12, 2015, indicating a diagnosis of
slight to moderately severe binaural sensorineural loss,
noting complaints of tinnitus, and recommending hearing aids.
was deposed on July 21, 2015. He testified he had been
exposed to loud noise from equipment at work and had suffered
hearing loss. He admitted his first audiogram was performed
in 2013, but he denied receiving a copy of the report or
having had any knowledge of the audiogram results.
Barbara Eisenmenger, an audiologist, performed a university
medical evaluation at the request of the Division of
Workers' Compensation. In a medical report dated
September 21, 2015, she diagnosed a pattern of hearing loss
compatible with a long-term exposure to hazardous
occupational noise, with no pre-existing active impairment.
She assigned a 17% whole person impairment rating due to
permanent hearing loss based on the AMA Guides,
recommended treatment to include use of hearing aids, and
imposed restrictions of wearing hearing protection devices
when exposed to loud noise. Dr. Eisenmenger was unaware of
the 2013 audiogram but had been provided Hensley's work
history and March 12, 2015, audiogram results.
Benefit Review Conference was conducted on January 14, 2016.
The following contested issues were identified: benefits per
342.7305 and 342.730; work-related causation; notice; average
weekly wage; unpaid or contested medical expenses; injury as
defined by the workers' compensation act; exclusion for
pre-existing disability/impairment; and temporary total
Lisa Koch, another audiologist, conducted an independent
medical examination at D&L's request. Her medical
report, dated January 26, 2016, included comparison of
Hensley's audiograms from 2013 and 2015. Based on the
2013 audiogram, Dr. Koch opined Hensley had exhibited a
pre-existing active hearing loss qualifying for an 18% whole
person impairment rating due to binaural hearing loss. Based
on his 2015 audiogram, she opined Hensley had sustained no
additional hearing loss due to his 2014 employment at
hearing on January 29, 2016, Hensley testified he had been
exposed to constant loud noise at D&L due to the
operation of heavy equipment. He also testified he did not
wear hearing protection, nor was he required to do so,
because he needed to be able ...