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D&L Mining v. Hensley

Court of Appeals of Kentucky

March 30, 2018

D&L MINING APPELLANT
v.
JIMMY HENSLEY, HON. JEANIE OWEN MILLER, ADMINISTRATIVE LAW JUDGE, AND KENTUCKY WORKERS' COMPENSATION BOARD APPELLEES

          PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NOS. WC-15-00649 AND WC-15-00650

          BRIEF FOR APPELLANT: David D. Black

          BRIEF FOR APPELLEE, JIMMY HENSLEY: McKinnley Morgan

          BEFORE: COMBS, DIXON, AND NICKELL, JUDGES.

          OPINION

          NICKELL, JUDGE

          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.[1] 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.

         Hensley 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.

         In 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[2] 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, [3] 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.

         Hensley 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.

         Hensley 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.

          Dr. 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, [4] 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.

         A Benefit Review Conference was conducted on January 14, 2016. The following contested issues were identified: benefits per KRS[5] 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 disability.

         Dr. 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 D&L.

         At the 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 ...


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