Damron v. Kentucky May Mining Co., et al., No. 2009-CA-000867-WC (Ky. Ct. App. 01/29/10).
The Kentucky Court of Appeals upheld the Workers' Compensation Board's denial of permanent partial disability benefits, affirming a finding that the worker's hearing loss increase was due to age, not noise exposure.
What it means: In Kentucky, to reopen a workers' compensation case based on increased hearing loss, the worker must establish that his condition worsened because of exposure to the original work-related noise and not because of natural aging.
Summary: An electrician for a coal mining company entered a settlement with his former employer agreeing that he had hearing loss from on-the-job noise exposure. He filed a motion to reopen his claim a year later, claiming his hearing loss had worsened. He admitted he was not exposed to loud noises after he left the job. Several doctors agreed that his impairment had worsened. The employer argued the increased impairment was due to natural aging, and that under Kentucky's Workers' Compensation Act, he was not entitled to PPD benefits. The Court of Appeals agreed. It noted that the law requires the employee to establish a change in his disability by objective medical evidence and show that it was caused by the injury in order to reopen the claim. The court concluded that the testimony and medical evidence showed the increased hearing loss was not a result of the original injury.
The employee argued that the law cited by the employer did not refer to "hearing loss" and pointed to another provision that dealt specifically with occupational hearing loss due to hazardous noise. The court rejected his argument. It noted that if an employee was not required to first show that the injury caused the hearing impairment, then all cases based on noise-induced hearing loss awards would be subject to reopening regardless of whether the original exposure caused the additional impairment.
A dissenting judge asserted the majority created an "absurd, unjust, and unreasonable result." The judge pointed out that the employee's position gives a worker the benefit of a rebuttable presumption that his entire hearing loss is from the hazardous noise in the workplace, rather than age-related impairment.
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March 18, 2010
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