Apportionment not appropriate for hazardous noise exposure

In Kentucky, the employer with whom an employee was last injuriously exposed to hazardous noise is exclusively liable for benefits.

Case name: Greg's Construction v. Keeton, No. 2011-CA-000761-WC (Ky. Ct. App. 09/16/11).

Ruling: The Kentucky Court of Appeals held that an operator's last employer was liable for his benefits related to his hearing loss.

Lack of fixed work site makes car crash compensable (02/25/13)
Failure to tell doctor pain was work-related doesn't curb benefits (02/25/13)
Employer liable for medical care related to latent, progressive injury (02/25/13)
Claim timely filed within 2 years of fatal heart attack (11/01/12)
Late payments, denial of treatment entitle worker to attorney's fees (09/30/11)

What it means: In Kentucky, the employer with whom an employee was last injuriously exposed to hazardous noise is exclusively liable for benefits.

Summary: A heavy equipment operator had a history of more than 30 years of exposure to occupational noise while working for various employers. An audiogram revealed a 15 percent whole person impairment for hearing loss. When he began working for his last employer, he was assessed at a 19 percent hearing loss. After he ceased working for the last employer, he was assessed at an 18 percent whole person impairment. He sought benefits and medical expenses from his last employer. The Kentucky Court of Appeals held that the last employer was liable for his benefits.

The employer did not dispute that it was the operator's last employer or that his hearing impairment was causally related to exposure to hazardous levels of work-related noise. The employer argued that its workplace did not cause or worsen the operator's condition. The court disagreed. The court said the 1 percent difference between the evaluations while he was employed for the employer and after the employment ended did not show his condition improved while he was working for the employer. It only indicated that two different experts arrived at different conclusions regarding his impairment. The court pointed out that the impairment was higher than the previous impairment rating of 15 percent, which reflected that his condition worsened. The operator's work at the employer was the same type of work that gave rise to the occupational hearing loss he had prior to his employment.

The employer also argued that its liability for paying the operator's benefits should have been apportioned between the operator's other past employers. The court disagreed because the employer with whom an employee was last injuriously exposed to hazardous noise is exclusively liable for benefits.

Read more at the WorkersComp Forum homepage.

November 3, 2011

Newsletter Sign-up