Last employer must cover benefits for operator's 35 years of noise exposure
Greg's Construction v. Keeton, No. 2011-SC-000605-WC (Ky. 08/23/12).
Ruling: The Kentucky Supreme Court held that a heavy equipment operator was entitled to benefits from his most recent employer for his work-related hearing loss.
What it means: In Kentucky, an employer's liability for work-related hearing loss is not contingent on a minimum period of hazardous noise exposure.
A heavy equipment operator filed an occupational hearing loss claim after working 35 years at various surface mines. His said that none of his employers required or provided hearing protection. He purchased his own ear muffs and wore them for the last 15 years because he thought he experienced a loss of hearing. The operator was not diagnosed with work-related hearing loss until shortly before he filed his claim. The Kentucky Supreme Court held that the operator's most recent employer was liable for benefits.
The court found the operator sustained a work-related injury. He was entitled to a rebuttable presumption that his hearing impairment was covered. A university evaluator said he exhibited a pattern of hearing loss "compatible with that caused by hazardous noise exposure in the workplace" and opined that the hearing loss resulted from "repetitive exposure to hazardous noise over an extended period of employment." The most recent employer did not offer evidence to rebut the presumption. Nothing disproved the operator's testimony that he was exposed to loud noises throughout his 35-year career such as evidence that his work for the last employer differed from his previous work or that the last employer required employees to participate in a hearing conservation program that prevented exposure to hazardous noise.
The court said that even if the operator only worked for the most recent employer for a few days before the evaluation, an employer's liability was not contingent on a minimum period of exposure. A worker does not have to prove that the last employment caused a measurable hearing loss. Liability is "exclusively" imposed on the last employer with whom the worker was injuriously exposed to hazardous noise. The court explained that liability could not be apportioned between the operator's various employers.
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October 29, 2012
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