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Bright v. American Greetings Corporation12/20/2001
OPINION OF THE COURT
The claimant sustained a work-related injury to his lower back on June 10, 1997, but he continued to work until June 1, 1998. Shortly thereafter, he filed consolidated workers' compensation claims for the back injury and for a hearing loss that was allegedly caused by an exposure to hazardous noise at work. The results of a university evaluation that were introduced into evidence over the employer's objection included testing that revealed an AMA impairment and an audiologist's opinion that the impairment was caused by work- related noise exposure. Also introduced was evidence of an AMA impairment to the back that was apportioned equally to the injury, itself, and to the arousal of dormant, pre-existing degenerative changes.
After the Administrative Law Judge (ALJ) rejected the university evaluator's opinion concerning the cause of the hearing impairment and determined that half of the claimant's back impairment must be excluded because it was due to the natural aging process, the claimant appealed. Although the Workers' Compensation Board (Board) affirmed, in part, a majority reversed with regard to the weight to be afforded the university evaluator's testimony, and the entire Board reversed with regard to the exclusion for the natural aging process. Applying our then-recent decision in Magic Coal Co. v. Fox, Ky., 19 S.W.3d 88 (2000), the Court of Appeals reversed on the first issue and affirmed on the second. We affirm.
The claimant alleged that he sustained daily exposure to loud noise for 18 years, while working for the defendant-employer. He testified that he had noticed a significant worsening of his hearing during the last two years that he worked, that he presently had difficulty understanding normal conversation, and that he would be unable to communicate with others in the course of performing a job .
Dr. Windmill, an audiologist and the appointed university evaluator, performed audiometric testing. The claimant informed him that he had worked for the defendant-employer for 22 years as a bailer helper and that he was near the machine for four to eight hours each day. Dr. Windmill noted that the claimant "was exposed to loud noises from the bailer and the cutter" and that he did not wear hearing protection at any time. He determined that the claimant suffered from a 24% AMA hearing impairment and that the pattern of hearing loss was compatible with hazardous noise exposure in the workplace. In his opinion, the claimant's hearing loss was work-related.
The evidence concerning the level of noise exposure was conflicting, including the claimant's own testimony. Although he told Dr. Windmill that his working conditions were noisy, prior to filing the claim he had told his physicians that they were not noisy. The employer's human resources administrator testified that the claimant had, indeed, been a bailer helper but asserted that he was not exposed to loud noise in that capacity. He indicated that dosimeters (devices that record the time-weighted average of noise levels) were presently worn by workers and demonstrated that there was no excessive noise in the plant. This testing was performed after the claimant no longer worked at the plant. However, the former human resources administrator also testified and indicated that the company had never had a hearing loss claim in the 30 years that he had worked there.
The testimony of various physicians concerning the extent to which work for the defendant-employer contributed to the impairment also was conflicting. There was evidence that at least some of the impairment was age-related, and there was evidence that the claimant had suffered from an ear infection and hear
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