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Smith v. Georgia Pacific Corp.3/25/1999
AFFIRMED.
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and Conclusions of law.
The appeal has been perfected by the defendant-employer, Georgia Pacific Corporation, from the action of the trial court in awarding the employee, Jackie W. Smith, 50% loss of hearing in both ears. The trial Judge dismissed a claim for a back injury and the appeal only relates to the award of benefits for the loss of hearing injury.
On appeal the employer contends (1) proper notice of the loss of hearing injury was not given, (2) the claim was not filed within the one year statute of limitations period, and (3) the 50% award is excessive and should be reduced.
Plaintiff has worked at defendant's plant for about 25 years. He testified that there was a great deal of noise at the production line and his job duties required him to wear a headset which covered his ears and he had to communicate with co-workers with a microphone attached to the head unit. He stated he was 55 years of age and had a sixth grade level of education.
The record indicates the employer tested employees yearly for hearing loss and that during November 1995, plaintiff received a letter from defendant indicating that recent testing showed a reduced hearing level and that he may need to see a doctor for an examination and possible medical treatment. Upon receiving the form letter, he stated he asked Shawna Burke, the company's human resource administrator, to send him to a doctor for this testing. He said she refused his request saying the workers' compensation carrier would not pay for it. Plaintiff continued to work and eventually went to see Dr. Timothy Viser for the examination. This visit was on May 14, 1996 and he also saw the doctor during August 1996 and a last visit on September 30, 1997.
Plaintiff testified that on the first visit to the doctor he was told the hearing loss was probably due to conditions at work but he was not told he had a permanent injury until the last visit. He stated on the second visit the doctor requested that he wait one year before returning for the third visit and further testing.
Plaintiff had filed a complaint on March 19, 1997 for a back injury and the complaint was amended on December 16, 1997 alleging the loss of hearing injury.
The review of the case is de novo on the record accompanied by a presumption of the correctness of the findings of fact unless the preponderance of the evidence is otherwise. T.C.A. § 50-6-225(e)(2).
The first issue raises a question of whether notice of the hearing loss injury was rendered to defendant. The notice of injury statute, T.C.A. § 50-6-201, generally requires that written notice of injury be given within 30 days after the occurrence of an accident unless the employer has actual notice of such event. The statute also provides that failure to comply with the notice requirement may be excused where a reasonable excuse exists.
In gradual injury cases, it is difficult to pinpoint when an accidental injury occurs when the injury results from repetitive work- related causes over a long period of time. Thus, the rule has developed that in this type of case the accidental injury is considered generally to have occurred when the employee becomes disabled to work. Barker v. Home- Crest Corporation, 805 S.W.2d 373, 375 (Tenn. 1991); Brown Shoe Company v. Reed, 350 S.W.2d 65, 70-71 (Tenn. 1961).
The employer contends that it only had notice of the loss of
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