Greg's Construction v. Keeton

385 S.W.3d 420, 99 A.L.R. 6th 835, 2012 WL 3636885, 2012 Ky. LEXIS 124
CourtKentucky Supreme Court
DecidedAugust 23, 2012
DocketNo. 2011-SC-000605-WC
StatusPublished
Cited by3 cases

This text of 385 S.W.3d 420 (Greg's Construction v. Keeton) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Greg's Construction v. Keeton, 385 S.W.3d 420, 99 A.L.R. 6th 835, 2012 WL 3636885, 2012 Ky. LEXIS 124 (Ky. 2012).

Opinion

OPINION OF THE COURT

An Administrative Law Judge (ALJ) determined that the claimant sustained a work-related hearing loss and that KRS 342.7305(4) placed the entire liability for income and medical benefits on Greg’s Construction, the employer with whom the claimant was last injuriously exposed to hazardous noise. The Workers’ Compensation Board and the Court of Appeals affirmed.

Appealing, Greg’s argues that the claimant failed to prove an injury attributable to his employment with Greg’s or to prove that his employment with Greg’s represented his last injurious exposure. He also argues that KRS 342.7305(4) does not preclude apportioning liability among employers where the evidence so permits.

We affirm. The record contains substantial evidence that audiograms and other testing revealed a pattern of hearing loss compatible with that caused by hazardous noise exposure and contains substantial evidence that the claimant sustained repetitive exposure to hazardous noise in the workplace, including his final employment with Greg’s. KRS 342.7305(4) states unambiguously that “the employer with whom the employee was last injuriously exposed to hazardous noise shall be exclusively liable for benefits.”

The claimant, Jerry Keaton, was born in 1955. He filed an occupational hearing loss claim after working for nearly 35 years as a heavy equipment operator at various surface mines. He testified when deposed in March 2010 that his employers neither required nor provided hearing protection. He stated that he purchased ear muffs about 15 years earlier and wore them because he thought he was experiencing a hearing loss, but no physician diagnosed a work-related hearing loss until shortly before he filed his claim. A chronological summary of the relevant evidence and procedural events is as follows:

• September 2007: Keeton began working for Johnson Floyd Coal Company.
• December 15, 2008: Dr. Manning evaluated Keeton’s hearing at the request of his attorney; noted a 35-year history of exposure to loud noise while employed as a heavy equipment operator; assigned a 15% impairment rating based on hearing loss; and recommended hearing aids.
• March 5, 2009: Keeton filed a Form 103 application for benefits, naming [423]*423Johnson Floyd as the defendant and supporting the application with Dr. Manning’s report. He alleged a work-related hearing loss that became manifest on December 15, 2008.
• March 6, 2009: The employment with Johnson Floyd ceased.
• On or about March 6, 2009: Keaton began working for Miller Brothers Coal Company.
• April 3, 2009: The employment with Miller Brothers ceased.
• May 13, 2009: Keeton began working for Apostle Fuels.
• May 14, 2009: Dr. Touma evaluated Keeton for Johnson Floyd; assigned a 9% impairment rating based on hearing loss; and reported that the high frequency portion of the hearing loss was compatible with noise-induced hearing loss. Keeton submitted the report subsequently “for its statistical content.”
• July 1, 2009: Dr. Jones performed a university evaluation as required by 803 KAR 25:010, § 11. He assigned a 19% impairment rating; reported a pattern of hearing loss compatible with that caused by exposure to hazardous noise in the workplace; and opined that Keeton’s hearing loss resulted from repetitive exposure to hazardous noise over an extended period of employment.
• July 10, 2009: Keeton began to work for Greg’s Construction. He had also worked briefly for Greg’s in 2006 or 2007, before becoming employed by Johnson Floyd.
• August 12, 2009: The ALJ granted Keeton’s motion to join Miller Brothers and Apostle as defendants.
• January 8, 2010: The employment with Greg’s ceased.
• March 3, 2010: Dr. Manning re-evaluated the claimant at the request of Apostle Fuels. He assigned an 18% impairment rating and noted that Kee-ton reported experiencing greater hearing loss than previously.
• April 14, 2010: The ALJ joined Greg’s as a defendant.

Included among the contested issues were: 1.) whether Keeton sustained an “injury” as defined by Chapter 342; 2.) extent and duration; 3.) pre-existing active impairment; 4.)whether there was an injurious exposure at each employment; and 5.) which employer was liable for benefits.

Relying on the claimant’s testimony that he was exposed to a lot of noise while operating “an open cab D5” for Greg’s, the ALJ determined that he sustained an injurious exposure in his employment with Greg’s. Noting that KRS 342.315 requires a university evaluator’s clinical findings and opinions to be given presumptive weight and that the claimant began working for Greg’s only a few days after the evaluation, the ALJ found no reason not to rely on the 19% impairment rating assigned by Dr. Jones. The ALJ concluded that KRS 342.7305(4) placed the entire liability for income and medical benefits on Greg’s because it was the last employer and awarded partial disability benefits from the date that the employment ceased. Greg’s appealed following the denial of its petition for reconsideration.

I. STANDARD OF REVIEW.

The claimant had the burden of proof and risk of non-persuasion before the ALJ with regard to every element of his claim.1 KRS 342.285 designates the [424]*424ALJ as the finder of fact in workers’ compensation cases. It permits an appeal to the Board- but provides that the ALJ’s decision is “conclusive and binding as to all questions of fact” and, together with KRS 342.290, prohibits the Board or a reviewing court from substituting its judgment for the ALJ’s “as to the weight of evidence on questions of fact.”

KRS 342.285 gives the ALJ the sole discretion to determine the quality, character, and substance of evidence.2 As fact-finder, an ALJ may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same party’s total proof.3 KRS 342.285(2) and KRS 342.290 limit administrative and judicial review of an ALJ’s decision to determining whether the ALJ “acted without or in excess of his powers;”4

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Bluebook (online)
385 S.W.3d 420, 99 A.L.R. 6th 835, 2012 WL 3636885, 2012 Ky. LEXIS 124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gregs-construction-v-keeton-ky-2012.