Markwell & Hartz, Inc. v. Pigman

473 S.W.2d 842, 1971 Ky. LEXIS 172
CourtCourt of Appeals of Kentucky
DecidedOctober 29, 1971
StatusPublished
Cited by5 cases

This text of 473 S.W.2d 842 (Markwell & Hartz, Inc. v. Pigman) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Markwell & Hartz, Inc. v. Pigman, 473 S.W.2d 842, 1971 Ky. LEXIS 172 (Ky. Ct. App. 1971).

Opinion

PALMORE, Judge.

On or about May 23, 1967, Charles Pig-man lost the hearing in his right ear while employed as a laborer by the appellant, Markwell & Hartz, Inc., on a reservoir construction project. He continued in the same employment until February of 1968 when the project was finished, following which, on March 28, 1968, he filed a claim for workmen’s compensation. Later on he took another construction job with the appellee Greer Brothers and Young, Inc., and while working for that employer on or about October 18, 1968, lost the hearing in his left ear. On July 25, 1969, he filed an amended application for workmen’s compensation in which Greer Brothers and Young, Inc., and the Special Fund were joined as defendants.

The administrative proceeding culminated in an award of $44 per week for 425 weeks against Markwell & Hartz, Inc., pursuant to a finding of fact that as the result of Pigman’s “May 23, 1967 exposure to loud and sudden noises he is totally and permanently disabled.” The award was affirmed on appeal to the circuit court, whereupon Markwell & Hartz, Inc., now appeals to this court.

Our conclusion that the appellant employer is correct in its contention that the evidence was not sufficient to support the board’s finding with respect to causation eliminates consideration of other issues.

The claimant testified on two occasions, once on December 9, 1968, and again on August 18, 1969. In the second of these two appearances his testimony was confined to the matter of notice to Markwell & Hartz, Inc., and to the rebuttal of certain testimony' to the effect that when he had first complained to his foreman he had attributed his loss of hearing “to a cold settling in his ear.” Aside from the medical testimony, which we shall summarize below, the only evidence of any connection between the work and the disability consists of the claimant’s testimony on December 9, 1968, which was substantially as follows:

On or about May 23, 1967, “I was drilling with a jack-hammer and I, drilling in rock and after I fooled with it so long, I mean, pavement breakers, jack-hammer, I run them all and I couldn’t hear anything. My head started hurting, my right ear, this one here (indicating), roaring, bells a ringing and everything. Still can’t hear.” He is 38 years old, had never had any injury or any trouble with his hearing, and had never been sick before his loss of hearing. He had commenced working for Markwell & Hartz, Inc., in July of 1966. His previous work for other employers had consisted mostly of driving trucks and had not included the operation of a jackhammer. The loss of hearing occurred suddenly (as distinguished from gradually), and he first noticed it one evening when he was on the way home after using the jackhammer in breaking concrete on the job. He sought medical treatment shortly thereafter. He was laid off by Markwell & Hartz, Inc., in February of 1968, after which he worked four to six weeks for another construction company, and at the time of testifying had been employed by Greer Brothers and Young, Inc., for about four months. He made no mention of the time, occasion or circumstances under which he lost the hearing in his left ear, nor did he indicate the extent and duration of his exposure to noise while employed by either Markwell & Hartz, Inc., or Greer Brothers and Young, Inc. (Testimony in this respect by representatives of Markwell & Hartz, Inc., suggests that Pig-man used a jackhammer sporadically and that most of this type of work was done during a 2-week period in March of 1967.)

Dr. Joseph A. Ballard, of Lexington, a specialist in otorhinolaryngology, testified that he had examined the claimant on November 8, 1968, at which time he was complaining of deafness and ringing and roaring in his ears. The case history related [844]*844to Dr. Ballard by Pigman was that about a year and a half previously, after working around loud equipment, he had experienced impaired hearing in the right ear and thereafter had been unable to hear out of that ear; that he had been using a jackhammer at the time and was advised to avoid further exposure to loud noises; and that about a month prior to the examination, after working around road construction, and following some kind of an explosion, he had marked and persistent ringing and roaring with continued inability to hear and was unable to carry on his work.

Dr. Ballard found that although Pig-man’s ear drums were intact and there were no visible signs of damage or deterioration, something had interfered with the functioning of the nerve that supplies the hearing and he was virtually deaf. On the critical question of causation Dr. Ballard testified as follows:

O. “Is it then, doctor, your opinion that this disability and everything is the result of an exposure to the use of a jackhammer?”
A. “Such disability could have resulted from such an exposure in one who is hypersensitive to loud noises.”
Q. “From your examination of Mr. Pig-man, would you say that he was hypersensitive ?”
A. “Well, his history would tend to indicate that he was.
* * * * * *
Q. “Is it your opinion — excuse me for repetition here; I think you have answered my question — is it your opinion then that the injuries complained of here were as a result of use and exposure to the jackhammer noises while he was working for the defendant?”
A. “Such an impairment could have resulted from such an exposure.”

Attached to Dr. Ballard’s deposition is his written report to counsel for Markwell & Hartz, Inc., which concludes as follows:

“Since I did not examine him originally I am unable to state whether or not the impairment of hearing which he gives a history of was due to the exposure to loud noises while working. It is further my opinion that such exposure could have resulted in his present findings.”

Dr. Arnold B. Combs, a specialist in otology and associate professor on the subject of otolaryngology at the University of Kentucky Medical School, examined Pigman on October 18, 1968, and again on March 17, 1969. As in the instance of Dr. Ballard, he found a profoundly disabling nerve type of hearing impairment. His opinions with respect to the cause of this difficulty are contained in the following excerpts from his testimony for the appellant employer:

Q. “What history did you receive from Mr. Pigman when you initially saw him on October 18, 1968?”.
A. “He gave a history at this time of having developed a sudden hearing loss in his right ear one year prior to presenting himself here. He told me that a cold preceded this hearing impairment and that the hearing had not returned in the right ear. He also stated that he had developed a sudden hearing loss in his left ear about two or three days prior to coming in here on October 18th, and that a cold preceded this loss.
“Treatment at both times did not help. He had no pain, no drainage from his ears, but stated that he was operating a jackhammer at the time of the loss in his right ear. Now he made no comment in regard to operating a jackhammer at the time of the loss in the left ear, but I may not have interrogated him adequately about that.
[845]

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Bluebook (online)
473 S.W.2d 842, 1971 Ky. LEXIS 172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/markwell-hartz-inc-v-pigman-kyctapp-1971.