Adams v. Alliant Techsystems, Inc.

• Decision Date: 20 April 2001
• Docket Number: Record No. 002613.
• Citation: 261 Va. 594,544 S.E.2d 354
• Parties: Harry ADAMS, et al. v. ALLIANT TECHSYSTEMS, INC., et al.
• Court: Virginia Supreme Court

544 S.E.2d 354

261 Va. 594

Harry ADAMS, et al. v. ALLIANT TECHSYSTEMS, INC., et al.

Record No. 002613.

Supreme Court of Virginia.

April 20, 2001.

Gary W. Kendall, Charlottesville (J. Gregory Webb; C. Richard Cranwell, Roanoke; Brent Coon; Richard S. Glasser, Norfolk; Robert R. Hatten, Newsport News; Reuben A. Guttman; Brian McCafferty; Charles V. Firth, Washington, DC; Michie, Hamlett, Lowry, Rasmussen & Tweel, Charlottesville; Cranwell, Moore & Buffington, Roanoke; Provost Umphrey Law Firm; Kendall, Hatten & Glasser, on briefs), for appellants.

Linda D. Frith (Nancy F. Reynolds; Frith, Anderson & Peake, on brief), Roanoke, for appellees.

Present: CARRICO, C.J., LACY, HASSELL, KEENAN, KOONTZ, and LEMONS, JJ., and WHITING, Senior Justice.

LEMONS, Justice.

On October 27, 2000, the United States District Court for the Western District of Virginia entered an order of certification requesting that we exercise our certification jurisdiction, Va. Const. art. VI, § 1; Rule 5:42, and answer the following questions:

1. Does the Virginia Workers' Compensation Act bar a plaintiff from bringing a common-law cause of action to recover damages for his or her hearing loss resulting from cumulative trauma if the claim accrued during the period in which such hearing loss was not a compensable injury or disease under the Act?

2. If an alleged impairment is not compensable under and not barred by the Virginia Workers' Compensation Act, must the plaintiff still file a claim with the Workers' Compensation Commission before filing a common-law cause of action?

We accepted the certified questions by order entered on December 14, 2000. For the reasons stated below, we answer both certified questions in the negative.

I. Facts

Three hundred and forty-two (342) plaintiffs either are working or have worked at the Radford Army Ammunition Plant ("Arsenal") in Radford, Virginia, and seek damages for hearing loss allegedly caused by exposure to unsafe, hazardous, and excessive noise levels while working at the Arsenal. Hercules, Inc. ("Hercules") operated the Arsenal until about February 1995, when operations were undertaken by Alliant Techsystems, Inc. ("Alliant").¹ Plaintiffs filed a complaint in the United States District Court for the Western District of Virginia, alleging that defendants negligently conducted manufacturing operations during their respective tenures of operating the Arsenal, causing each plaintiff to suffer either partial or total hearing loss.

Defendants moved to dismiss plaintiffs' complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. They maintain that the exclusivity provision of the Virginia Workers' Compensation Act, Code § 65.2-100 et seq. ("Act"), bars the plaintiffs' common law personal injury claims and that, even if plaintiffs' claims are not barred, plaintiffs must, nonetheless, file a claim with the Workers' Compensation Commission ("Commission") and have compensability determined by the Commission before filing a common law cause of action.

II. Analysis

On March 1, 1996, this Court decided The Stenrich Group v. Jemmott, 251 Va. 186, 467 S.E.2d 795 (1996). Three cases involving claimants seeking compensation for disease caused by repetitive motion or trauma under the Act were consolidated for consideration under Jemmott. Two cases involved carpal tunnel syndrome and one case involved "trigger thumb." We held that "job-related impairments resulting from cumulative trauma caused by repetitive motion, however labeled or however defined, are, as a matter of law, not compensable under the [then existing] provisions of the Act." Id. at 199, 467 S.E.2d at 802. Several months later, on September 3, 1996, the Court of Appeals of Virginia rendered an opinion in a hearing loss case, stating that "the Supreme Court's decision in Jemmott mandates our holding that gradually incurred industrial hearing loss is a noncompensable, cumulative trauma condition or injury," under the terms of the then existing Act. Allied Fibers v. Rhodes, 23 Va.App. 101, 102, 474 S.E.2d 829, 829-30 (1996).

Apparently in response to Jemmott and Allied Fibers, the General Assembly amended the Act, effective July 1, 1997, to exclude carpal tunnel syndrome and hearing loss as occupational diseases pursuant to Code § 65.2-400, but to include them as ordinary diseases of life under Code § 65.2-401. See Code § 65.2-400(C). Accordingly, after July 1, 1997, hearing loss is within the purview of the Act.

Defendants contend that between March 1, 1996 (when we decided Jemmott) and July 1, 1997 (when the amendment to the Act became effective), a "narrow window" occurred, wherein claims for hearing loss caused by cumulative trauma were not within the purview of the Act. By contrast, plaintiffs maintain that such claims were never within the purview of the Act before July 1, 1997.

As early as 1943, in Aistrop v. Blue Diamond Coal Co., 181 Va. 287, 24 S.E.2d 546 (1943), we noted that "injury of gradual growth, ... caused by the cumulative effect of many acts done or many exposures to conditions prevalent in the work, no one of which can be identified as the cause of the harm, is definitely excluded from compensation." Id. at 293, 24 S.E.2d at 548 (quotation marks omitted). Two years after our decision in Aistrop, the General Assembly amended the Act to include limited coverage for occupational diseases. However, as we noted in Morris v. Morris, 238 Va. 578, 586, 385 S.E.2d 858, 863 (1989)(citing Lane Co. v. Saunders, 229 Va. 196, 199 n. *, 326 S.E.2d 702, 703 n. * (1985)), despite many opportunities and the passage of what has now been over 50 years, the legislature "has made no change in the Aistrop rule with respect to injuries gradually incurred." Moreover, in Western Elec. Co. v. Gilliam, 229 Va. 245, 247-48, 329 S.E.2d 13, 14-15 (1985)(internal footnote omitted), we stated:

Some contend that any disability arising out of and during the course of employment, including disabilities resulting from both injuries and diseases caused gradually by repeated trauma, should be made compensable under the Workers' Compensation Act. But such a consequential decision, impacting as it must a broad spectrum of economic and social values, is a matter of public policy reserved to the original and exclusive jurisdiction of the General Assembly, and we will not trespass upon its domain.

Additionally, we have held that the Court of Appeals erred in holding that a torn rotator cuff muscle caused by repetitive trauma was compensable under the Act. See Merillat Indus., Inc. v. Parks, 246 Va. 429, 436 S.E.2d 600 (1993)

. Thus, from Aistrop in 1943 to Jemmott in 1996, this Court has consistently held that, whether characterized as an injury or a disease, if the job-related impairment "result[ed] from cumulative trauma caused by repetitive motion," it was not compensable under the Act. Jemmott, 251 Va. at 199,

467 S.E.2d at 802.

A particular claim may be non-compensable for one of two reasons: (1) it does not fall within the purview of the Act, or (2) while within the purview of the Act, certain defenses preclude recovery. Defendants assert that plaintiffs' claims fall within the purview of the act and its exclusivity provision, Code § 65.2-307. We disagree.

A similar question was presented in Middlekauff v. Allstate Ins. Co., 247 Va. 150, 439 S.E.2d 394 (1994), which involved a claim of intentional infliction of emotional distress from cumulative incidents. The trial court dismissed Middlekauffs tort action, holding that the exclusivity provision of Code § 65.2-307 barred a common law suit. We reversed and held that:

Here, Middlekauff alleges a gradually incurred injury caused by cumulative events. Specifically, she alleges a "pattern of

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