Allied Fibers v. Rhodes, 2862-95-2

Citation23 Va.App. 101, 474 S.E.2d 829
Case DateSeptember 03, 1996
CourtCourt of Appeals of Virginia

Page 829

474 S.E.2d 829
23 Va.App. 101
ALLIED FIBERS and Travelers Indemnity Company of Illinois
Walter R. RHODES, Sr.
Record No. 2862-95-2.
Court of Appeals of Virginia, Richmond.
Sept. 3, 1996.

[23 Va.App. 102] S. Vernon Priddy, III (Mary Louise Kramer; Jennifer G. Marwitz; Sands, Anderson, Marks & Miller, on briefs), Richmond, for appellants.

Gerald G. Lutkenhaus, Richmond, for appellee.


BENTON, Judge.

Allied Fibers contends that the Workers' Compensation Commission erred by awarding Walter R. Rhodes, Sr. partial disability benefits for permanent hearing loss caused by his employment. Allied Fibers asserts that in light of the Supreme Court's recent decision in The Stenrich Group v. Jemmott, 251 Va. 186, 467 S.E.2d 795 (1996), Rhodes' hearing loss is not a compensable disease under the Workers' Compensation Act because it is a gradually incurred injury or a cumulative trauma condition. Alternatively, Allied Fibers argues that the claim is barred by the statute of limitations, that the commission erred by remanding the case to the deputy commissioner to take additional evidence on whether Rhodes' hearing loss is a disease, and that the record does not establish "[b]y clear and convincing evidence, to a reasonable degree of medical certainty, that [Rhodes' hearing loss] arose out of and in the course of employment," as required by Code § 65.2-401. We do not address Allied Fibers' alternative claims because the Supreme Court's decision in Jemmott mandates our holding that gradually incurred industrial hearing loss is a noncompensable, cumulative

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trauma condition or injury. Accordingly, we reverse the commission's award and dismiss Rhodes' claim.

In awarding Rhodes benefits, the commission relied upon the opinions of Dr. Aristides Sismanis, Dr. W. Copely McLean, [23 Va.App. 103] and Dr. Fred T. Shaia, all of whom diagnosed Rhodes as suffering from bilateral sensorineural hearing loss due to noise exposure. "Sensorineural hearing loss originates in the inner ear" or cochlea. Robert A. Dobie, M.D., Medical-Legal Evaluation of Hearing Loss 29 (1993). Exposure to noise causes the stereocilia on the outer hair cells in the cochlea to

lose their stiffness and hence their ability to vibrate in response to sound; this causes a reversible hearing loss (temporary threshold shift, or TTS). After repeated hazardous exposures, the stereocilia become permanently damaged, the hair cell dies, and permanent threshold shift (PTS) occurs. The more intense and prolonged the exposures, the greater the degree of outer hair cell loss. Eventually, inner hair cells and auditory nerve fibers will be lost as well.

Id. at 135 (emphasis added) (citations omitted). Thus, typical noise-induced hearing loss is a gradually incurred impairment resulting from cumulative trauma.

Noise damage to sensorineural hearing belongs under the general heading of traumatic injury because it is strictly a physical force. However, it does not fit the classic definition of injury, namely a sudden event produced by immediate trauma.

Attorney's Textbook of Medicine § 84.65 (Roscoe N. Gray & Louise Gordy, eds., 3d ed., 1995).

In Jemmott, the Supreme Court reiterated that "[a] definition of either 'injury' or 'disease' that is so broad as to encompass any bodily ailment of whatever origin is too broad because it would make unnecessary and meaningless the two categories specifically set forth in the Act." 251 Va. at 194, 467 S.E.2d at 799-800 (quoting Holly Farms v. Yancey, 228 Va. 337, 340-41, 321 S.E.2d 298, 300 (1984)). See also Merillat Indus., Inc. v. Parks, 246 Va. 429, 433, 436 S.E.2d 600, 602 (1993). Consequently, the Court rejected The Sloane-Dorland Annotated Medical-Legal Dictionary definition of disease that we adopted in Piedmont Mfg. Co. v. East, 17 Va.App. 499, 438 S.E.2d 769 (1993), as being too broad. In [23 Va.App. 104] rejecting a purely medical definition of "disease," the Court noted that the meaning of disease under the Act is a mixed question of law and fact, and that "just because a doctor opines that a particular impairment is a disease does not necessarily make it so." Jemmott, 251 Va. at 198, 467 S.E.2d at 801. The Court further held that "an impairment resulting from cumulative trauma caused by repetitive motion ... must be classified as an injury, not a disease, and ... under Merillat, is not compensable." Id. at 198, 467 S.E.2d at 802.

Rhodes contends that the Supreme Court's holding in Jemmott applies only to cumulative trauma conditions caused by repetitive motion. However, Rhodes "overlooks the fact that the opinion represents a clear refusal 'to broaden the scope of the Act to include job-related impairments arising from repetitive motion or cumulative trauma.' " Id. at 199, 467 S.E.2d at 802 (quoting Merillat, 246 Va. at 433, 436 S.E.2d at 601-02) (emphasis added). The Supreme Court's holding is clear and unequivocal, and leaves no doubt that in Virginia cumulative trauma conditions, regardless of whether they are caused by repetitive motion, are not compensable under the Act.

Both this Court and the commission have long held that hearing loss caused by exposure to noise at work is a compensable disease. See Bader v. Norfolk Redevelopment & Hous. Auth., 10 Va.App. 697, 700, 396 S.E.2d 141, 143 (1990); Island Creek Coal Co. v. Breeding, 6 Va.App. 1, 8-9, 365 S.E.2d 782, 786-87 (1988); Hale v. Clinchfield Coal Co., 59 O.I.C. 112 (1981); Mullins v. Clinchfield Coal Co., 58 O.I.C. 253 (1978); Lee v. Norfolk Gen. Hosp., 57 O.I.C. 226 (1977); Rodahaver v. Allegheny Airlines, 56

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O.I.C. 270 (1975). However, when the Supreme Court reversed this Court's decision in Jemmott, it also vacated and remanded to this Court Tara K Coal Co. v. Glenn Collier, Record No. 1327-95-3, 1995 WL 686093 (Unpublished, November 21, 1995), in which this Court had held that sensorineural hearing loss was proved to be an occupational disease. Viewed in this context, we conclude that the holding in Jemmott logically leads to the conclusion that a hearing impairment resulting from cumulative trauma is not a [23 Va.App. 105] disease under the Act. 1 Therefore, we hold that hearing loss caused by prolonged exposure to noise at work is a noncompensable gradually incurred injury. Accordingly, we reverse the commission's award of benefits and dismiss the claim.

Reversed and dismissed.

COLEMAN, Judge, concurring.

I agree with the majority that the Supreme Court's holding in The Stenrich Group v. Jemmott, 251 Va. 186, 467 S.E.2d 795 (1996), compels us to hold that sensorineural hearing loss caused by prolonged exposure to noise in the workplace is not a disease. I reach this conclusion, not because hearing loss is [23 Va.App. 106] inconsistent with a definition of disease that the Supreme Court has set forth, but because Jemmott classifies "job-related impairments arising from repetitive motion or cumulative trauma " as gradually incurred injuries. Id. at 199, 467 S.E.2d at 802 (emphasis added). Accordingly, because occupational hearing loss is consistent with the definition of a gradually incurred injury, it is not a disease, and because gradually incurred injuries that result from cumulative trauma are not compensable under the Act, Walter Rhodes' hearing loss is not compensable even though it arose out of and in the course of his employment. Although I agree with the majority, I write separately to express my concern that even though today's decision is mandated by Supreme Court precedent, it is inconsistent, in my opinion, with the expressed intent of the legislature's 1986 amendment to the Act. Furthermore, the decision is inconsistent with the decisions of the commission and the Court which the legislature did not see fit to change during its 1986 study and revisions.

When the Workers' Compensation Act was first enacted in 1918, "[c]ompensation for disease 'in any form' was excluded except 'where it result[ed] naturally and unavoidably from [an] accident.' " Jemmott, 251 Va. at 192, 467 S.E.2d at 798. Thus, only diseases that were the consequence of or secondary to an industrial accident were compensable. In

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1944, the General Assembly provided a schedule of occupational diseases, and a condition other than an injury by accident was not compensable under the Act unless it was listed in this schedule. See Code § 65.1-47 (repealed 1970); Morris v. Morris, 238 Va. 578, 584, 385 S.E.2d 858, 862 (1989). The legislature abolished the schedule of compensable diseases in 1952, but then reenacted it in 1958. In 1969, a study committee appointed by the General Assembly recommended eliminating the schedule of diseases. Report of the Virginia Advisory Legislative Council, Matters Pertinent to the Industrial Commission of Virginia, Va.H.Doc. No. 17, at 6 (1969). Significantly, the committee's recommendation was based on its finding that the schedule was too restrictive.

The schedule of occupational diseases as set out in § 65.1-47 attempts to be all-inclusive. However, the only possible [23 Va.App. 107] effect the schedule can have is to eliminate a disease which may in fact be an occupational disease.... The elimination of the schedule insures the most comprehensive coverage of occupational diseases; yet the employer is not prejudiced because the disease must in fact be an occupational disease, arising out of and in the course of employment.

Id. (emphasis added). The General Assembly accepted this recommendation and repealed the schedule of occupational diseases, replacing it with a statutory scheme for coverage of occupational diseases that has remained essentially unchanged since 1970. 1970 Va.Acts. 470.

Beginning in 1958 and continuing until the legislature eliminated the schedule of occupational diseases in 1970,...

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