Clinchfield Coal Co. v. Barton

• Decision Date: 16 August 1988
• Docket Number: No. 1041-87-3,1041-87-3
• Court: Virginia Court of Appeals
• Parties: CLINCHFIELD COAL CO. v. Garrett BARTON. Record

Page 39

371 S.E.2d 39

6 Va.App. 576

CLINCHFIELD COAL CO. v. Garrett BARTON.

Record No. 1041-87-3.

Court of Appeals of Virginia.

Aug. 16, 1988.

Michael F. Blair (Penn, Stuart, Eskridge & Jones, Abingdon, on brief), for appellant.

Stephen Vickers, Abingdon, (United Mine Workers of America, Legal Department, on brief), for appellee.

Present: COLEMAN, DUFF and HODGES, JJ.

COLEMAN, Judge.

We ruled on January 7, 1986, that an occupationally-induced gradual hearing loss was noncompensable under Code § 65.1-46 of the Workers' Compensation Act because it was an ordinary disease of life. Belcher v. City of Hampton, 1 Va.App. 312, 316, 338 S.E.2d 654, 656 (1986). On July 1, 1986, a new "ordinary disease of life" statute took effect making such a hearing loss compensable, provided it meets certain criteria. Code § 65.1-46.1. In this case we consider whether a claimant is precluded from receiving benefits when an earlier claim had been denied following Belcher and before the new statute took effect. Clinchfield Coal appeals the award of compensation to Garrett Barton for his occupationally-induced hearing loss. Clinchfield argues that claimant failed to prove that the loss was not caused by exposure outside the employment, and that the commission erred by awarding compensation for the entire hearing loss rather than for the increase since his previously denied claim. We affirm the commission except for the award of benefits for the hearing loss that had been previously adjudicated.

Claimant worked in appellee's coal mines for twenty-six years. His most recent position was as a car dropper. In August 1985, claimant was notified by Dr. Claude Crockett that he had a hearing loss due to work conditions. He filed a claim with the Industrial Commission. The commission denied the claim under the authority of Belcher, ruling that a hearing loss was a noncompensable ordinary disease of life. Barton continued his employment in the mines. In August 1986, Dr. Crockett again examined the claimant and found an increased loss of hearing in his right ear; Barton's left ear tested essentially the same as it had previously. After Barton received the communication of Dr. Crockett's latest diagnosis of an occupational disease, he again filed a claim.

Dr. Crockett's reports of August 15, August 25, 1986, and January 7, 1987, related claimant's hearing loss to his work at the mines. Claimant told the physician that he had been exposed to loud noise on the job, but he gave no history of nonemployment noise exposure. Dr. Crockett expressed some concern about the hearing loss pattern in which one ear had more loss than the other; he explained that when the loss is noise-induced, there is usually a similar loss in each ear. Dr. Roger Neal, who also examined Barton, opined that his hearing loss pattern was consistent with loud noise exposure.

The claimant testified that he had long been exposed to loud noise in his employment with Clinchfield. This testimony was unrefuted. Claimant also testified that he served in the army engineers from 1952 to 1954, that he saw no combat, and that he had gone through basic training but not artillery training. He testified that he did not hunt but that on occasion he had shot a .22 rifle between February 1985 and August 1986. The deputy commissioner awarded benefits for all of claimant's hearing loss and the full commission affirmed.

Clinchfield argues that Dr. Crockett's testimony that he was unable to determine what effect Barton's military service had on his hearing is fatal to Barton's claim because he has the burden to show by clear and convincing evidence to a reasonable medical certainty that the loss "did not result from causes outside of the employment." Code § 65.1-46.1. Clinchfield correctly states the burden of proof required for a claimant to prevail under Code § 65.1-46.1. However, we must view the evidence in the light most favorable to the claimant. According to Barton and his wife his hearing loss was recent, his military service was non-combatant, he did not hunt, he occasionally shot a rifle, but he had been exposed daily to extremely loud noise while working in the mines for twenty-four years. The medical opinions of both doctors were unequivocal in establishing a causal relationship between the hearing loss and exposure to job related noise. The claimant introduced sufficient credible evidence to establish to a reasonable medical certainty that his hearing loss was caused by his employment.

The suggestion by the employer that during the employee's life he was on occasion exposed to other noise is insufficient to require us to disturb the commission's opinion. Further, the physician's inability to quantify the effect of Barton's military service on his hearing is not fatal. The Industrial Commission, as factfinder, was justified in concluding that Barton's loss was not caused by factors outside his employment based on his long term loud noise exposure on the job and the comparatively minor exposure elsewhere. See Island Creek Coal Co. v. Breeding, 6 Va.App. 1, 365 S.E.2d 782 (1988). Ample credible evidence supported the commission's finding of a compensable hearing loss; it will not be disturbed on appeal.

Clinchfield argues that even if the hearing loss is compensable, the benefits to which Barton is entitled are limited by res judicata principles to the hearing impairment occurring after the commission's denial of Barton's first claim. Because the employer does not argue that claimant is barred from bringing the action, but only that his claim for benefits cannot include any loss litigated in the previous claim, we confine ourselves to that question.

Both parties concede on brief that Barton's claim is based on a different cause of action, additional injurious exposure, different medical evidence, and a second diagnosis of an occupational disease. Therefore, this claim differs from the one in Childress v. Beatrice Pocahontas Co., 6 Va.App. 88, 366 S.E.2d 722 (1988). In Childress, we hold that a second claim for a hearing loss was not a new cause of action because it was based on the same medical results and evidence as the first claim. Thus, because there is no identity of issues between Barton's present and former claims, the res judicata bar applied in Childress does not preclude...