Hannah v. Workers' Compensation Com'r

• Decision Date: 03 April 1986
• Docket Number: No. 16861,16861
• Citation: 346 S.E.2d 757,176 W.Va. 608
• Court: West Virginia Supreme Court
• Parties: Ralph HANNAH v. WORKERS' COMPENSATION COMMISSIONER and Eastern Associated Coal Corporation.

Page 757

346 S.E.2d 757

176 W.Va. 608

Ralph HANNAH v. WORKERS' COMPENSATION COMMISSIONER and Eastern Associated

Coal Corporation.

No. 16861.

Supreme Court of Appeals of

West Virginia.

April 3, 1986.

Dissenting Opinion July 10, 1986.

Syllabus by the Court

In a claim for noise-induced occupational hearing loss, a "hazard," as contemplated by the Workers' Compensation Act, exists in any work environment where unusual or excessive noise is shown to be present.

Richard G. Rundle, Pineville, for appellants.

Anthony J. Cicconi, Shaffer & Shaffer, Madison, for appellee.

McGRAW, Justice:

This appeal involves an application for workers' compensation due to occupational hearing loss. The claimant appeals a final order of the Workers' Compensation Appeal Board which affirmed the Commissioner's ruling rejecting the application as being untimely filed. The extent of disability, if any, is not currently at issue. The limited question developed below is whether the claim is subject to consideration as being timely presented.

The pertinent facts are as follows. The appellant, who retired on September 30, 1981, had been employed by Eastern Associated Coal Corporation for over 34 years. The major portion of his work experience was spent underground in various job capacities, including fire boss, loading machine operator, cutting machine operator, jackhammer operator, and shot fireman. During the final 4 to 5 years of his career, however, he worked above-ground as a radio dispatcher.

On January 27, 1983, approximately 16 months after leaving the employ of Eastern the appellant filed an application for workers' compensation due to noise-induced hearing loss. The Commissioner, by order dated March 15, 1983, determined the claim to be compensable. The employer protested this ruling.

The protest hearing on the compensability issue was held on September 12, 1983. The only testimony presented was that of the appellant, under examination by the employer's counsel. The appellant stated that he first became aware of a hearing problem in 1974 or 1975, and that he initially sought medical diagnosis and treatment from a hearing specialist at that time. The appellant also testified that he made several visits to this physician, who eventually determined that his hearing loss was occupationally related and not amenable to corrective treatment. Upon inquiry as to his most recent exposure to occupational noise, the appellant testified that during his service as a dispatcher substantial noise emanated from the radio equipment. ¹

At the conclusion of the claimant's testimony, the claim was submitted for decision on the nonmedical question of compensability. On November 16, 1983, the Commissioner set aside her previous compensability determination and ruled that the application must be rejected as not timely filed. On June 7, 1985, the Appeal Board affirmed the Commissioner's final ruling. The Board quoted the applicable limitations period contained in West Virginia Code § 23-4-15 (1985 Replacement Vol.) and noted two grounds therein for rejection of the application: (1) the claim was filed over three years from the date of last exposure to hazards of the occupational disease; and (2) the claim was filed over three years from the time the claimant had knowledge that he was suffering from the occupational disease. For the reasons which follow, we find the legal conclusion of the Board to be error.

As cited by the Board, the applicable limitations provision states, in relevant part, that:

To entitle any employee to compensation for occupational disease other than occupational pneumoconiosis under the provisions hereof, the application therefor must be ... filed in the office of the commissioner within three years from and after the day on which the employee was last exposed to the particular occupational hazard involved or within three years from and after the employee's occupational disease was made known to him by a physician or which he should reasonably have known, whichever shall last occur....

West Virginia Code § 23-4-15 (1985 Replacement Vol.)

The language of this provision may be generally summarized as providing that the 3-year period begins to run against a prospective claimant only after the latest occurrence of three possible dates: (1) date of last exposure to the hazard involved; (2) date of receipt of a medical diagnosis that one has a disease (or perceptible aggravation of an existing disease) that is wholly or partially occupational in origin; or (3) date that constructive knowledge of such a disease may be imputed by reason of awareness of facts which should have led to inquiry and discovery.

The appellant herein does not challenge the Appeal Board's conclusion that, before filing, three years had passed since he had received medical confirmation that his hearing problems were occupationally induced. Rather, the appellant challenges the Appeal Board's conclusion that the application was also not submitted within three years of the date "last exposed to the particular occupational hazard involved...." West Virginia Code § 23-4-15 (1985 Replacement Vol.). Although the appellant's work history indicates probable exposure to substantial industrial noise during his three decades of underground mining, the only period implicated by this statute of limitations provision is his final 4 to 5 years as a dispatcher. Therefore, the controlling question is whether the evidence of industrial noise exposure during this latter period constituted a sufficient showing of a "hazard" as that term is used in the Workers' Compensation Act.

Under West Virginia Code § 23-4-1 (1985 Replacement Vol.), compensation is paid to employees for "personal injuries [received] in the course of and resulting from their covered employment...." This section goes on to provide that "[f]or the purposes of this chapter the terms 'injury' and 'personal injury' shall include occupational pneumoconiosis and any other occupational disease ... [where] such employees have been exposed to the hazards of occupational pneumoconiosis or other occupational disease...." Noise-induced gradual hearing loss sustained by a covered employee in the course of and resulting from employment is such a compensable occupational disease. Myers v. State Workmen's Compensation Commissioner, 160 W.Va. 766, 239 S.E.2d 124 (1977).

However, no definition of exposure to a "hazard" relating to sensorineural hearing loss, or any other occupational disease, is contained in the State's Workers' Compensation Act. ² In Meadows v. Workmen's Compensation Commissioner, 157 W.Va. 140, 198 S.E.2d 137 (1973), it became necessary for this Court to determine the definition of "hazard" as it relates to occupational pneumoconiosis. We concluded that the intended meaning of "hazard" as it applied to that particular disease was "any condition where it can be demonstrated that there are minute particles of dust in abnormal quantities in the work area." 157 W.Va. at 145, 198 S.E.2d at 139. Resolution of the question presented in the instant case simply requires a similar application of the ordinary and accepted meaning ³ of "hazard" as it relates to the generic designation of "any other occupational disease."

In Blackwell Zinc Company v. Parker, 406 P.2d 965 (Okla.1965), the Oklahoma Supreme Court was presented an appeal from an award of workers' compensation, where the employer argued the employee's claim was barred under the one-year limitation period which began to run from the date of last "hazardous exposure." The claimant had been employed at the employer's zinc smelting plant from 1943 through 1956. From 1943 until mid-1955, he was engaged in tasks which placed him "in direct contact with fumes, vapor and smoke emanating from zinc processing furnaces." 406 P.2d at 967. After lung surgery related to what was diagnosed as emphysema directly attributable to his occupation, the claimant returned to work and was given a job as an attendant at the entrance gate (located 600 feet from the furnace area) to the smelting plant. He held this job from September 1955 to October 1956; and filed his claim two months later.

The employer argued on appeal that the claimant's alleged exposure to "a whiff of smoke" on one occasion while working in the open air during his final year as a gate attendant should not have been determined as his date of last hazardous exposure because it bore no "reasonable relation in time, place and conditions" to the original hazard of the furnace department. The Oklahoma Supreme Court rejected the employer's argument and affirmed the lower tribunal, stating that:

As we view this argument, it rests on the assumption that the "last hazardous exposure" to the causative force of the harm must be perceptibly pathogenic and be of itself sufficient to effect disability. This is patently untenable. The injurious consequences of exposure are the product of gradual development extending over a period of time rather than the result of a point of time. No one particular exposure may be singled out and be regarded as responsible for the disease or any part thereof. It can only be said that the aggregate exposures resulted in harm. In short, the disability culminates from the cumulative effect of a prolonged exposure rather than from a series of...