Island Creek Coal Co. v. Breeding

• Decision Date: 01 March 1988
• Docket Number: No. 0405-87-3,0405-87-3
• Citation: 365 S.E.2d 782,6 Va.App. 1
• Parties: ISLAND CREEK COAL COMPANY v. Keithel BREEDING. Record
• Court: Virginia Court of Appeals

Page 782

365 S.E.2d 782

6 Va.App. 1

ISLAND CREEK COAL COMPANY v. Keithel BREEDING.

Record No. 0405-87-3.

Court of Appeals of Virginia.

March 1, 1988.

Thomas R. Scott, Jr. (Street, Street, Street, Scott & Bowman, Grundy, on brief), for appellant.

Stephen A. Vickers, Bristol, for appellee.

Present: KOONTZ, C.J., and BARROW and COLE, JJ.

COLE, Judge.

Island Creek Coal Company (Island Creek) appeals from a decision of the Industrial Commission finding that Keithel Breeding (Breeding) contracted an occupational hearing loss. Island Creek contends that (1) Code § 65.1-46.1, which makes ordinary diseases of life compensable, is inapplicable to Breeding's hearing loss because he did not suffer any injurious exposure after the effective date of the statute, July 1, 1986, and (2) even if Code § 65.1-46.1 is applicable to Breeding's claim, he failed to prove by clear and convincing evidence and to a reasonable medical certainty the elements required under that Code section. We hold that Code § 65.1-46.1 is applicable to Breeding's claim and that he met his burden of proof; therefore we affirm the commission's decision.

I.

Breeding began his employment with Island Creek in February of 1965 as a roof bolter ¹ and stoker operator. ² In 1971, his position was changed to shuttle car or "buggy" operator. ³ During this period, Breeding also "shot coal," operated a stoker and jackhammer, and used a hammer to repair equipment. He operated the stoker and jack hammer two to three times a week for about an hour each time. He repaired equipment with a hammer about every day for two to five minutes. Breeding occasionally shot coal with explosives and the blasts would last about thirty seconds. During one three or four month period within the five year period preceding Breeding's claim, ⁴ he worked on a project which required him to drill holes and then shoot rock. It would take him five hours to drill ten holes, then he would insert explosives and detonate the shot. Breeding remained employed with Island Creek through the filing of his claim in September, 1986; however, Island Creek employment records reveal that he only worked four days in July, 1986.

Breeding characterized his work environment as noisy and described how his ears would pop after a shot was detonated. Noise surveys performed on Breeding in his capacity as a shuttle car operator revealed compliance with safety standards promulgated by the Mine Safety Health Administration (MSHA). The noise levels within the established standards are not considered to cause or precipitate a sensorineural hearing loss. Outside of work, Breeding squirrel hunted occasionally, used a skill saw, electrical gardening equipment, and a lawn mower, and turned the television volume up loud due to his hearing loss.

About ten years before a diagnosis of an occupational hearing loss was communicated to him, Breeding noticed some hearing difficulty and began to experience tinnitus (ringing of the ears). However, he did not consult a physician concerning his hearing problem until July 31, 1986, when he was examined by Dr. Claude H. Crockett, Jr., an otolaryngologist. Dr. Crockett obtained pure tone averages of twenty-one decibels for Breeding's right ear ⁵ and twenty-eight decibels for his left ear. ⁶ After obtaining Breeding's medical and noise exposure histories, Crockett concluded that Breeding had an occupational hearing loss and communicated this diagnosis to him.

In a letter to Breeding's attorney, Dr. Crockett stated:

Mr. Breeding's hearing loss is consistent with prolonged noise exposure that might be obtained during his twenty eight years employment in the mines. Whether or not there are any non-employment factors responsible for his hearing loss, I would have no way of knowing this. However, he does have a negative history for such.

During Dr. Crockett's deposition, the following colloquy occurred:

Q. With respect to Mr. Breeding, can you state within a reasonable degree of medical certainty that the hearing loss you diagnosed that Mr. Breeding has did not result from causes outside his employment?

A. No.

Q. At Beatrice Pocahontas Company (Island Creek's parent company)?

A. No, I cannot state that unequivocally; however, he did not give me a history of anything I might interpret as having caused it, other than his exposure to noise in his workplace. ⁷

Breeding filed an application for workers' compensation benefits on September 4, 1986, alleging an occupational hearing loss. Island Creek defended on the grounds that: (1) Breeding suffered no injurious exposure after July 1, 1986, the effective date of Code § 65.1-46.1 making ordinary diseases of life compensable, and therefore application of Code § 65.1-46.1 to Breeding's claim would be retroactive and unconstitutional; and (2) even if Code § 65.1-46.1 is applicable to Breeding's claim, his hearing loss was not compensable because Breeding failed to prove by "clear and convincing evidence, to a reasonable medical certainty" that his work environment was the sole cause of his hearing loss, as required by Code § 65.1-46.1. The deputy commissioner ruled that Code § 65.1-46.1 applied to Breeding's claim. He also found that Breeding satisfied the requirements of Code § 65.1-46.1 and was thus entitled to compensation for his hearing loss. The full commission affirmed, and this appeal followed.

II.

During oral argument, Island Creek raised a statute of limitations defense for the first time on appeal, contending that Breeding did not meet his burden of proof that he was injuriously exposed within five years of the filing of his claim. The filing of a claim within the statutory period is jurisdictional, Anderson v. Clinchfield Coal Co., 214 Va. 674, 675, 204 S.E.2d 257, 258 (1974), and, therefore, failure to timely file may be raised for the first time on appeal. See Board of Supervisors v. Loudoun Nat. Bank, 141 Va. 244, 247, 126 S.E. 196, 197 (1925). The burden is upon the claimant to prove that he has complied with the filing provisions of Code § 65.1-52. Anderson, 214 Va. at 675, 204 S.E.2d at 258.

Code § 65.1-52(3) sets forth the limitations period which governs most occupational diseases. It provides, in pertinent part:

The right to compensation under this chapter shall be forever barred unless a claim be filed with the Industrial Commission ... two years after a diagnosis of the disease is first communicated to the employee or within five years from the date of the last injurious exposure in employment, whichever first occurs.

"Injurious exposure" is "an exposure to the causative hazard of such disease which is reasonably calculated to bring on the disease in question." Id. A claimant can meet the statutory standard for "injurious exposure" either "by establishing actual causation or aggravation of the disease or by showing that the exposure was of such duration and intensity that it generally causes the disease in question, even though actual causation or aggravation cannot be established in the claimant's case." Caudle-Hyatt, Inc. v. Mixon, 220 Va. 495, 500, 260 S.E.2d 193, 196 (1979).

We find, as the Industrial Commission implicitly did, that Breeding was injuriously exposed within the five years preceding the filing of his claim on September 4, 1986. Breeding's undisputed testimony was that he was exposed regularly to drilling and blasting at loud noise levels, and he recounted an incident within the five year period preceding his claim where he was exposed daily for at least five hours a day to constant drilling and blasting so intense that it caused his ears to pop.

Because Breeding was injuriously exposed to noise at Island Creek within the five years preceding his claim, his claim is not time barred under the second prong of Code § 65.1-52(3). Nor is his claim barred under the first prong of Code § 65.1-52(3); a diagnosis was first communicated to Breeding on July 31, 1986, and he filed a claim on September 4, 1986, well within the two year period prescribed by Code § 65.1-52(3). Therefore, we find that Breeding's claim was timely filed.

III.

Before we determine whether Code § 65.1-46.1 was properly applied to Breeding's claim, a history of the Code's development is appropriate. An ordinary disease of life is one to which the general public is exposed outside of the employment. Code § 65.1-46. Prior to July 1, 1986, ordinary diseases of life were noncompensable by statute with two limited exceptions. ⁸ See Code § 65.1-46 (1985). However, the Industrial Commission routinely awarded compensation for an ordinary disease of life if it was sufficiently connected to a claimant's employment by the claimant's satisfying the elements required for compensation of an occupational disease. ⁹ Report of the Joint Subcommittee Studying Workers' Compensation, H.Doc. No. 27, at 5 (1986). Consequently, hearing losses caused by a claimant's exposure to noise at work were compensated even though the general public was also susceptible to noise induced hearing loss outside of the employment. See, e.g., 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). In Western Elec. Co. v. Gilliam, 229 Va. 245, 329 S.E.2d 13 (1985), however, the Virginia Supreme Court held that, based on the clear legislative intent of Code § 65.1-46, an ordinary disease of life is noncompensable regardless of its causal connection to a claimant's employment. This court, bound by Gilliam, held in Belcher v. City of Hampton, 1 Va.App. 312, 338 S.E.2d 654 (1986), that hearing loss was a noncompensable ordinary disease of life.

In response to the Gilliam decision, the General Assembly enacted Code § 65.1-46.1, which makes ordinary diseases of life compensable if they are sufficiently connected to a claimant's employment. The statute, which became effective July 1, 1986, provides, in pertinent part:

An ordinary disease of life to which the general...