James River Corp. v. Mays

• Decision Date: 26 September 1990
• Citation: 572 So.2d 469
• Parties: JAMES RIVER CORPORATION v. Roscoe MAYS, Jr. Civ. 7521.
• Court: Alabama Court of Civil Appeals

Page 469

572 So.2d 469

JAMES RIVER CORPORATION v. Roscoe MAYS, Jr.

Civ. 7521.

Court of Civil Appeals of Alabama.

Sept. 26, 1990.

Rehearing Denied Nov. 14, 1990.

David Scott Wright and Thomas H. Nolan of Brown, Hudgens, Richardson, Mobile, for appellant.

William S. Poole, Jr., Demopolis, for appellee.

L. CHARLES WRIGHT, Retired Appellate Judge.

Roscoe Mays filed a complaint for workmen's compensation benefits in the Circuit Court of Marengo County against James River Corporation, alleging that he was owed benefits for the complete and permanent loss of hearing in both ears. Following an ore tenus proceeding, the trial court entered judgment in favor of Mays. James River appeals.

In July 1958 Mays commenced work as a millwright at the paper mill operated by Marathon Southern Corporation in Naheloa, Alabama. In 1962 while working at the mill under the employment of its new owner, American Can Company, Mays was injured when a valve on a recovery boiler opened and released 850 pounds of steam pressure, causing dizziness and ringing in his ears. At the time, Mays was diagnosed as having a bilateral perceptive deafness, or nerve deafness. A 1962 audiogram result was consistent with a traumatic hearing loss injury. Mays started wearing a hearing aid in 1962.

In 1978 Mays had another audiogram performed. In reviewing the results of that test, Ms. Moulin--Mays's expert--testified that Mays had gone from a moderate loss of hearing to a profound loss of hearing. A 1979 audiogram result showed that the right ear had remained the same but that there had been a slight deterioration in the left ear.

James River purchased the mill from American Can Company in July 1982. At the time of purchase Mays was employed at the mill as a millwright. Mays retained that position after the purchase. He continues to work at the mill as a millwright at the present time. It is not disclosed whether Mays received compensation benefits for the initial injury.

As a millwright, Mays works in various locations in the mill, repairing machinery. He testified that he repairs operating machinery as well as nonoperating machinery. He stated that when he repairs nonoperating machinery the adjacent machinery is ordinarily still running. He testified that he regularly works overtime, including shifts of twelve to sixteen hours.

Mays entered into evidence an audiometric report which established the noise levels in the mill from April 1983 to March 1988. The audiometric report showed extremely high decibel intensity of noise in the mill. Ms. Moulin testified that the Occupational Safety and Health Administration sets exposure to ninety decibels for an eight hour period as a point above which damage can occur. She testified that when the sound intensity increases by a factor of five decibels, then the amount of time that is permissible is halved. The audiometric report showed that a majority of the areas within the mill have a higher sound intensity than ninety decibels. The evidence established that Mays regularly worked in areas with high intensity levels. Ms. Moulin opined that the exposure to the intense noise level, coupled with the extended term of employment and the duration of exposure in the mill as related to the overtime hours and regular hours, caused the deterioration in Mays's hearing. She testified that he was clearly overexposed and that the wearing of the hearing aid exacerbated the overexposure.

Audiogram results for 1988 and 1989 were also entered into evidence. In reviewing the results, Ms. Moulin testified that the 1988 results reported awareness to speech stimuli. She testified that the 1989 results reported no comprehension of speech stimuli in either ear at any level.

The trial court made extensive findings of fact and law. It concluded that Mays suffered from an "occupational disease" in accordance with § 25-5-110, Code 1975. It assessed benefits for a "complete and permanent loss of hearing in both ears" as provided in § 25-5-57(a)(3)a.18.

Initially we must determine whether the trial court's treatment of the loss of hearing as an "occupational disease" is correct. James River contends that Mays's loss of hearing does not fall within the "occupational disease" statute because, it argues, the loss of hearing was precipitated by the 1962 accident and the hearing loss caused by that accident was not the result of an exposure over a period of time.

In a workmen's compensation case this court's review is limited to a determination of whether there is any legal evidence to support the trial court's conclusions. If, however, a reasonable view of the evidence supports the findings of the trial court, this court may then determine whether the correct legal conclusions have been drawn therefrom. Ex parte Patterson, 561 So.2d 236 (Ala.1990).

Section 25-5-110, Code 1975, provides the conditions for recovery under the Alabama Workmen's Compensation Law for an occupational disease. To be occupational, the disease must be due to hazards which are (1) in excess of those ordinarily incident to employment in general and (2) different in character from those found in the general run of occupations. Taylor v. United States Steel Corp., 456 So.2d 831 (Ala.Civ.App.1984).

The fact that an employee had a preexisting condition does not affect an award of compensation if the job combined with the preexisting condition to produce injury or death. Taylor.

To recover benefits under this view, the claimant must prove aggravation or combination. An occupational disease is not compensable if it is not caused or aggravated by the nature of the employment. Chrysler Corp. v. Henley, 400 So.2d 412 (Ala.Civ.App.1981).

In determining the loss of hearing to be an occupational disease, the trial court made the following findings:

"The large amount of overtime, in addition to regular work hours worked by the Plaintiff, Roscoe Mays, Jr., increased the duration of the exposure and therefore, the extent of hearing loss. The Plaintiff, Roscoe Mays, Jr., presented the testimony of Linda Moulin as to the noise levels in the plant and the causation of the noise induced deafness in the Plaintiff, Roscoe Mays, Jr., by such excessive noise levels. The Defendant, James River Corporation, stipulated to her qualifications as an expert witness.... Her testimony was not contradicted by any expert witness or witness of the Defendant, James River Corporation. Further, there is no evidence or testimony to contradict the factual basis, such as the noise levels in the mill, for her opinion as to causation. No other cause of the deafness of Plaintiff, Roscoe Mays, Jr., was asserted or can be found in the evidence or testimony."

The record supports the trial court's findings. The facts as detailed previously, and Ms. Moulin's testimony that the 1962 loss of hearing would have stabilized at that time without further noxious stimuli, lead us to the conclusion that Mays's loss of hearing was caused by his employment and that the loss was due to hazards in excess of those ordinarily incident to employment in general, peculiar to the occupation, and the result of exposure over a period of time. The trial court's delineation of the hearing loss as an occupational disease is correct.

Having determined that Mays had a compensable disease, the trial court, in accordance with § 25-5-119, found that he suffered a "complete and permanent loss of hearing in both ears" and that such loss was compensable under § 25-5-57(a)(3)a.18.

James River asserts that for purposes of § 25-5-57(a)(3)a.18, Mays had already suffered a "complete and permanent loss of hearing in both ears" as of 1979. It contends that it was error for the trial court to assess compensation against James River, arguing that the statute of limitations had already run prior to Mays's employment with James River.

There is no definition of "complete and permanent loss of hearing" in this state. James River suggests that we take a clinical approach and set a certain decibel level to indicate when a "complete and permanent loss of hearing" has occurred. It insists that this is the general mode utilized by most jurisdictions to determine complete loss of hearing. James River cites no authority for this proposition. In our research we have not found a jurisdiction that takes a clinical approach as suggested by James River. In fact, the jurisdictions that have addressed this issue have expressly rejected...