McCuiston v. Addressograph-Multigraph Corp.

• Decision Date: 07 July 1983
• Docket Number: No. 627PA82,ADDRESSOGRAPH-MULTIGRAPH,627PA82
• Citation: 308 N.C. 665,303 S.E.2d 795
• Parties: Charles W. McCUISTON, Jr., Employee, v.CORPORATION, Employer, and Liberty Mutual Insurance Company, Carrier.
• Court: North Carolina Supreme Court

Page 795

303 S.E.2d 795

308 N.C. 665

Charles W. McCUISTON, Jr., Employee, v. ADDRESSOGRAPH-MULTIGRAPH CORPORATION, Employer and Liberty Mutual Insurance Company, Carrier.

No. 627PA82.

Supreme Court of North Carolina.

July 7, 1983.

James W. Workman, Jr., Greensboro, Lore & McClearen by R. James Lore, and Hassel & Hudson by Robin E. Hudson, Raleigh, for plaintiff-appellant.

Smith Moore Smith Schell & Hunter by J. Donald Cowan, Jr. and Caroline Hudson, Greensboro, for defendants-appellees.

John C. Brooks, Commissioner of Labor, Raleigh, for the State of North Carolina, amicus curiae.

MARTIN, Justice.

The sole question for review is whether the Court of Appeals erred in holding that as a part of his prima facie case plaintiff must prove that the sound which caused his hearing loss was of intensity of 90 dBA or more. N.C.Gen.Stat. § 97-53(28)(a) (1979). We hold that the Court of Appeals did so err, and we reverse and remand.

N.C.G.S. 97-53(28) provides that an employee may recover compensation for "[l]oss of hearing caused by harmful noise in the employment." The statute continues:

a. The term "harmful noise" means sound in employment capable of producing occupational loss of hearing as hereinafter defined. Sound of an intensity of less than 90 decibels, A scale, shall be deemed incapable of producing occupational loss of hearing as defined in this section.

b. "Occupational loss of hearing" shall mean a permanent sensorineural loss of hearing in both ears caused by prolonged exposure to harmful noise in employment. Except in instances of preexisting loss of hearing due to disease, trauma, or congenital deafness in one ear, no compensation shall be payable under this subdivision unless prolonged exposure to harmful noise in employment has caused loss of hearing in both ears as hereinafter provided.

N.C.Gen.Stat. § 97-53(28)(a), (b) (1979).

In the present case, neither plaintiff nor defendants have introduced any evidence concerning the intensity level of the sound which caused plaintiff's hearing loss. However, all of the evidence shows that Mr. McCuiston in fact suffered from a loss of hearing and that the physical cause of this infirmity was prolonged exposure to harmful noise in his workplace.

In order to be eligible for compensation, an employee must establish that he suffered from an "occupational loss of hearing," i.e., "a permanent sensorineural loss of hearing in both ears caused by prolonged exposure to harmful noise in employment." N.C.Gen.Stat. § 97-53(28)(b) (1979). The term "harmful noise" is defined as "sound in employment capable of producing occupational loss of hearing ...." N.C.Gen.Stat. § 97-53(28)(a) (1979). The question dispositive of this appeal is whether the following part of N.C.G.S. 97-53(28)(a) is an element of plaintiff's prima facie case, or whether it is an affirmative defense for the employer: "Sound of an intensity of less than 90 decibels, A scale, shall be deemed incapable of producing occupational loss of hearing as defined in this section."

We hold that in order to establish a prima facie case plaintiff must prove: (1) loss of hearing in both ears which was (2) caused by harmful noise in his work environment. Upon so doing, the burden of proof shifts to the employer. If the employer then proves that the sound which caused plaintiff's hearing loss was of an intensity of less than 90 decibels, A scale, plaintiff cannot recover. In the present case plaintiff established a prima facie case for recovery; therefore, to avoid liability defendants had to prove that the sound to which plaintiff was exposed in the workplace was of an intensity of less than 90 dBA. Defendants failed to so do. Judgment must be entered for the plaintiff.

This interpretation of N.C.G.S. 97-53(28) is consistent with the General Assembly's creation of a statutory means by which an employee may recover compensation for loss of hearing caused by harmful noise in the workplace. It is unreasonable to assume that the legislature intended an employee to bear the burden of making noise-level measurements during his employment in order to lay the groundwork for a workers' compensation claim. Such an interpretation of the statute would make it virtually impossible for an employee to successfully bring suit for compensation for a hearing loss, due to the difficulty he would encounter in attempting to make measurements of sound on his employer's premises. A construction of the statute which defeats its purpose--to provide a means by which employees can recover for injury due to harmful workplace noise--would be irrational and will not be adopted by this Court. See In re Banks, 295 N.C. 236, 244 S.E.2d 386 (1978); State v. Hart, 287 N.C. 76, 213 S.E.2d 291 (1975); Hobbs v. Moore County, 267 N.C. 665, 149 S.E.2d 1 (1966). We note that no presumption arises if the noise intensity level is 90 decibels or greater. Claimant must still prove a loss of hearing caused by harmful noise in the employment. The only reasonable interpretation of the legislature's intent in enacting the second sentence of N.C.G.S. 97-53(28)(a) is that it meant to allow an employer to avoid liability even if workplace noise is the physical cause of an employee's loss of hearing if the employer proves that the sound was of intensity less than 90 dBA.

That the General Assembly chose to permit this affirmative defense is consistent with the fact that 90 dBA is generally considered a threshold of safe noise under federal and state occupational health and safety standards. ¹ Under such noise standards many employers are required to maintain a continuing effective hearing conservation program for employees exposed to occupational noise levels of 85 dBA or more. ² 29 U.S.C. §§ 651-667 (1975); 29 C.F.R. § 1910.95(c) (1982); N.C.Gen.Stat. § 95-131 (1981); 13 NCAC 7C .0101(a) (1976) (and 1981 amendments) (adopting 29 C.F.R. § 1910.95). Even though under certain circumstances sound of intensity less than 90 dBA may cause loss of hearing, it is generally considered a safe noise level. Under N.C.G.S. 97-53(28) the General Assembly allows employers who maintain workplace noise...