Myers v. State Workmen's Compensation Com'r

• Decision Date: 22 November 1977
• Docket Number: No. 13973,13973
• Citation: 160 W.Va. 766,239 S.E.2d 124
• Court: West Virginia Supreme Court
• Parties: Charles I. MYERS v. STATE WORKMEN'S COMPENSATION COMMISSIONER and U. S. Steel Corporation.

Page 124

239 S.E.2d 124

160 W.Va. 766

Charles I. MYERS v. STATE WORKMEN'S COMPENSATION COMMISSIONER and U. S. Steel Corporation.

No. 13973.

Supreme Court of Appeals of West Virginia.

Nov. 22, 1977.

Syllabus by the Court

1. "A claimant in a workmen's compensation case must bear the burden of proving his claim but in doing so it is not necessary to prove to the exclusion of all else the causal connection between the injury and the employment." Syllabus point 2, Sowder v. State Workmen's Compensation Commissioner, 155 W.Va. 889, 189 S.E.2d 674 (1972).

2. A noise-induced gradual hearing loss sustained by a covered employee, in the course of and resulting from his employment, is a personal injury within the meaning of W.Va. Code § 23-4-1.

Michael F. Gibson, Johnston, Holroyd & Gibson, Princeton, for appellant.

George W. S. Grove, Jr., Love, Wise, Robinson & Woodroe, Charleston, for appellees.

McGRAW, Justice:

This is an appeal by claimant, Charles I. Myers, from an order of the Workmen's Compensation Appeal Board which, in reversing the order of the State Workmen's Compensation Commissioner, held his claim noncompensable.

On June 12, 1974, claimant filed with the Commissioner an application for occupational disease benefits alleging that he had sustained a hearing loss during the course of and resulting from his employment with United States Steel Corporation.

The Commissioner ruled the claim compensable, the employer protested, protest hearings were held, and by order of July 9, 1976, the Commissioner ruled the claimant had sustained a compensable occupational disease. The employer appealed. By order of May 26, 1977, the Appeal Board, by a two to one vote, reversed the Commissioner and held the claim was not compensable. The Appeal Board made the following finding:

"The evidence of Dr. A. J. Paine indicates that claimant, 59 years of age, basically sustained a unilateral hearing loss described as a sensori-neural (sic) loss. The most common cause of this type of hearing loss is degeneration from advancing years.

"The evidence, in our opinion, does not support the Commissioner's findings."

Claimant is a retired coal miner with thirty-four years of experience in and around the mines. Except for four years on the tipple, he spent his working time underground as a pumper, roof bolter, shot firer, timberman and trackman.

He worked for United States Steel Corporation for a continuous twenty-three year period before his retirement in 1973, having been initially employed in May of 1950. For a three-year period, ending in 1955, he worked as a "shot firer," one whose job it was to set off series of dynamite shots six to eight times every shift.

From 1955 until 1973, he was employed as a roof bolter and operated an Acme pneumatic top-pinning or roof-bolting (stoper) machine. The machine which he operated drove metal bits into the roof of the mine as deep as seven feet. The uncontroverted record testimony was that the machine produced several sounds a minute louder than a gunshot and that there was "so much noise you couldn't hear nothing (else)." In addition, the machine had an automatic safety valve which made frequent loud noises when 110 p. s. i. air pressure was released at one to two minute intervals. Claimant further testified that he operated the roof-bolting machine in close proximity to a very noisy continuous mining machine.

The claimant testified that while his hearing "got worse in the last two years" he first noticed changes in his hearing "ten years ago." He said his foreman once brought this impairment to his attention and suggested that his hearing loss might be job-related.

The claimant's physician, an otolaryngologist, furnished the medical evidence in the case. In his preliminary report, the doctor noted that claimant had noticed a hearing loss over a long period of time which had become more marked or noticeable since his retirement. The doctor diagnosed the loss as sensorineural in both ears which was more marked in the right ear than the left and which was "probably in great part" a result of claimant's employment.

After testifying that claimant's condition was probably permanent, the doctor responded to the following hypothetical question:

"Doctor, assuming that this gentleman has a history of working in the close confines of an underground mine in close proximity of roof bolting machines, continuous miners, for approximately ten or I'm sorry fifteen to twenty years then prior to that had a history of working as a dynamite shooter do you have an opinion based upon reasonable medical certainty as to the causation of the hearing loss found in Mr. Myers?

"A. Well, it certainly would seem to fit into the pattern we see with those people who are exposed to this type of sound trauma."

The doctor testified that sensorineural hearing loss is the type of hearing loss which occurs when the hearing nerve, or any part of it, is damaged or degenerates. He testified that a sensorineural hearing loss can also result from viral illness, diabetes, arteriosclerosis, toxic substances, congenital defects and presbycusis.

The doctor further testified that ordinarily sensorineural hearing loss caused by industrial noise is relatively uniform as to each ear. But when he was asked if one or several of the explosions to which claimant was exposed over a period of time as a "shot-firer" could have caused this type of hearing loss, he stated that there was no question but that this could have occurred. The doctor was then asked, "And since it is worse in one ear, it is likely, isn't it?" He answered, "That would be my impression, yes."

The disposition of this case requires the application of the statutory provision which both defines occupational disease and sets forth the standard a claimant must meet in order to recover benefits under the law. W.Va. Code § 23-4-1 provides, in pertinent parts, as follows:

For the purposes of this chapter the terms 'injury' and 'personal injury' shall include . . . any . . . occupational disease, as hereinafter defined . . . .

For the purposes of this chapter, occupational disease means a disease incurred in the course of and resulting from employment. No ordinary disease of life to which the general public is exposed outside of the employment shall be compensable except when it follows an incident of occupational disease as defined in this chapter. Except in the case of occupational pneumonoconiosis, a disease shall be deemed to have been incurred in the course of or to have resulted from the employment only if it is apparent to the rational mind, upon consideration of all the circumstances (1) that there is a direct causal connection between the conditions under which work is performed and the occupational disease, (2) that it can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment, (3) that it can be fairly traced to the employment as the proximate cause, (4) that it does not come from a hazard to which workmen would have been equally exposed outside of the employment, (5) that it is incidental to character of the business and not independent of the relation of employer and employee, and (6) that it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence though it need not have been forseen or expected before...