CLOVERFORK MINING & EXCAVATING, INC. AUSTIN CRAIG; HON. RONALD MAY, ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION BOARD
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RENDERED:
AUGUST 30, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-000810-WC
CLOVERFORK MINING & EXCAVATING, INC.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. 00-WC-86785
v.
AUSTIN CRAIG;
HON. RONALD MAY, ADMINISTRATIVE LAW JUDGE;
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, AND MILLER, JUDGES.
MILLER, JUDGE:
Cloverfork Mining & Excavating, Inc., asks us to
review an Opinion of the Workers' Compensation Board (Board)
rendered March 20, 2002.
342.290.
Kentucky Revised Statutes (KRS)
We affirm.
Craig filed an application for benefits with the
Department of Workers Claims on November 13, 2000.
It was
stipulated that Craig had been exposed to loud noises on the job
for approximately thirty years.
His last date of employment with
Cloverfork Mining & Excavating, Inc., (Cloverfork) was on July 2,
1999.
Craig testified that he began noticing hearing problems
approximately eight years prior to leaving work in July of 1999.
He testified that these problems worsened with time, especially
during the last four years of employment.
Two years before his
last date of employment, Craig stated he began losing his balance
and falling.
He also began to experience ringing in his ears.
As a result, he was treated by his family physician, one Dr. Jai.
The record indicates that Dr. Jai told Craig that his loss of
balance was due to inner ear problems, but at no time told Craig
that the cause of his hearing condition was work-related.
The undisputed evidence indicates that Dr. Samir Guindi
was the first physician to inform Craig that his hearing problems
were probably related to noise exposure on the job, and were,
therefore, work-related.
1, 1999.
Dr. Guindi evaluated Craig on November
Upon receiving Dr. Guindi's report, Craig's attorney
sent a letter to Cloverfork by certified mail dated November 12,
1999.
It notified Cloverfork that Craig had been medically
diagnosed as suffering from a work-related hearing impairment,
and that a claim for disability benefits would soon be filed.
On May 7, 2001, the Administrative Law Judge (ALJ)
found that Craig suffered a 17.5 percent permanent partial
disability.
The ALJ also awarded Craig medical benefits with
regard to his work-related hearing loss.
In granting this award,
the ALJ characterized Craig's cause of action as an occupational
disease for the purposes of notice and the statute of
limitations.
Cloverfork then appealed to the Board of Workers'
Compensation.
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In an unanimous decision rendered October 10, 2001, the
Board vacated in part the ALJ's opinion and award.
The Board
determined that it was error for the ALJ to treat Craig's cause
of action as an occupational disease rather than a cumulative
trauma injury.
Upon remand, the ALJ determined that Craig was
aware that he had suffered a work-related hearing loss during the
last eight years he was employed.
In a December 3, 2001 order,
the ALJ ruled that Craig failed to timely file his application
for benefits, and that Craig failed to provide Cloverfork with
timely notice of injury.
Craig then pursued an appeal to the
Board.
Relying upon Hill v. Sextet Mining Corporation, Ky., 65
S.W.3d 503 (2001), the Board reversed the ALJ's December 3, 2001
order, and reinstated the ALJ's original award.
Cloverfork has
now asked us to review the decision of the Board.
Cloverfork contends that the Board committed error by
reversing the ALJ's December 3, 2001 order.
Specifically,
Cloverfork believes that there was substantial evidence to
support the ALJ's findings that Craig failed to provide timely
notice of his injury and failed to timely file an application for
benefits.
Upon review of the Board's decision, we must conclude
that the Board correctly applied the law to the facts at hand.
In fact, we agree with the Board's reasoning and adopt it herein:
In Hill, the Court determined it was
obvious that the claimant associated his
cumulative trauma symptoms with his work long
before being informed by a physician that his
condition was work-related. Nonetheless, the
Supreme Court determined that under such
circumstances, an injured worker is not
required to self-diagnose. Consequently, the
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clocking of the statute of limitations and
the requirement to give due and timely notice
in cumulative trauma cases, such as the case
sub judice, does not arise until the claimant
is informed by a physician that his work is
gradually causing the harmful changes
alleged. Id. at 507.
Our review of the evidence in Craig's
claim indicates the petitioner was not
actually informed by a physician that his
hearing loss was work-related until November
1999. He then immediately provided written
notice of that fact to Cloverfork. His
application for adjustment of hearing loss
claim was filed approximately one year later.
Consequently, based upon these irrefutable
facts and the Supreme Court's guidance in
Hill v. Sextet Mining Corp., Id., as a matter
of law, we must now reverse ALJ May's
subsequent ruling on remand.
In the foregoing, we believe the Board properly interpreted Hill,
and properly applied Hill to the facts at hand.
Accordingly, we
are of the opinion that Craig timely filed his application for
benefits, and timely gave notice of injury to Cloverfork under
KRS 342.185.
For the foregoing reasons, the Opinion of the Workers'
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, AUSTIN
CRAIG:
Kimberly D. Newman
William E. Brown, II
Lexington, Kentucky
Otis Doan, Jr.
Harlan, Kentucky
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