Opinion
NO. 2014-CA-001263-WC
06-05-2015
MAKER'S MARK DISTILLERY, INC. APPELLANT v. ROBERT CORBETT; HON. JEANIE OWEN MILLER, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: C. Patrick Fulton Louisville, Kentucky BRIEF FOR APPELLEE: Ched Jennings Louisville, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-12-01789
OPINION
AFFIRMING
BEFORE: COMBS, NICKELL, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Maker's Mark Distillery, Inc., petitions this Court to review a July 3, 2014, Opinion of the Workers' Compensation Board. We affirm.
Robert Corbett was employed by Marker's Mark from May 17, 1987 to March 17, 2012. Corbett filed a claim for workers' compensation benefits alleging a work-related hearing loss. The Administrative Law Judge (ALJ) found that Corbett suffered a work-related hearing loss and relied upon the medical opinion of the university evaluator, Dr. Barbara Eisenmenger, to support same. By opinion and award rendered February 10, 2014, the ALJ assessed Corbett a 4 percent permanent partial impairment for the hearing loss. However, the ALJ did not award Corbett income benefits because KRS 342.7305(2) only permits income benefits for hearing loss impairment of 8 percent or above. The ALJ did award Corbett medical expenses connected to the work-related hearing loss. Being dissatisfied with the ALJ's opinion and award, Maker's Mark sought review with the Board. By opinion entered July 3, 2014, the Board affirmed the ALJ's opinion and award. Maker's Mark petitions this Court to review the Board's opinion.
To begin, our review of an opinion of the workers' compensation board is limited. We only reverse the Board's opinion where "the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause a gross injustice." W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). In reviewing the Board's opinion, we necessarily look to the ALJ's opinion. Relevant to this appeal, the ALJ's findings of fact may only be disturbed if not supported by substantial evidence. And the ALJ, as fact-finder, possesses the sole discretion to judge the credibility of testimony and weight of evidence. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985).
Maker's Mark contends that the ALJ misconstrued KRS 342.7305(4) and that the ALJ's opinion is not supported by substantial evidence of a probative value. Maker's Mark maintains that KRS 342.7305(4) requires "actual scientific or medical proof of hazardous noise levels before liability" may be imposed. Maker's Mark Brief at 8. Maker's Mark asserts that Corbett failed to introduce objective medical evidence that he experienced hazardous and injurious noise while working at its warehouse and distillery. Maker's Mark particularly believes that Corbett's testimony and statements regarding noise exposure are insufficient under KRS 342.7305(4).
KRS 342.7305(4) reads:
When audiograms and other testing reveal a pattern of hearing loss compatible with that caused by hazardous noise exposure and the employee demonstrates repetitive exposure to hazardous noise in the workplace, there shall be a rebuttable presumption that the hearing impairment is an injury covered by this chapter, and the employer with whom the employee was last injuriously exposed to hazardous noise shall be exclusively liable for benefits.KRS 342.7305(4) provides that a rebuttable presumption is created when testing reveals a pattern of hearing loss caused by hazardous noise exposure and the employee demonstrates repetitive exposure to such noise in the workplace. Interestingly, the statute on its face does not mandate medical or scientific evidence to demonstrate that hazardous noise exists in the workplace.
Accordingly, we are guided in our interpretation of KRS 342.7305(4) by the Supreme Court's opinion in Grey's Construction v. Keeton, 385 S.W.3d 420 (Ky. 2012). Therein, the Supreme Court held that the ALJ properly relied upon the employee's testimony that he was exposed to loud and repetitive noises in the workplace for 35 years as a basis for finding an exposure to hazardous noise in the workplace. The Supreme Court viewed the employee's testimony of exposure to repetitive and hazardous workplace noises as substantial evidence. And, pivotal to our inquiry, the employee's testimony of workplace hazardous noises was the only evidence demonstrating same.
Hence, we do not interpret KRS 342.7305(4) as requiring medical or scientific proof to establish "repetitive exposure to hazardous noise in the workplace." Rather, the employee may prove repetitive and hazardous exposure with myriad direct and circumstantial evidence considered as a whole by the ALJ.
Additionally, the Board highlighted Dr. Eisenmenger's testimony where she opined that a report prepared by OSHA established that noise levels at certain areas in the distillery and warehouse were hazardous to workers:
Q: I noticed there is an entry on this which is Barrel Filler/Barrel Inspection. When I look at that it looks like Exposure. Do you see is [sic] 89.30?
A: Correct.
Q: I look down to another Barrel Filler/Barrel Inspection, 86.47?
A: Yeah. And those were the kinds of things that he was telling me about. I mean, like I said, I'm not real - - just like you don't understand audiology very well, I don't understand some of the things you have to do. But he was talking about having to beat on - - fix barrels.
You know, they're made, they have to be - so they're banging on them, banging around them. That was kind of the noise exposure he was kind of reporting to me and those are higher than 85.
Q: That's my question. Those actually come in on this one day as being higher than 85, the OSHA line that they draw in the sand which there needs to be some action taken by the employer to correct that situation. Is that not what the purpose of the evaluations are?
A: Yes.
Q: And as I look through here, there seems to be several that are above 85 and would seem to me that based upon this OSHA report remedial action should be taken by Maker's Mark to correct the noise levels there at that facility; is that correct?
A: Yes.
Q: Now, Doctor, the question I've got as well, the OSHA folks - and we don't know anything other than what this report says what they did that day or what level the operations were being run. There's days that they bottle more bottles of Maker's Mark than others. There's days that it's noisier than others.
But in particular you identify - based upon the history and everything Mr. Corbett told you, you do not feel that the natural aging process is the major component to this?
A: No. That's correct.
Q: You do not feel -
A: Yes, I do not feel that.
. . . .
Q: So this was very unusual to receive this type of report?
A: Yes, it is.Board's opinion at 9-11.
Q: But in this report it also confirms the high exposure levels at the work activities at Maker's Mark?
A: Uh-huh. Which I assume is why they're doing the hearing tests annually.
Upon review of the record, we conclude that Corbett established that he was exposed to repetitive and hazardous noises at Maker's Mark distillery and warehouse. This evidence consisted of Dr. Eisenmenger's expert opinion and Corbett's own testimony and constituted substantial evidence of a probative value.
In sum, we hold that the ALJ properly found that Corbett sustained a work-related hearing loss, and the Board did not commit error by affirming the ALJ's opinion and award.
For the foregoing reasons, we affirm the Opinion of the Workers' Compensation Board.
ALL CONCUR. BRIEF FOR APPELLANT: C. Patrick Fulton
Louisville, Kentucky
BRIEF FOR APPELLEE: Ched Jennings
Louisville, Kentucky