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RED BARON COAL COMPANY, et al. v. HESS




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RED BARON COAL COMPANY, et al.

v.

HESS


COURT OF APPEALS OF VIRGINIA

Present: Judges Bumgardner, Humphreys and Clements

Argued at Salem, Virginia

Record No. 1882-02-3

RED BARON COAL COMPANY AND

AMERICAN ZURICH INSURANCE COMPANY

v.

HAROLD L. HESS

 

MEMORANDUM OPINION[1]
BY JUDGE ROBERT J. HUMPHREYS

OCTOBER 21, 2003

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Michael P. Del Bueno (Ralph L. Whitt, Jr.; Whitt &
Associates, on

briefs), for appellants.

Gerald F. Sharp (Gerald F. Sharp, P.C., on brief), for appellee.

Red Baron Coal Company and American Zurich Insurance Company
(employer) appeal

an award by the Workers’ Compensation Commission (commission) of
compensation and

medical benefits for occupational hearing loss to Harold L. Hess
(claimant). On appeal,

employer contends the commission erred in finding (1) claimant’s
pre-existing hearing loss was a

compensable occupational disease, (2) claimant was injuriously
exposed while working for

employer, and (3) claimant timely filed his claim for benefits.
For the reasons stated below, we

reverse the decision and award of the commission.

I. BACKGROUND

The relevant evidence in this case is not in dispute. Claimant
worked in the coal mining

business for approximately twenty-nine years. From 1978 to 1984,
he worked for Three H Coal

Company and from 1984 to 1994, he was employed by Middle Energy
Coal Company. Claimant

began working for employer in 1995. He testified that his work
with employer was "similar to"

and "as noisy" as his work at the other two mines. He
further testified that, although he was

consistently exposed to hazardous noise throughout his
twenty-nine years of employment in coal

mining, he did not wear hearing protection. Claimant last worked
for employer on September

19, 2000.

On March 6, 2001, Dr. Jeffrey P. Robbins, claimant’s physician,
informed claimant that

his loss of hearing was work related. Claimant filed a
"Notice of Claim and Communication of

Occupational Induced Hearing Loss" on March 19, 2001.

On or about August 2, 2001, employer propounded written
questions to Dr. Robbins.

Asked if "Harold Hess or anyone on his behalf ever advise[d
him] that Harold Hess knew or

believed as early as sometime in the 1980′s that his hearing
loss was caused by his work in the

coal mines," Dr. Robbins responded, "Yes." At the
hearing before the deputy commissioner,

claimant testified he did not recall making that statement to
Dr. Robbins. He testified he first

noticed his hearing loss in the four or five years before he
began treating with Dr. Robbins in

March of 2001. He stated that when he first noticed the loss, he
did not believe it was caused by

his employment, but "figured it might have been old age,
starting to get old."

The pertinent medical evidence in the case came from Dr.
Robbins, who examined

claimant, obtained a history from him, and conducted an
audiometric test of his hearing. In his

March 6, 2001 report, Dr. Robbins stated that claimant suffered
from a "medically significant

high and mid[-]frequency sensorineural hearing loss," of
53.7 decibels in his right ear and 47.5

decibels in his left ear. Noting that claimant had a "small
conductive loss of 5-10 decibels" in his

right ear that could not "be attributed to noise exposure
and [was] more compatible with his

history of frequent ear infections[,]" Dr. Robbins
concluded that claimant had a hearing loss of

47.5 decibels, in both ears, attributable to industrial noise
exposure.

Dr. Robbins summarized his findings in his report as follows:

Mr. Harold Hess is a non-working 51 year-old man whose only

reported or suspected noise exposure has occurred as a direct

consequence of thirty-five years of unprotected, underground
coal

mining noise exposure experienced in the employ of multiple

different mining companies. The last five years of his
employment

was with Red Baron Coal Company. Based on this long history of

industrial noise exposure, this gentleman has a medically

significant high and mid frequency sensorineural hearing loss

consistent and compatible with the damaging effects of noise

exposure and characterized by an adjusted four frequency pure

tone average of 47.5 decibels in both ears. Given the above

historical information and findings on physical and audiologic

exam, it is my best judgment and considered otologic opinion
that

this man’s very considerable high and mid frequency hearing

impairment has occurred as a direct consequence of thirty-five

years of unprotected, underground coal mining noise exposure.

Dr. Robbins counseled claimant "to avoid or attenuate any
predictable future noise exposure."

In its written questionnaire of August 2, 2001, employer also
propounded the following

questions to Dr. Robbins:

Without a previous hearing test, can you say to a reasonable
degree

of medical probability that the sensorineural hearing loss you

observed on or about March 6, 2001 were [sic] measurably worse

than the hearing loss present before Harold Hess began working
at

Red Baron Coal Company approximately 5 years ago?

If so, how much worse in each ear by average decibels lost in
the

four speech frequencies compared to before Harold Hess began

working at Red Baron Coal Company?

Dr. Robbins’ written response to the first question was
"No." In response to the second question,

he wrote:

In my best judgment, the amount of hearing loss incurred during

this man’s employment with Red Baron Coal Co., was in all

probability minimal to negligible. (Please see highlights on

enclosure.) This man has a very significant noise induced
hearing

loss, but I believe the responsibility for this loss rests

overwhelmingly with his previous employers.

The attached enclosure was a portion of a 1999 article from the
Journal of Occupational Hearing

Loss entitled "Differential Diagnosis in Occupational
Hearing Loss Claims." Dr. Robbins had

underlined the following two passages in the article:
"[Occupational hearing loss] is never

progressive after a maximum loss is incurred approximately 10 to
12 years after initial

exposure;" and, "It is generally accepted that after
10 or 15 years on the same job, a person’s

hearing loss stabilizes and does not worsen due to
ongoing exposure to noise." (Emphases

added).

By opinion dated December 7, 2001, the deputy commissioner
denied claimant’s claim

for benefits, concluding claimant had failed to establish by
clear and convincing evidence that he

suffered a compensable hearing loss as a consequence of his
employment with employer, as

required by Code ? 65.2-401. In reaching that conclusion, the
deputy commissioner found that

Dr. Robbins had opined that "claimant’s hearing loss did
not result from his exposure to noise

while working for this employer."

By opinion dated June 25, 2002, the commission reversed the
deputy commissioner’s

decision, holding that claimant proved an aggravation of his
pre-existing occupational disease as

a result of his underground noise exposure while working for
employer and was thus entitled to

benefits. In reaching that decision, the commission found that,
in stating claimant’s hearing loss

while with employer was "minimal to negligible," Dr.
Robbins had opined claimant suffered

"some hearing loss, albeit nominal," as a consequence
of his employment with employer. The

commission also found that claimant’s March 19, 2001 claim was
timely filed because the

diagnosis and communication of occupational hearing loss
occurred on March 6, 2001, when

Dr. Robbins examined claimant.

It is from the commission’s opinion that employer now appeals.

II. ANALYSIS

A. Standard of Review

"On appeal, we view the evidence in the light most
favorable to the party prevailing

below." Tomes v. James City (County Of) Fire, 39 Va. App.
424, 429, 573 S.E.2d 312, 315

(2002). "If supported by credible evidence, the factual
findings of the commission are binding

on appeal." Id. at 430, 573 S.E.2d at 315 (citing Code ?
65.2-706(A)). This is so "even though

there is evidence in the record to support a contrary
finding." Morris v. Badger Powhatan/Figgie

Int’l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986).
"In determining whether credible

evidence exists, the appellate court does not retry the facts,
reweigh the preponderance of the

evidence, or make its own determination of the credibility of
the witnesses." Wagner Enters.,

Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
However, "we review questions

of law de novo." Rusty’s Welding Serv. v. Gibson, 29
Va. App. 119, 127, 510 S.E.2d 255, 259

(1999) (en banc).

B. Occupational Hearing Loss

Relying on Ashland Oil Co. v. Bean, 225 Va. 1, 300 S.E.2d 739
(1983), as standing for

the proposition that an aggravation of an ordinary disease of
life is not compensable, employer

argues that, because hearing loss has been categorized by the
legislature as an ordinary disease of

life, the aggravation of claimant’s pre-existing hearing loss
while working for employer cannot

be compensable, as a matter of law. Thus, employer contends, the
commission erred in finding it

so. We disagree.

Code ? 65.2-400(A) defines an "occupational disease"
as "a disease arising out of and in

the course of employment, but not an ordinary disease of life to
which the general public is

exposed outside of the employment." The statute
specifically provides that hearing loss is not an

occupational disease, but a non-compensable ordinary disease of
life. Code ? 65.2-400(C).

Hearing loss, however, may be treated as a compensable
occupational disease if there is "clear

and convincing evidence . . . [t]hat the [hearing loss] exists
and arose out of and in the course of

employment[,] . . . did not result from causes outside of the
employment," and "is characteristic

of the employment and was caused by conditions peculiar to such
employment." Code

? 65.2-401.

Although our Supreme Court held in Ashland Oil Co., 225 Va. at
3, 300 S.E.2d at 740,

that a disability resulting from the aggravation of a
pre-existing ordinary disease of life is not

compensable, "the evidence in that case showed that the
employee had a bunion before she

began working and that her job merely aggravated the
pre-existing condition." Medlin v. County

of Henrico Police, 34 Va. App. 396, 411, 542 S.E.2d 33, 41
(2001). Thus, the Supreme Court

held "it was not an occupational disease, and only
disabilities resulting from occupational

diseases are compensable." Ashland Oil Co., 225 Va. at 3,
300 S.E.2d at 740.

Here, credible evidence shows that claimant began to notice his
hearing loss four or five

years before he began treating with Dr. Robbins in March of
2001. It also shows that claimant’s

coal mining employment began in 1978. Throughout the entire
period of this employment,

claimant was exposed to loud underground industrial noise. Dr.
Robbins found that claimant’s

47.5-decibel hearing loss for both ears "occurred as a
direct consequence of thirty-five years of

unprotected, underground coal mining noise exposure."

Thus, the evidence in this case conclusively establishes that
claimant’s 47.5-decibel

hearing loss arose out of and in the course of his coal mining
employment and did not arise from

causes outside of the employment. Furthermore, loud industrial
noise was a condition peculiar to

claimant’s underground coal mining work and his noise-induced
hearing loss was a consequence

characteristic of such employment. Therefore, we find no error
in the commission’s conclusion

that the aggravation of claimant’s hearing loss while working
for employer was a compensable

occupational disease.

C. Injurious Exposure

Employer next contends claimant failed to prove by clear and
convincing evidence that

he suffered "injurious exposure" from industrial noise
while working for employer. Employer

argues that claimant’s hearing loss did not measurably worsen
after he began employment with

employer. At most, employer argues, the amount of hearing loss
incurred by claimant while

working for employer was "minimal to negligible." We
agree with employer that the evidence

presented was insufficient to support the commission’s finding
that claimant’s pre-existing

hearing loss was aggravated during his employment with employer
and, thus, that his last

"injurious" exposure occurred while working there.[2]

Liability under the Workers’ Compensation Act attaches to the
employer claimant was

last employed with when last injuriously exposed to the hazards
of his occupational disease,

"prior to [the] ‘first communication of the
diagnosis.’" Cooper v. Mary E. Coal Corp., 215 Va.

806, 809, 214 S.E.2d 162, 165 (1975). An exposure is deemed
"injurious" if it is an exposure "to

the causative hazard of such disease which is reasonably
calculated to bring on the disease in

question." Code ? 65.2-404(B). In Caudle-Hyatt, Inc. v.
Mixon, 220 Va. 495, 500, 260 S.E.2d

193, 195 (1979), our Supreme Court held that a claimant may
prove injurious exposure "by

establishing actual causation or aggravation of the disease or
by showing that the exposure was

of such duration and intensity that it generally causes the
disease in question, even though actual

causation or aggravation cannot be established in the claimant’s
case."

Citing Caudle-Hyatt, Inc., the commission held that claimant
established an "aggravation

of the disease" because he proved "he suffered some
hearing loss as a consequence of his

employment with . . . employer." Thus, the commission
concluded, claimant was entitled to

compensation benefits "because he proved that his hearing
deteriorated as a result of his noise

exposure" while working for employer. We find no credible
evidence in the record to support

this finding.

The record here demonstrates that Dr. Robbins concluded that
claimant’s 47.5-decibel

hearing loss "occurred as a direct consequence of
thirty-five years of unprotected, underground

coal mining noise exposure experienced in the employ of multiple
different mining companies."

Dr. Robbins also noted that, of those thirty-five years of
employment in coal mines, claimant

spent the last five working for employer. Further, in response
to the written questionnaire

propounded by employer, Dr. Robbins stated that "the amount
of hearing loss incurred during

[claimant's] employment with [employer] was in all probability
minimal to negligible."

However, Dr. Robbins explicitly qualified this statement by
directing the reader to the attached

journal article. Dr. Robbins highlighted two significant
statements in that article. One statement

expressed that "[occupational hearing loss] is never progressive
after a maximum loss is incurred

approximately 10 to 12 years after initial exposure."
(Emphasis added). The other stated "[i]t is

generally accepted that after 10 or 15 years on the same job, a
person’s hearing loss stabilizes and

does not worsen due to ongoing exposure to noise."
(Emphasis added). Moreover, Dr. Robbins

answered "No," to the question asking whether he could
opine, "to a reasonable degree of

medical probability" that the hearing loss incurred by
claimant while working with employer was

"measurably worse" than what claimant had sustained in
the years prior to his work with

employer.

Other than claimant’s own testimony that his work environment
with employer was "as

noisy" as the work environments he had been exposed to in
the past, as well as Dr. Robbins’

advice to claimant to avoid future noise exposure, this is the
sum total of the evidence supporting

claimant’s contention that his hearing loss was aggravated by
his employment with employer.[3]

However, none of this evidence proved, either directly or
inferentially, that claimant sustained

any additional hearing loss while working for employer. Indeed,
although Dr. Robbins opined

that claimant sustained what amounted to a "minimal or
negligible" loss during that time, he

specifically qualified this statement with an additional
statement that hearing loss "does not

worsen" after 10-15 years of initial exposure. He further
stated he could not opine that claimant

suffered any "measurable" hearing loss during that
time. Thus, Dr. Robbins’ opinion, when

considered as a whole and in the context in which he rendered
it, conclusively states that

claimant suffered no measurable hearing loss as a result of
working for employer.[4]Such

evidence cannot support an award of benefits based upon a
finding of aggravation, and thereby

"injurious exposure," because it proves no actual
aggravation.

Accordingly, finding no credible evidence to support the
commission’s factual

determinations that claimant’s hearing loss was aggravated
during his employ with employer and,

thus, that his last injurious exposure to the "causative
hazard of such disease" occurred during

that time, we reverse the commission’s decision and award, and
dismiss.[5]

Reversed and dismissed.

Clements, J., concurring, in part, and dissenting, in part.

I concur with the majority’s holding that the commission did not
err in concluding that the

aggravation of claimant’s hearing loss was a compensable
occupational disease. However, I

disagree with the majority’s conclusion that the record is
devoid of credible evidence from which

the commission could have found that claimant "suffered
some hearing loss as a consequence of

his employment with . . . employer." Accordingly, I
respectfully dissent from the majority’s

holding that claimant failed to prove he received his last
injurious exposure while working for

employer.

As noted by the majority, to receive workers’ compensation
benefits from employer,

claimant had to establish by a preponderance of the evidence
that "he was last injuriously

exposed" while working for employer. Blue Diamond Coal Co.
v. Pannell, 203 Va. 49, 53, 122

S.E.2d 666, 669 (1961); see Code ? 65.2-404(A) ("When an
employee has an occupational

disease that is covered by this title, the employer in whose
employment he was last injuriously

exposed to the hazards of the disease . . . shall alone be
liable therefor, without right to

contribution from any prior employer . . . ."). By
statutory definition, an "injurious exposure" to

an occupational disease is "an exposure to the causative
hazard of such disease which is

reasonably calculated to bring on the disease in question."
Code ? 65.2-404(B). Injurious

exposure may be proved by either "establishing actual
causation or aggravation of the disease or

. . . showing that the exposure was of such duration and
intensity that it generally causes the

disease in question, even though actual causation or aggravation
cannot be established in the

claimant’s case." Caudle-Hyatt, Inc. v. Mixon, 220 Va. 495,
500, 260 S.E.2d 193, 195 (1979).

In this case, the commission determined that claimant was
injuriously exposed while

working for employer. In reaching that decision, the commission
found as follows:

The claimant did not present any evidence in the form of tests
that

compared his hearing ability before working at Red Baron with
his

hearing ability after working there. However, Dr. Robbins wrote

that the claimant’s hearing loss at Red Baron was "minimal
to

negligible," thereby opining that the claimant had some
hearing

loss, albeit nominal, at Red Baron. Thus, the claimant proved an

"aggravation of the disease" because he suffered some
hearing loss

as a consequence of his employment with this employer.

The commission’s determination of whether a claimant was
injuriously exposed while

working for an employer is a finding of fact. See Piedmont Mfg.
Co. v. East, 17 Va. App. 499,

510, 438 S.E.2d 769, 776 (1993). Under settled principles of
appellate review,

[t]he factual findings of the commission are conclusive and

binding on appeal if supported by credible evidence in the
record.

"The fact that there is contrary evidence in the record is
of no

consequence if there is credible evidence to support the

commission’s findings." Wagner Enters., Inc. v. Brooks, 12

Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). "This rule
applies

when an expert’s opinion contains internal conflicts."
Greif

Companies/Genesco, Inc. v. Hensley, 22 Va. App. 546, 552, 471

S.E.2d 803, 806 (1996). "Likewise, the [c]ommission’s

conclusions upon conflicting inferences, legitimately drawn from

proven facts, are equally binding on appeal." Watkins v.
Halco

Eng’g, Inc., 225 Va. 97, 101, 300 S.E.2d 761, 763 (1983).
"In

determining whether credible evidence exists, the appellate
court

does not retry the facts, reweigh the preponderance of the

evidence, or make its own determination of the credibility of
the

witnesses." Wagner Enters., Inc., 12 Va. App. at 894, 407
S.E.2d

at 35.

Henrico County Sch. Bd. v. Etter, 36 Va. App. 437, 443-44, 552
S.E.2d 372, 375 (2001) (citation

omitted). Applying these principles in Etter, we concluded that,
"[a]lthough some of [the

treating physician's] responses and statements . . . may
arguably conflict with each other, the

commission, as fact finder, was entitled to determine the
weight, meaning, and credibility to give

his respective responses and statements and to reconcile any
possible conflicts therein." Id. at

445, 552 S.E.2d at 375.

Similarly, in this case, when viewed in the light most favorable
to claimant, who

prevailed before the commission, see Allen & Rocks, Inc. v.
Briggs, 28 Va. App. 662, 672, 508

S.E.2d 335, 340 (1998), Dr. Robbins’ responses and statements
were arguably in conflict. In his

March 6, 2001 report, Dr. Robbins opined that the 47.5-decibel
hearing loss suffered by claimant

specifically "occurred as a direct consequence of
thirty-five years of unprotected, underground

coal mining noise exposure," the last five of which were
spent working for employer.

Dr. Robbins also indicated in that report that he counseled
claimant "to avoid or attenuate any

predictable future noise exposure." Then, in response to
employer’s August 2, 2001 written

questionnaire, Dr. Robbins acknowledged that, without a
pre-employment hearing test, he could

not quantify a precise measurement for the worsening of
claimant’s hearing loss as a result of his

employment with employer. He surmised, however, that "the
amount of hearing loss incurred

during [claimant's] employment with [employer] was in all
probability minimal to negligible,"

adding that the responsibility for claimant’s "very
significant noise induced hearing loss . . .

rest[ed] overwhelmingly with his previous employers." Dr.
Robbins’ questionnaire responses

were accompanied by an article on occupational hearing loss in
which the doctor had underlined

two passages indicating that occupational hearing loss "is
never progressive after a maximum

loss is incurred approximately 10 to 12 years after initial
exposure" and that it "is generally

accepted that after 10 or 15 years on the same job, a person’s
hearing loss stabilizes and does not

worsen due to ongoing exposure to noise."

In light of these arguably conflicting statements by Dr.
Robbins, the commission was

entitled to resolve the internal conflict in the expert evidence
in favor of claimant and conclude,

as it did, that Dr. Robbins’ medical opinion was that, while
claimant’s industrially related hearing

loss was primarily caused by his exposure to noise during his
prior coal mining jobs, claimant

suffered some hearing loss due to his employment with employer.

Credible evidence supports this finding. For instance, in
stating that claimant’s hearing

loss was a "direct consequence" of claimant’s exposure
to industrial noise for thirty-five years,

Dr. Robbins drew no distinction between the first thirty years
and the last five years of claimant’s

employment in underground mines. Rather, he indicated solely
that claimant’s hearing loss was

due to the totality of his exposure to industrial noise over the
entire thirty-five years of his

employment in coal mining, including the last five years with
employer. Additionally, in

directing claimant to avoid exposure to industrial noise in the
future, Dr. Robbins clearly

believed that claimant’s hearing loss had not fully stabilized
at that point and could be made

worse by further exposure. Otherwise, no such directive would
have been necessary.

Moreover, while it is true that Dr. Robbins included in his
response to the questionnaire

an article stating it was "generally accepted" that
occupational hearing loss did not worsen after

"maximum" hearing loss was "incurred
approximately 10 to 12 years after initial exposure,"

Dr. Robbins also expressed the opinion in his response that
claimant incurred a "minimal to

negligible" amount of hearing loss while working for
employer. In my view, the commission

could reasonably interpret that statement as reflecting the
doctor’s belief that claimant suffered

some small, but undeniably positive, amount of hearing loss
while working for employer. Cf.

Etter, 36 Va. App. at 445-46, 552 S.E.2d at 375-76 (holding that
the treating physician’s

testimony that the claimant’s industrial accident contributed to
the claimant’s disability "to the

minutest degree"—meaning "to some small degree"—was
sufficient to prove the accident caused

the claimant’s disability). This view is buttressed by Dr.
Robbins’ additional statement that the

responsibility for claimant’s hearing loss rested
"overwhelmingly" with claimant’s previous

employers. Because "overwhelmingly" falls short of
"entirely," the commission could

reasonably infer from the doctor’s statement that he believed
some of the responsibility for

claimant’s hearing rested with employer. The fact that Dr.
Robbins believed the majority of

claimant’s hearing loss was incurred while claimant was working
for earlier employers does not

negate the fact that claimant’s condition was aggravated to some
degree while working for

employer.[6]

Thus, I believe that Dr. Robbins’ medical records and opinions,
coupled with claimant’s

uncontradicted testimony that his work with employer was similar
to and as noisy as his previous

coal mining jobs, constitute credible evidence to support the
commission’s factual determination

that claimant was injuriously exposed to industrial noise while
working for employer. Hence, I

would conclude that we are bound by that finding on appeal.

Employer also asserts, on appeal, that claimant knew in the
1980s that his hearing loss

was caused by working in coal mines. Therefore, employer
maintains, claimant’s claim of

occupational hearing loss, filed March 19, 2001, was not filed
within two years after receiving

communication of the diagnosis of hearing loss in the 1980s, as
required by Code

? 65.2-406(A)(5), and is time barred. I disagree.

As relevant to the facts of this case, Code ? 65.2-406(A)(5)

provides that the right to compensation for occupational
diseases

shall be forever barred unless a claim is filed within two years
after

a diagnosis of the disease is first communicated to the
employee.

Hence, "once an employee receives a communication of an

occupational disease, it is incumbent upon him to file a
claim"

within two years of that communication.

Tomes v. James City (County of) Fire, 39 Va. App. 424, 430, 573
S.E.2d 312, 315 (2002)

(quoting Parris v. Appalachian Power Co., 2 Va. App. 219,
225-26, 343 S.E.2d 455, 458-59

(1986) (footnote omitted)).

Here, employer’s statute of limitations defense rests on Dr.
Robbins’ response to its

questionnaire that he was told that claimant knew or believed as
early as in the 1980s that his

hearing loss was caused by his work in the coal mines. In
rejecting this argument, the

commission accepted claimant’s testimony that he did not recall
making such a statement to

Dr. Robbins and that he thought his hearing loss was caused by
"old age," not by his work in the

mines.

Because credible evidence supports the commission’s factual
finding that the first

communication to claimant of the diagnosis of occupational
hearing loss occurred on March 6,

2001, when Dr. Robbins examined him, I would hold the commission
did not err in ruling that

claimant’s claim of March 19, 2001, was timely filed.

For these reasons, I would affirm the commission’s decision and
award.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication. Further,

because this opinion has no precedential value, we recite only
those facts essential to our

holding.

 

[2]We note,
however, that employer’s contention that claimant was required to prove

injurious exposure by the clear and convincing evidence standard
set forth in Code ? 65.2-401 is

in error. As stated above, claimant was required to prove by
clear and convincing evidence the

elements of Code ? 65.2-401 in order to render his hearing
loss, an otherwise ordinary disease of

life, compensable as an "occupational disease." The
burden then changed, requiring only that

"claimant . . . establish by a preponderance of the
evidence in whose employment he was last

injuriously exposed." Blue Diamond Coal Co. v. Pannell, 203
Va. 49, 53, 122 S.E.2d 666, 669

(1961).

 

[3]We find no
evidentiary support in Dr. Robbins’ advice to claimant to "avoid"
future

noise exposure. Indeed, the article submitted by Dr. Robbins
definitively stated that

occupational hearing loss "does not progress once the
subject is removed from the noisy

environment." Therefore it is mere prudence for a physician
to counsel his patient to take such a

precautionary measure. Such counsel, however, does not prove
claimant continued to suffer

injurious exposure to his hearing during his work with employer.
In fact, Dr. Robbins’ explicit

statements tend to prove the contrary.

 

[4]Moreover, Dr.
Robbins’ testimony failed to establish any measurable aggravation that

might arguably rise to a level of compensability pursuant to the
commission’s own guidelines.

See Virginia Worker’s Compensation Commission Rules and
Regulations, Hearing Loss Table

(setting guidelines for the determination of compensable levels
of sustained hearing loss and

relating actual "average decibel loss" to
"percent of compensable hearing loss").

 

[5]Because we
find that the evidence failed to establish claimant’s last injurious exposure

occurred during his work with employer, we need not address
employer’s contention that

claimant’s claim for benefits was time barred. See Code ?
65.2-404(A) ("When an employee has

an occupational disease that is covered by this title, the
employer in whose employment he was

last injuriously exposed to the hazards of the disease and the
employer’s insurance carrier, if any,

at the time of the exposure, shall alone be liable therefor,
without right to contribution from any

prior employer or insurance carrier.").

 

[6]The majority
appears to rule in a footnote that, to establish injurious exposure, a

claimant must prove a certain level of "measurable
aggravation" commensurate with the

minimum level of compensability set forth in the commission’s
Hearing Loss Table. I find no

basis in authority or logic for such a ruling in the context of
determining in whose employment a

claimant was last injuriously exposed.


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