CHARLES R. ALDERMAN, Claimant Below, Petitioner
SAINT-GOBAIN CERAMICS & PLASTICS, INC., Employer Below, Respondent
Appeal No. 2050884) (Claim No. 2015025342)
Charles R. Alderman, by Robert L. Stultz, his attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. Saint-Gobain Ceramics &
Plastics, Inc., by James W. Heslep, its attorney, filed a
appeal arises from the Board of Review's Final Order
dated March 9, 2016, in which the Board affirmed a September
28, 2015, Order of the Workers' Compensation Office of
Judges. In its Order, the Office of Judges affirmed the
claims administrator's April 6, 2015, decision to reject
the claim. The Court has carefully reviewed the records,
written arguments, and appendices contained in the briefs,
and the case is mature for consideration.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
is appropriate under Rule 21 of the Rules of Appellate
Alderman, a former plant worker for Saint-Gobain Ceramics
& Plastics, Inc., filed an Employees' and
Physicians' Report of Occupational Hearing Loss hearing
loss claim on June 12, 2013. Mr. Alderman retired from
Saint-Gobain Ceramics & Plastics, Inc., on June 30,
2011.2 Mr. Alderman underwent a hearing test in 1995 and the
test indicated he suffered from hearing loss. Saint-Gobain
Ceramics & Plastics, Inc., filed a report of occupational
hearing loss in the spring of 1995 based upon Dr. Bland's
finding that he suffered from noise-induced hearing loss.
Much of the application is illegible and no impairment level
could be determined. Dr. Bland also completed an application
for noise-induced hearing loss on May 17, 1995.
in 2011, Mr. Alderman underwent audiological testing
performed by a clinically certified audiologist, J. L.
Daristotle, M.D., who diagnosed hearing loss and tinnitus. He
found 29% impairment due to work-related noise exposure, and
recommended binaural amplification. On April 9, 2012, John
Wyllie, M.D., authored a report that opined Mr. Alderman
suffered from bilateral sensorineural hearing loss and
bilateral tympanosclerosis. Dr. Wyllie recommended hearing
aids for both ears. No determination of impairment was
March 10, 2015, Mr. Alderman's counsel filed an
Employees' and Physicians' Report of Occupational
Hearing Loss with the correct insurance provider.
Saint-Gobain Ceramics & Plastic, Inc., submitted a report
of occupational hearing loss on March 25, 2015. That report
indicated that Mr. Alderman began working for the employer on
October 11, 1995, as a production associate. Mr.
Alderman's last day of work was in the summer of 2011.
There was an attachment to the hearing loss form which stated
that Saint-Gobain Ceramics & Plastics, Inc., did not
believe that it subjected Mr. Alderman to excessive noise
because he was required to wear earplugs. On April 6, 2015,
the claims administrator determined that Mr. Alderman's
claim for occupational hearing loss was not timely filed. As
a result, the claims administrator rejected his claim.
September 28, 2015, the Office of Judges determined that the
claim for occupationally related noise induced hearing loss
was not filed in a timely fashion. The Office of Judges
looked to West Virginia Code § 23-4-15(c) (2010), and
determined that the application must be filed within three
years after the latest of the following events: (a) the day
on which the employee was last exposed to excessive
occupational noise; or (b) the date that the claimant was
told of his occupational hearing loss by a physician; or (c)
the date which the claimant should reasonably have known that
his hearing loss was caused by his occupational exposure. The
Office of Judges found that Mr. Alderman was aware of his
hearing loss in the spring of 1995 when Dr. Bland completed
an application for noise-induced hearing loss. The Office of
Judges found that Mr. Alderman's last day of employment
was June 30, 2011. Because his last day was June 30, 2011,
the Office of Judges determined that his application must
have been filed on or before June 30, 2014. Because his claim
was not filed until March 10, 2015, the Office of Judges
determined it was not filed in a timely fashion. The Board of
Review adopted the findings of the Office of Judges and
affirmed its Order on March 9, 2016.
review, we agree with the consistent decisions of the Office
of Judges and Board of Review. Pursuant to West Virginia Code
§ 23-4-15(c), the claim must be filed within three years
of the date on which the employee was last exposed to the
particular occupational hazard or within three years of the
date on which the employee's occupational disease was
made known to him or her, whichever occurs last. It is
apparent from the record that Mr. Alderman became aware of
his hearing loss on May 17, 1995, when Dr. Bland completed an
application for noise- induced hearing loss. It is also known
that his last day of employment was in the summer of 2011.
Mr. Alderman's claim was not filed until March 10, 2015,
which was well beyond the deadline in West Virginia Code
foregoing reasons, we find that the decision of the Board of
Review is not in clear violation of any constitutional or
statutory provision, nor is it clearly the result of
erroneous conclusions of law, nor is it based upon a material
misstatement or mischaracterization of the evidentiary
record. Therefore, the decision of the Board of Review is
CONCURRED: Chief Justice Allen H. Loughry II Justice Robin J.
Davis Justice Margaret L. Workman Justice Elizabeth D. Walker
DISSENTING: Justice ...