Appeal No. 2051840) (Claim No. 2017013300)
Kenneth Hurley, by Reginald D. Henry, his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Pinnacle Mining Company, LLC, by Sean
Harter, its attorney, filed a timely response.
issue on appeal is compensability. The claims administrator
rejected the claim on November 8, 2016. The Office of Judges
affirmed the decision in its February 17, 2017, Order. The
Order was affirmed by the Board of Review on August 16, 2017.
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
Hurley, a coal miner, alleges that he developed bilateral
hearing loss as a result of his work for Pinnacle Mining
Company, LLC. A March 3, 2009, treatment note by James Paine,
M.D., indicates Mr. Hurley was treated for bilateral hearing
loss. Mr. Hurley reported at that time that he worked in a
coal mine for thirty-two years and his left ear had greater
noise exposure from using a roof bolting machine. An
audiogram showed moderate to severe sensorineural hearing
loss, greater on the left. An April 24, 2009, Explanation of
Benefit Payments statement issued to Blue Cross Blue Shield,
Mr. Hurley's private healthcare, indicates he requested
hearing aids. A June 4, 2013, treatment note by Dr. Paine
indicates Mr. Hurley returned for a hearing aid for his right
ear. The hearing loss was noted as moderate. An audiogram
showed bilateral sensorineural hearing loss in the high
Hurley filed a report of occupational hearing loss on
September 3, 2016, indicating he was last exposed to
occupational noise on August 30, 2008. He worked as coal
miner for thirty-two years beginning in 1976. On September
21, 2016, an audiogram showed bilateral sensorineural hearing
loss that was directly caused by or aggravated by industrial
noise exposure in the course of Mr. Hurley's employment.
Zaven Jabourian, M.D., assessed 17.5% whole person impairment
due to work-related noise exposure. He stated that there were
no other contributing factors to the hearing loss and that
Mr. Hurley would need bilateral hearing aids.
claimant completed an injured employee's report on
October 20, 2016, stating that he sustained occupational
hearing loss. The claims administrator rejected the claim on
November 8, 2016. It stated that Mr. Hurley did not timely
file his claim as he was made aware in March of 2009 that he
had occupational hearing loss.
Hurley testified in a hearing before the Office of Judges on
January 19, 2017, that he was exposed to significant noise
while operating machinery and fire bossing for Pinnacle
Mining Company, LLC. He stated that his exposure began in
1976. He also testified that he was exposed to
nonoccupational noise after he retired in the form of power
tools, but he used hearing protection during their use. He
stated that he does operate an all-terrain vehicle without
hearing protection and that he uses firearms with hearing
protection. Mr. Hurley then testified that he saw Dr. Paine
on March 3, 2009, because he suspected he had hearing loss.
He denied that Dr. Paine ever discussed occupational noise as
a cause of his hearing loss. He asserted that he was unaware
that his hearing loss was occupationally related until 2016.
Office of Judges affirmed the claims administrator's
rejection of the claim on February 17, 2017. It found that a
preponderance of the evidence indicates Mr. Hurley was
exposed to occupational noise and that he has sustained
hearing loss as a result. However, the Office of Judges
determined that the claim was not timely filed. It found that
the March 3, 2009, treatment note could not be ignored. It
stated that Mr. Hurley worked in the mine for thirty-two
years and had more noise exposure on the left side from the
roof bolter machine. The Office of Judges found that this was
evidence that Mr. Hurley was asked about occupational noise
exposure and that he discussed his work in the coal mines.
Further, the note was specific enough to note that one side
was more affected than the other due to the roof bolter.
Though Mr. Hurley testified that he did not know occupational
noise caused hearing loss in 2009, the Office of Judges
concluded that a preponderance of the evidence indicates he
knew or reasonably should have known at that time that his
hearing loss was due to occupational exposure. Mr. Hurley
argued that the fact that his private insurance paid for his
hearing aids in 2009 lends credence to his argument that Dr.
Paine did not inform him of the source of his hearing loss.
However, the Office of Judges concluded that responsibility
for filing a claim falls on the claimant, not the physician.
The four corners of the March 3, 2009, treatment note
indicate Mr. Hurley had bilateral occupational hearing loss
and that he reported his job and noise exposure while at work
to his physician. He therefore knew or reasonably should have
known on March 3, 2009, that his hearing loss was
Board of Review adopted the findings of fact and conclusions
of law of the Office of Judges and affirmed its Order on
August 16, 2017.
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. The
evidence indicates Mr. Hurley knew or should reasonably have
known that his hearing loss was occupationally related on
March 3, 2009, when he saw Dr. Paine. Mr. Hurley has failed
to show that the Board of Review committed a reversible
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 IN BY: Chief Justice Allen H. Loughry II Justice
Robin J. Davis Justice Margaret L. Workman Justice Menis ...