David Clevenger v. Ford Motor Company

Employee's date of birth is August 21, 1958. He was 55 years of age as of the date of the hearing before the administrative law judge. Employee began working for employer on August 8, 1977. Employee worked full-time on employer's assembly line.

When employee began working for employer, he did not have any problems with his hearing. Employee's daily work for employer exposed him to numerous machines, tools, and processes that produced loud noises. Employer provided earplugs, but these were impractical and even unsafe to use, as they hindered the ability of employees to communicate with one another on the busy factory floor.

As part of an agreement between employer and the union to which employee belonged, employee submitted to annual hearing tests at employer's facility. Those tests were performed by doctors employed by employer. As early as 1996, those tests revealed that employee was suffering hearing loss accompanied by severe ringing in his ears. Employer's doctors told employee that his hearing problems and the ringing in his ears were the effects of aging, and advised him to see his personal physician for treatment. Employer's doctors never suggested to employee there was a possibility his hearing problems were connected to noisy working conditions with employer.

Employee took advantage of an early retirement program, and his last day of work for employer was September 3, 2006. Employee's hearing problems and the ringing in his ears continued after September 3, 2006, although they did not worsen after that date. On March 4, 2010, employee saw Dr. Gregory Mulcahy for complaints of hearing loss and ringing in his ears. Dr. Mulcahy told employee that these problems had been caused by his exposure to loud noises during the course of his work for employer.

There is no indication on this record that employee is a doctor, or an audiologist, or that he is otherwise versed in the scientific literature regarding the potential causes of the medical conditions of hearing loss or tinnitus. Especially when we consider that employer's doctors continually assured employee that his hearing loss and the ringing in his ears were merely the effects of aging, we are persuaded (and we so find) that it was not apparent or reasonably discoverable to employee that he'd suffered a work-related injury in the form of hearing loss or tinnitus until his March 4, 2010, visit with Dr. Mulcahy. On March 18, 2010, employee filed a claim for compensation alleging he suffered hearing loss and tinnitus as a result of exposure to occupational noise in the course of his work for employer.

Employee suffers from a continuous buzzing or ringing sound in his ears, which he describes as akin to the sound of locusts. This sensation makes it difficult for employee to concentrate, causes irritation and frustration, and affects his sleep. Employee presented an expert medical opinion from Dr. Peter Bieri, who opined that employee's 30 years of exposure to noisy work with employer is the prevailing factor causing him to suffer hearing loss and tinnitus. Dr. Bieri rated employee's disability referable to tinnitus at 15 % permanent partial disability of the body as a whole.

With regard to the question of future medical care, Dr. Bieri opined that employee's tinnitus is irreversible and will not improve. Dr. Bieri acknowledged the existence of

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various remedies for tinnitus, such as antioxidant supplements and tranquilizers to make the constant buzzing or ringing of tinnitus less distressing. But Dr. Bieri also indicated that he personally did not believe such treatments were effective and opined that they "certainly [don't] meet the scientific criteria by which it would be beneficial." Transcript, page 60. We infer from this testimony that Dr. Bieri cannot state, with a reasonable degree of medical certainty, that there exist any treatments that will provide any cure or relief from employee's tinnitus.

Employer did not provide any contrary expert medical opinion evidence. After careful consideration, we find Dr. Bieri's opinions in this matter to be persuasive.

Section 287.430 RSMo provides, as follows:

Except for a claim for recovery filed against the second injury fund, no proceedings for compensation under this chapter shall be maintained unless a claim therefor is filed with the division within two years after the date of injury or death, or the last payment made under this chapter on account of the injury or death, except that if the report of the injury or the death is not filed by the employer as required by section 287.380 , the claim for compensation may be filed within three years after the date of injury, death, or last payment made under this chapter on account of the injury or death.

Section 287.063.3 RSMo additionally provides, as follows:

The statute of limitation referred to in section 287.430 shall not begin to run in cases of occupational disease until it becomes reasonably discoverable and apparent that an injury has been sustained related to such exposure, except that in cases of loss of hearing due to industrial noise said limitation shall not begin to run until the employee is eligible to file a claim as hereinafter provided in section 287.197.

The plain language, of the foregoing sections, makes clear that the statute of limitations does not begin to run in cases of occupational disease until it becomes reasonably discoverable and apparent that an "injury" has been sustained related to the exposure. Section 287.020.3(1) RSMo provides that "[i]n this chapter, the term 'injury' is hereby defined to be an injury which has arisen out of and in the course of employment." It follows that the 2-year statute of limitations period did not begin to run for employee until it was reasonably discoverable and apparent to him that his tinnitus amounted to an injury arising out of and in the course of employment related to his exposure to occupational noise while working for employer.

Employer suggests that, here, the statute of limitations should begin running as of September 3, 2006, employee's last day of work for employer. Employer argues that, owing to the 2005 legislative changes to $\S 287.063 .3$, the 2-year statute of limitations

period begins to run whenever it is reasonably discoverable and apparent that an employee has suffered an injury, regardless whether it is reasonably discoverable and apparent to the employee that the injury is related to work. ${ }^{1} Employer suggests that in amending \S 287.063 .3$ by deleting the word "compensable" in 2005, the legislature intended to abrogate cases such as Sellers v. Trans World Airlines, Inc., 752 S.W.2d 413, 416-17 (Mo. App. 1988), which held that an employee is entitled to rely on a physician's diagnosis of a work-related occupational disease, rather than his own lay impressions whether such a condition is work-related.

We are not persuaded. Employer's argument asks us to ignore both the definition of "injury" under $\S 287.020 .3(1)$ as well as the legislative addition, in 2005, of the qualifier "related to such exposure" in $\S 287.063 .3$. We presume that the legislature was aware of the pre-2005 case law indicating that an occupational disease does not become "compensable" until an employee suffers some loss in earning capacity, e.g., Garrone v. Treasurer of State, 157 S.W.3d 237 (Mo. App. 2004). It appears to us that by removing the term "compensable" and adding the qualifier "related to such exposure," the legislature intended to shift the focus of our inquiry from the apparent compensability of an injury to the apparent work-relatedness of an injury.

In doing so, the legislature recognized that the "compensability" of any particular injury does not always turn on whether an employee has medical grounds for bringing a claim, but may involve a number of other factors which are not relevant to the determination of when it becomes apparent an employee has suffered a work injury. ${ }^{2}$ Thus, far from abrogating or weakening the rationale in cases such as Sellers, the legislature in 2005 made clear that the apparent work-relatedness of an injury must be our paramount concern in answering the question when the statute of limitations begins to run in occupational disease cases.

The determination of when it became reasonably discoverable and apparent to employee that he'd suffered tinnitus related to his exposure to noisy work with employer is a factual one. Lawrence v. Anheuser Busch Cos., 310 S.W.3d 248, 252 (Mo. App. 2010). We have found that this first occurred during Dr. Mulcahy's evaluation on March 4, 2010; employee filed his claim for compensation on March 18, 2010. We conclude that employee's claim is not barred by the statute of limitations.

Section 287.067 RSMo provides, in relevant part, as follows:

1. In this chapter the term 'occupational disease" is hereby defined to mean, unless a different meaning is clearly indicated by the context, an

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[^0]: ${ }^{1}$ Employer does not explain why employee's last day of work should be seen as the date upon which his injury of tinnitus became reasonably discoverable or apparent; elsewhere in its brief, it acknowledges that employee suffered ringing in his ears referabl