Nancy Naeter v. R.C. Lone Star

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 05-142944**

**Employee:** Nancy Naeter

**Employer:** R.C. Lone Star (Settled)

**Insurer:** Sentry Insurance Company (Settled)

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated October 24, 2017, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Lawrence C. Kasten, issued October 24, 2017, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 15th day of June 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Nancy Naeter

Injury No. 05-142944

Dependents: N/A

Employer: R.C. Lone Star (Settled)

Additional Party: The Second Injury Fund

Insurer: Sentry Insurance Company (Settled)

Appearances: Chris Weiss, attorney for the employee.

Keyla Rhoades, attorney for the Second Injury Fund.

Hearing Date: July 10, 2017 commenced

Checked by: LCK/kg

July 20, 2017 completed

1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable under Chapter 287? Undetermined.
3. Was there an accident or incident of occupational disease under the Law? Undetermined.
4. Date of accident or onset of occupational disease? Undetermined.
5. State location where accident occurred or occupational disease contracted: Undetermined.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did the employer receive proper notice? Undetermined.
8. Did accident or occupational disease arise out of and in the course of the employment? Undetermined.

Employee: Nancy Naeter

Injury No. 05-142944

1. Was claim for compensation filed within time required by law? No, with regard to the Second Injury Fund Claim.

1. Was the employer insured by above insurer? Yes.

1. Describe work the employee was doing and how accident happened or occupational disease contracted: N/A.

1. Did accident or occupational disease cause death? No.

1. Parts of body injured by accident or occupational disease: Undetermined.

1. Nature and extent of any permanent disability: None.

1. Compensation paid to date for temporary total disability: None.

1. Value necessary medical aid paid to date by the employer-insurer: $1,985.71.

1. Value necessary medical aid not furnished by the employer-insurer: N/A.

1. Employee's average weekly wage: Undetermined.

1. Weekly compensation rate: 696.97 for temporary total disability and permanent total disability. 365.08 for permanent partial disability.

1. Method wages computation: Rate of compensation by agreement.

1. Amount of compensation payable: None.

1. Second Injury Fund liability: None.

1. Future requirements awarded: None.

Page 2

On July 10, 2017, the employee, Nancy Naeter, appeared in person and with her attorney, Chris Weiss for a hearing for a final award. The Second Injury Fund was represented by Assistant Attorney General Keyla Rhoades. The parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. R.C. Lone Star was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Sentry Insurance Company.
2. On September 9, 2005, Nancy Naeter was an employee of R.C. Lone Star and was working under the Workers' Compensation Act.
3. The employee's rate of compensation for permanent total and temporary total disability is $\ 696.97 and for permanent partial disability is $\ 365.08.
4. The employer-insurer paid $\ 1,985.71 in medical aid.
5. The employer-insurer paid no temporary disability benefits.

1. Occupational disease
2. Notice
3. Statute of limitations regarding the Second Injury Fund
4. Medical causation
5. Liability of the Second Injury Fund for permanent total disability or permanent partial disability

1. Advance School Records
2. Employment Records from Lone Star
3. Medical Records of Cape Girardeau Physician Associates/Dr. Wulfers
4. MSHA records of Lone Star Quarry
5. Freedom of Information Request records from Employer
6. Medical Records of Audiology Associates
7. Medical Records of Cape County Otolaryngology - Dr. Schroeder
8. Medical Records of Southeast Hospital
9. Medical Records of Brown -Willen Audiology
10. Medical Records of Dr. John Shea
11. Deposition of Dr. Berkin including his C.V. and report
12. Deposition of Timothy Lalk including his C.V. and report

Employee: Nancy Naeter

Injury No. 05-142944

1. Deposition of Dr. Paul Shea including exhibits and C.V.

1. Stipulation for Compromise Settlement against the employer-insurer

1. Deposition of Dr. John Shea including exhibits and C.V.

The record was left open for the submission of Exhibit 15, which was received by the Division on July 20, 2017. The exhibit was admitted into evidence and the record was closed.

Second Injury Fund Exhibits:

A. March 14, 2016 Report of Dr. Wallace

B. June 15, 2009 Report of Dr. Benecke

C. February 6, 2008 Report of Dr. McKinney

Note: Some of the Exhibits had highlighted sections that were present when received by the Court.

Judicial Notice of the contents of the Division's file for the employee was taken.

WITNESS:

Nancy Naeter, the employee.

PROPOSED AWARDS:

The Second Injury Fund's proposed Award was received on August 31, 2017. The employee's proposed Award was received on September 5, 2017.

STATEMENT OF THE FINDINGS OF FACT:

I make the following Findings of Fact regarding Issue 3, the Statute of Limitations:

The employee testified that she started working at Lone Star on June 20, 1984 and worked there for 21 years. She had a physical and a hearing test and passed both of those prior to starting to work there.

The application for employment with Lone Star Industries on May 9, 1984, noted that the employee's hearing was not defective and she did not wear hearing aids. A physical examination on June 19, 1984, showed that based on an audiogram, the hearing in both ears was "good." The employee had no limitation of activities and was physically fit in all of the above categories.

The employee testified that she worked in a very noisy and dangerous environment. When she first started working, she was given earplugs. She took them out in the quieter areas of the employer. She is claiming that she had a pre-existing condition, Meniere's disease. In 1985, she first noticed symptoms of Meniere's disease, which was dizziness and vertigo. Dramamine patches did not help. She saw Dr. Perry in August of 1985 and was taken off work for about two

**Injury No. 05-142944**

months. She first started noticing tinnitus or roaring in her ears maybe about the same time but was not sure. Prior to working at Lone Star, she did not have any dizziness or vertigo and was not diagnosed with Meniere's disease.

On August 27, 1985, the employee saw Dr. Roberts. She was off work for dizziness. Dr. Roberts noted that the employee had vertigo and vision problems when moving her head. He noted that she should be cautious when operating machinery. The employee was advised not to return to work until the dizziness ceases, due to the type of work she performed.

The employee testified that after the dizziness started she changed the way she worked. She took more time and held on to hand rails. She avoided catwalks and grain barges. She has tinnitus, which started a little while after her Meniere's disease.

The employee testified that Lone Star started hearing testing in 1993. HCP was the audiologist that performed the first hearing test in 1993. Robert Cox, Lone Star's safety coordinator, signed the report.

On May 19, 1993, Robert Cox stated that the employee had a hearing test, which was her first hearing test since joining the company. Since she was exposed to noise throughout the workday she should be aware that excessive noise on or off the job can seriously damage her hearing. She was strongly urged to protect her present level of hearing by using hearing protection both at home and off the job.

The employee testified that in 1995, she saw Dr. Ritter due to a fall at home from dizziness. The records show that Dr. Ritter treated the employee in 1995 for an ulnar fracture.

The employee testified that she started developing hearing loss in the late 1990s. Starting in 2000, Audiology Associates performed the hearing tests at Lone Star. She had yearly tests. She developed hearing loss in both ears. She has 85% loss in the left ear and 75% loss in the right ear.

On April 5, 2002, the employee had a hearing test at Audiology Associates. It was noted that the employee woke up on February 4, 2002, and could not hear the alarm and her husband had to awaken her.

The employee testified that in February of 2002, when she reported a sudden change of hearing loss, she was not able to pinpoint anything that happened.

On April 8, 2002, the employee saw Dr. Schroeder at Cape County Otolaryngology. The audiology evaluation indicated that the employee's hearing had changed suddenly in February. Testing that day suggested slight changes in pure tones from February 28, 2002. Dr. Schroeder sent Dr. Wulfers a letter on April 10, 2002, stating that the employee had some problems with fluctuation of hearing but there was no obvious signs of infection. The MRI was negative for tumor.

Page 5

**Injury No. 05-142944**

The employee went to Dr. Wulfers on June 4, 2002, for a "rather sudden hearing loss around February." She had a bilateral hearing loss worse in the high frequencies with a long history of exposure to industrial noise working at Lone Star for approximately 18 years. She has intermittently worn hearing protection. The employee had bilateral tinnitus for a number of years. Dr. Wulfers assessed bilateral hearing loss, mainly in the high frequencies. She had some significant loss in the conversational areas as well, which was most likely due to chronic noise exposure at work. Dr. Wulfers recommended that the employee wear hearing protection to protect what hearing she had left.

On February 27, 2003, the employee saw Dr. Wulfers for an "equilibrium" problem for at least the past year and dated it to around the time when she developed the hearing loss. Her loss of equilibrium was described as a loss of balance and type of spinning sensation when she moved her head to certain positions. It lasted for a few seconds at the time. There was a little nausea associated with it. The employee was concerned that she might fall since she worked on barges. Dr. Wulfers recommended that she not work on the barges or railcars until evaluated by an audiologist. Dr. Wulfers referred her to Linda Hurt at Audiology Associates for positional treatment of her benign positional vertigo.

On March 7, 2003, the employee saw Linda Hurt at Audiology Associates. The audiological evaluation showed mild to moderate hearing loss and a slight drop from the previous test. An ENG was performed which showed a clinical history of disequilibrium when standing or walking with lightheadedness/vertigo with fast head/body movement. There w