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.

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**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 was progressive sensorineural hearing loss over past two years; occasional tinnitus with no family history of Meniere's disease. The ENG was negative for benign positioning vertigo but suggested a bilateral vestibular loss. The employee was given vestibular exercises to decrease the oscillopsia and vertigo.

The employee testified that she first went to Dr. John Shea at the Shea Clinic on March 13, 2003.

On March 13, 2003, the employee saw Dr. John Shea. The New Patient Visit/Consultation noted constant tinnitus in both ears for over 10 years. She had a noticeable decrease in hearing in both ears on February 4, 2002. The employee had balance problems for 15 years and she recently fell and bruised her arm. She had a history of noise exposure to industrial noise for 19 years and wears ear protection when required.

The employee testified that the balance problems noted by Dr. Shea was the dizziness. Dr. Shea prescribed a steroid, Lexapro, and a low dose of Xanax.

On April 4, 2003, Dr. Shea sent Dr. Wulfers a letter noting that the employee had a progressive hearing loss in both ears for many years. She had loss of balance associated with the movement of her head, which has been worse recently, but no true-turning dizzy spells. She had a normal electrocochleography in both ears and the Dix-Hallpike test was normal. Dr. Shea recommended Semont exercises daily and prescribed dexamethasone .25 daily and Xanax twice a day for the noise in her ears. On April 4, 2003, Dr. Shea sent the employee a letter stating that

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**Injury No. 05-142944**

She had no true-turning dizzy spells suggestive of Meniere's disease. The bilateral inner ear pressures are high normal by electrocochleography. Dr. Shea did not believe the employee had Meniere's disease and recommended a hearing aid in the right ear.

Dr. Shea saw the employee on April 14, 2003. In an April 21, 2003 letter, Dr. Shea noted that the hearing in her right ear and her balance were better. The medications were continued. The employee was excused from working on top of barges for at least another 90 days.

The employee testified that in April of 2003, Dr. Shea took her off work to see if the exercises made a difference on hearing and balance problems. The exercises did not help and he recommended dual hearing protection.

On April 24, 2003, the employee saw Dr. Wulfers. Dr. Shea did not feel that she had Meniere's disease and prescribed exercise and medications. Dr. Wulfers continued the restrictions of not working on barges or railcars until at least July when she was to see Dr. Shea.

The employee went to Southeast Missouri Hospital Emergency Room on May 3, 2003, due to low back pain and left groin discomfort. The records indicated that she had been on light duty because of dizziness and hearing loss that she sustained in February of 2002. She was seeing the doctors at the Shea Clinic and had been on dexamethasone .25 mg daily.

The employee saw Dr. Shea on July 28, 2003, October 20, 2003, and November 5, 2003. On December 2, 2003, Dr. Shea performed a perfusion of labyrinth for a diagnosis of Meniere's disease and tinnitus.

On December 12, 2003, Dr. Wulfers saw the employee for a return to work evaluation. She had been working at Lone Star but was no longer going up and down the barges. She had Dr. Shea's authorization to go back to full time. She had diminished hearing and some tinnitus. Dr. Wulfers diagnosed vertigo and status post procedures at Shea Clinic with improvement; and returned her to work without restrictions.

Dr. Shea saw the employee on January 2, 2004. The fullness and tinnitus was better after the perfusion in December of 2003. Dr. Shea saw the employee in March and June of 2004. On July 12, 2004, Dr. Wulfers noted that the employee was being treated by Dr. Shea and had not had any recent significant dizziness.

The employee saw Dr. Shea in September of 2004. Dr. Shea performed a perfusion of labyrinth on March 28, 2005 for Meniere's disease. On May 31, 2005, Dr. Shea noted that the employee did not have fullness, very little discharge, and very little tinnitus. She continued to have some dizziness but it was better.

On July 18, 2005, Dr. Wulfers noted that she was under the care of Dr. Shea. She was continued on medications due to depression related to her hearing loss.

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**Injury No. 05-142944**

The employee saw Dr. Shea on September 6, 2005. There was no subjective change in her hearing loss. She continued to have dizziness.

The employee testified that in September of 2005, Dr. Shea recommended that she stop working at Lone Star. Her hearing loss was pretty rapid and Dr. Shea said she would go completely deaf if she continued to work. She stopped working on September 9, 2005, and since then she has not had any more hearing loss. She has hearing aids. When she gets new ones her hearing is tested and it has been the same level.

On September 14, 2005, Dr. Shea issued a letter that the employee has a diagnosis of Meniere's disease and was unable to work at her present employer. He recommended taking a sick leave of absence. The employee continued to treat with Dr. Shea in 2005 and 2006. On October 5, 2006, Dr. Shea noted that the employee had Meniere's disease, which seemed worse with stress.

The employee's original Claim was filed with the Division of Workers' Compensation on October 17, 2006. The Claim alleged a date of accident or occupational disease of "June 20, 1984 through Sept. 9, 2005." The Claim listed "Hearing loss/ears" for parts of body injured. For the description of injury, it states, "Long term exposure to industrial noise beginning June 20, 1984 through Sept. 9, 2005 while at work for employer." The Second Injury Fund was not added as a party to the Claim under Section 11.

On February 9, 2007, Dr. Shea sent a letter to the employee's former attorney. Dr. Shea stated that the employee had a dramatic and very disabling decline in hearing in both ears, especially in the left ear. She was first seen on March 13, 2003, due to rapidly progressive Meniere's disease made worse by stress of her work on cement barges on the river. After several accidents by others, one at least fatal, Ms. Naeter became very stressed in her work, which is a well-recognized cause of Meniere's disease. In her last test on October 5, 2006, the hearing in her left ear had dropped below the right ear. The employee has a very severe progressive hearing loss in the left ear due to Meniere's disease and due to stress of her work.

In a follow-up letter, on March 14, 2007, Dr. Shea stated that it was his opinion that the prevailing cause of the employee's Meniere's disease and hearing loss in her left ear are work stress and industrial noise at her workplace.

The employer-insurer sent the employee to Dr. McKinney. He saw the employee on December 7, 2007, and issued a report on February 6, 2008. It was Dr. McKinney's opinion that pursuant to Missouri Workers' Compensation Rules, the employee had a hearing loss of 64.2% in the right ear, 71.7% of the left ear, and a binaural loss of 65.4%. Dr. McKinney had not seen Meniere's disease develop in individuals working with limestone, gravel, sand, cement plants, lead, coal mines or salt mines due to noise or stress. It was his opinion that most likely the employee had Meniere's disease prior to her employment at Lone Star. The employee's ability to work would be restricted due to the Meniere's disease, and which would eliminate her from working on barges or other equipment in which she is required to maintain a good balance. It was Dr. McKinney's opinion that the employee did not need any additional medical treatment.

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**Injury No. 05-142944**

other than a periodic repair or evaluation of the hearing aids and was at maximum medical improvement. It was his opinion that the employee had Meniere's disease prior to her employment at Lone Star, which caused the hearing loss and her employment was not a significant factor in the development of hearing loss. The employee did not have continuous head noises or tinnitus and based on that Dr. McKinney did not assess any permanent partial disability for that condition.

On October 9, 2008, Dr. Shea stated that the employee had subjective decrease in hearing with constant roaring and mild pressure. She was occasionally off balance. Medications were continued. Stage 4 Meniere's disease was diagnosed. Dr. Shea saw the employee on November 5, 2009. She had a constant roar in both ears, with no fullness, and was off balance.

The employer-insurer sent the employee to Dr. Benecke on June 15, 2009. Dr. Benecke diagnosed bilateral sensorineural hearing loss, subjective tinnitus and ataxia. It was his opinion that there was not enough evidence to support a diagnosis of Meniere's disease. It was his opinion that the diagnoses were not causally related to her employment at Lone Star. It was Dr. Benecke's opinion that the hearing loss was a slowly progressive loss; and that the need for treatment was not related to her occupational duties. It was his opinion that the occupational duties up to September of 2005 were not the prevailing factor in the cause of her alleged diagnosis of Meniere's disease. It was his opinion that the bilateral sensorineural hearing loss, subjective tinnitus and subjective ataxia were not related to her work at Lone Star; and thought the diagnoses were clearly the result of an underlying otologic disease which could be an autoimmune phenomenon. He recommended further evaluation including additional testing to substantiate a diagnosis. It was his opinion that the employee did not have any permanent partial disability related to the occupation at Lone Star.

The employee was seen at Shea Clinic on November 5, 2009.

The deposition of Dr. John Shea took place on April 30, 2010. He has published numerous articles concerning treatment of the ears and Meniere's disease. Dr. Shea pioneered numerous techniques in the treatment of hearing loss and dizziness; and developed the treatment called perfusion for Meniere's disease. In March of 2003, the employee had a profound loss in her right ear with poor recognition of words and could only understand 44% of the words presented to her. She had a moderate loss of hearing in her left ear and had 88% recognition of words in the left ear. His impression was loss of balance and dizziness. It was his opinion that the exposure to the loud industrial noise could be the cause of her hearing loss and dizzy spells. At that point, Dr. Shea did not diagnose the employee with Meniere's disease. Meniere's disease is most commonly caused by loud noise but other potential causes include allergy, certain medications, lots of caffeine, certain antibiotics and nicotine. On December 1, 2003, Dr. Shea diagnosed the employee with Meniere's disease based on very elevated inner ear pressure in both ears. Dr. Shea performed a perfusion treatment and the employee got some temporary relief. A second perfusion was performed on March 28, 2005. The employee had a very significant hearing loss in both ears and had a loss of balance characteristic of end stage Meniere's disease. Dr. Shea considered the employee to be at maximum medical improvement on October 5, 2016. She was considered legally deaf under Tennessee law. Dr. Shea stated that the August 27, 1985

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**Injury No. 05-142944**

Record from Dr. Roberts where the employee had dizziness could be a very early stage of Meniere's disease. It was Dr. Shea's opinion that the dizziness and imbalance was a result of the Meniere's disease.

On October 29, 2010, Dr. John Shea issued a letter that the employee had far advanced nerve type deafness due to deterioration of her hearing nerves as a result of loud noise at work that complicated the far advanced Meniere's disease.

The employee filed a First Amended Claim on December 3, 2010, against the employer-insurer. The only amendment made to that Claim was under Section 7, which is part(s) of body injured. Added to "Hearing loss/ears" was "Tinnitus and Meniere's disease." The Second Injury Fund was not made a party to the First Amended Claim.

Dr. Paul Shea wrote a letter to the employee's attorney dated August 25, 2011. Dr. Shea stated that his father Dr. John Shea last saw the employee in October of 2010. Dr. Paul Shea saw the employee one time on July 18, 2011. It was his opinion that due to all of the problems with balance and dizziness that the employee had Meniere's disease. It was the only likely explanation for her loss of balance as well as hearing function. Dr. Shea stated that being around noise can exacerbate the symptoms of Meniere's but does not per se cause Meniere's. It was his opinion that Meniere's disease was not the result of her employment. Dr. Shea did not believe that the employee's employment with Lone Star was the prevailing factor in causing her hearing loss and tinnitus.

The employee filed a Second Amended Claim on December 16, 2011. The only amendment to that Claim was marking the box in Section 11 filing a Claim against the Second Injury Fund for Permanent Total Disability and listing Meniere's disease as a pre-existing condition with an alleged date of previous disease of 2002.

On August 27, 2012, Cathy Willen, AuD at The Audiology Center wrote a letter to the employee's attorney attaching her report. It was her professional opinion that the noise exposure at Lone Star could not be disqualified as a contributing factor in the employee's current hearing loss. Since her 1984 employment there had been a progressive loss of hearing sensitivity. Dr. Willen reviewed the records, reports and letters by Dr. John Shea. At the initial 2003 examination, including performing state-of-the art testing available, it was Dr. Shea's opinion that the employee did not have Meniere's disease. Dr. Willen noted that even at the time of her 2012 evaluation there was no definite test to positively diagnose Meniere's disease. She stated that the confusing diagnosis of "not Meniere's disease" followed by disability for that condition may by symptomatic of the difficult in diagnosing and assigning blame for the progressive loss of hearing. On March 14, 2007, Dr. Shea rendered an opinion that the employee's hearing loss was at least partially caused by industrial noise at her work place. Dr. Willen noted that the configuration of the employee's hearing loss was not the prototype for noise induced hearing loss. It was Dr. Willen's professional opinion that the noise exposure at Lone Star may have at least partially contributed to the employee's hearing problems.

Page 10

Employee: Nancy Naeter

Injury No. 05-142944

The employee's Claim against the employer-insurer was settled by Stipulation for Compromise Settlement on October 23, 2012 for 22.5% of both ears for a total of $15,000.00.

Dr. Berkin saw the employee on January 9, 2014, and he issued a report on May 12, 2014. Dr. Berkin diagnosed the employee with bilateral hearing loss that developed during the course of her employment. It was his opinion that the exposure to loud noises at her employment up to September of 2005 was the prevailing factor in causing her bilateral hearing loss. It was his opinion that the employee sustained a 30% permanent partial disability of the body as a whole for the loss of hearing in each ear; Dr. Berkin stated that due to the history of Meniere's there was an additional 30% permanent partial disability of the body as whole. That pre-existing disability was a hindrance or obstacle to employment or reemployment at the time of the September of 2005 injury. The combination of disabilities is significantly greater than their simple sum and a loading factor should be applied.

Dr. Berkin's deposition was taken on December 3, 2014. It was his opinion that the employee had two different conditions. The first was hearing loss and the second was Meniere's disease. Meniere's disease is a disease with progressive symptoms of vertigo or dizziness that is a result of dysfunctional injury to the semi-circular canals inside the ear. The causes of Meniere's disease are really not known and it can idiopathically develop. It was Dr. Berkin's opinion that the employee's Meniere's disease was a pre-existing condition and not work related. It was his opinion that the Meniere's disease was a hindrance to her employment. It was his opinion that there was a synergistic effect based upon those two individual disabilities and that the disability imposed by her inability to maintain her balance and the symptoms of dizziness when combined with the hearing loss created a greater disability than the simple sum of the two disabilities added together.

It was his opinion that her employment at Lone Star was the prevailing factor in causing the bilateral hearing loss, and that the Stipulation for Compromise Settlement for 22.5% disability of each ear was appropriate assessment for the hearing loss. Many people have hearing loss without Meniere's disease. Although hearing loss is a possible symptom of Meniere's disease, his experience is that it does not typically cause hearing loss. Dr. Berkin did not feel it was a symptom in this case. Dr. Berkin did not offer an opinion whether the employee was permanently disabled, and deferred to a vocational expert.

The employee saw Timothy Lalk, a vocational rehabilitation counselor, on August 6, 2014. Mr. Lalk issued a report on September 11, 2014 and his deposition was taken on December 5, 2014. The hearing loss and Meniere's disease both limited the employee's ability to function. Vertigo and dizziness put the employee at a greater risk and required greater safeguards when attempting to do any type of climbing and working at heights. Mr. Lalk thought the hearing loss affected her employment in that she was unable to understand instructions and had to have other employee speak to her in close proximity so she could understand what they were saying. It was Mr. Lalk's opinion that the employee was not employable in the open labor market due to the combination of her conditions, including Meniere's disease and hearing loss.

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Employee: Nancy Naeter

Injury No. 05-142944

The Second Injury Fund had a record review by Dr. Wallace of Sound Health Services, P.C. He reviewed the records and some depositions including Dr. John Shea's deposition, the deposition of Nancy Naeter and other reports. In his March 14, 2016 report, it was Dr. Wallace's opinion that Meniere's disease is not caused by noise but by an increase in endolymphatic fluid pressure in her ear. The classic course of Meniere's disease is initially severe vertigo with roaring tinnitus and hearing loss that occurs intermittently until the disease burns itself out wherein the episodes of vertigo, roaring tinnitus, nausea, vomiting and hearing loss change. The typical end result is significant loss of hearing and less intensive vertigo and dizziness. There is no evidence to suggest that the hearing loss, especially when the patient admits to hearing protection, would be worsened by noise exposure. Dr. Wallace stated that there was no evidence that Meniere's disease itself could be worsened by noise exposure.

Dr. Paul Shea's deposition was taken on March 13, 2017. Dr. Paul Shea has been at the Shea Ear Clinic since 2002. He reviewed the employee's file including the treatment records and letters written by his father, Dr. John Shea. Dr. Paul Shea stated that working on barges and railcars for approximately 21 years was a fairly loud type of employment. It was his opinion that the employee had been exposed to industrial noise long enough to cause damage. Dr. Paul Shea reviewed the October 29, 2010 letter from his father stating that employee's "far advanced nerve type deafness was due to deterioration of her hearing nerves as a result of loud noise at work that complicated her far advanced Meniere's disease. She wore earplugs but not ear cups, which her employer should have provided." Dr. Paul Shea agreed with that assessment. Meniere's disease is a disease of the inner ear that is caused by a buildup of pressure. The cause of Meniere's disease is unknown but the symptoms are well known which can include dizziness, vertigo, hearing loss, tinnitus and a feeling of fullness or pressure in the ears. Dr. John Shea was one of the leaders in the world in developing treatment for Meniere's disease and the Shea Clinic has been one of the leaders in the United States as far as treatment. Dr. Paul Shea stated that industrial noise and stress are both an exacerbating factor of Meniere's disease. It was his opinion that the employee working at a mine or quarry which would be considered dangerous work, would be stressful and could exacerbate Meniere's disease. Family stress such as divorces and abusive relationships can also exacerbate Meniere's disease.

It was Dr. Paul Shea's opinion that the noise that the employee was exposed to at her employment exacerbated the symptoms of Meniere's disease. It was impossible to separate and prescribe what amount of hearing loss came from smoking and stress versus Meniere's disease versus industrial noise. He agreed with his father's recommendation that the employee be given disability due to the Meniere's disease that was aggravated by the loud industrial noise at work. Dr. Paul Shea was virtually certain that the employee had Meniere's disease and agreed with his father that it was far advanced. The employee had some stress situations both at work and outside at work that could have contributed to an increase in the employee's symptoms.

The employee testified as to how her conditions have affected her ability to work. Her vertigo has gotten worse over time. Her dizziness is constant except when laying down or sitting. After she stopped working, her hearing loss has remained the same. She still has roaring in her ears, which affects her ability to hear.

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Employee: Nancy Naeter

Injury No. 05-142944

It is disputed that the Claim against the Second Injury Fund was filed within the time allowed by law.

Under Section 287.430 RSMo, a claim against the Second Injury Fund shall be filed within two (2) years after the date of the injury or within one (1) year after a claim is filed against the employer or insurer pursuant to this Chapter, whichever is later. The statute of limitations is one of extinction and not of repose.

In *Elrod v. Treasurer of Missouri as Custodian of the Second Injury Fund*, 138 S.W.3d 714, 717 (Mo. banc 2004), Ms. Elrod slipped and injured her left knee on April 8, 1995. She filed her original Claim for Compensation with the Division on May 30, 1995. The Second Injury Fund was not added as a party to the original Claim. In the original Claim, the listed body parts that were injured were left knee, left ankle, buttocks, and back. After knee surgery in November of 1995, the employee's left knee locked which caused her to fall and she had further injuries. On November 3, 1998, more than 3 years after the original claim was filed, Ms. Elrod filed an amended Claim for Compensation. In the section for the parts of the body injured, she again listed the left knee, left ankle, buttocks and back and supplemented the body parts injured by adding the right ankle and right knee. The employee also added the Second Injury Fund as a party to the Claim and alleged that she was permanently and totally disabled from the combination of the primary injuries and her pre-existing injuries. The Missouri Supreme Court held that Section 287.430 RSMo does not say original claim or the claim. The statute says "a claim" which includes any timely claim. The Supreme Court held that Ms. Elrod's amended November 3, 1998 Claim which simultaneously added the Second Injury Fund was a "bona fide claim" since it reported more parts of the body that were injured. Ms. Elrod did not amend or supplement the original claim to solely extend the Statute of Limitations. The Supreme Court held that the Claim against the Second Injury Fund was not time barred.

In Ms. Naeter's case, the employee's original claim was filed with the Division of Workers' Compensation on October 17, 2006 against the employer-insurer. The claim alleged a date of accident or occupational disease of "June 20, 1984 through Sept. 9, 2005." The Claim listed "Hearing loss/ears" as parts of body injured. For the description of injury, it states, "Long term exposure to industrial noise beginning June 20, 1984 through Sept. 9, 2005 while at work for employer." At the time of the original Claim, the employee did not mark anything under the Second Injury Fund Section, so the Second Injury Fund was not added and made a party to the Claim.

The employee filed a First Amended Claim against the employer-insurer with the Division of Workers' Compensation on December 3, 2010. The only amendment made to the First Amended Claim was under part(s) of body injured. The employee added, "Tinnitus and Meniere's disease" to "Hearing loss/ears" as parts of the body injured. The employee did not

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mark anything in the Second Injury Fund section, so the Second Injury Fund was not added as a party to the First Amended Claim for Compensation.

The employee filed a Second Amended Claim on December 16, 2011. The only amendment to that Claim was marking the box in Section 11 filing a Claim against the Second Injury Fund for permanent total disability and listed Meniere's disease as a pre-existing condition with an alleged date of previous disease of 2002.

I find that the Claim against the Second Injury Fund was filed more than 6 years after the date of the alleged injury; and more than 5 years after the original Claim against the employer-insurer.

I find that the employee's First Amended Claim supplemented the body parts affected and is a "claim" against the employer-insurer under Section 287.430 RSMo. I find that the Second Amended Claim did not supplement or amend the First Amended Claim with regard to the original facts or the parts of the body injured. The Second Amended Claim was amended with the sole change of marking the Second Injury Fund section and adding the Second Injury Fund as a party. I find that the Second Amended Claim was not a "claim" against the employer-insurer under Section 287.430 RSMo. I find that the Second Amended Claim was filed one year and 13 days after the First Amended Claim.

I find that the Claim against the Second Injury Fund was not filed within two (2) years after the date of the alleged injury or within one (1) year after a Claim was filed against the employer or insurer. I find that the employee's Claim for Compensation against the Second Injury Fund was not timely filed and her Claim is barred by the Statute of Limitations under Section 287.430 RSMo. The employee's Claim against the Second Injury Fund is denied.

Based on my ruling on the Statute of Limitation, the remaining issues are moot and will not be ruled upon.

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I certify that on **10-24-17** I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By **Am**

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**M**ade by:

**Lawrence C. Kasten**

Chief Administrative Law Judge

Division of Workers' Compensation