Phillip Guinn v. Solo Cup

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Reversing Award and Decision of Administrative Law Judge)

**Injury No.:** 06-136330

**Employee:** Phillip Guinn

**Employer:** Solo Cup (settled)

**Insurer:** Zurich American Insurance Co. (settled)

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the parties' briefs, and considered the whole record. Pursuant to § 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge.

The hearing before the administrative law judge was conducted on January 26, 2017. The parties asked the administrative law judge to resolve the following issues: (1) whether employee sustained an incident of occupational disease on or about March 1, 2006, and if so, did it arise out of and in the course of employment with employer; (2) whether employee gave employer proper notice of injury under § 287.420; (3) whether the claim was filed within the time prescribed under § 287.430; (4) whether employee sustained any permanent disability as a consequence of the alleged occupational disease, and if so, what is the nature and extent of disability; and (5) whether the Second Injury Fund is liable for payment of additional permanent partial disability or permanent total disability compensation.

The administrative law judge determined as follows: (1) employee sustained an occupational disease on March 1, 2006, arising out of and in the course of employment; (2) employee provided proper notice to employer; (3) employee filed his claim against the Second Injury Fund within the time allowed by law; (4) employee sustained permanent partial disability as consequence of occupational disease; and (5) the Second Injury Fund is liable for permanent total disability benefits effective March 1, 2006, when employee's condition became permanent and he reached maximum medical improvement. The judge also found that employee's spouse, Priscilla Guinn, was qualified as a dependent.

The Second Injury Fund filed a timely application for review with the Commission alleging the administrative law judge erred in finding: (1) that the reasonably discoverable and apparent date that employee sustained an occupational injury/disease was May 22, 2013; (2) that employee's claim against the Second Injury Fund was timely; (3) the nature and extent of disability for tinnitus and hearing loss; and (4) that employee is permanently and totally disabled as a result of his preexisting Parkinson's disease combined with his alleged work-related hearing loss and tinnitus.

For the reasons set forth below, we reverse the award and decision of the administrative law judge.

Employee's date of birth is December 20, 1949, making him about 56 years old when he left his employment with Solo Cup on March 1, 2006. The alleged occupational injury date is March 1, 2006. Employee began working with Solo Cup in February 1987. Employee was first diagnosed with mild Parkinson's disease on August 18, 2003. As of January 2006, the

Employee: Phillip Guinn

Injury No.: 06-136330

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diagnosis changed to Stage II, Parkinson's disease. Employee applied for and received Social Security disability benefits shortly after retiring from Solo Cup in 2006, apparently based on Parkinson's disease. Transcript, page 565.

There is ample evidence in the record that employee was exposed to harmful industrial noise in the employer's workplace for a prolonged period, and that as a result of that exposure, he sustained some level of disability in the form of hearing loss.¹ During his employment, industrial hygiene studies established an excessive noise level was present in the extruder area where he worked. The noise level was rated at over 90 decibels. Employer began to require employees to wear ear plugs and ear muffs during his employment. Employee had to remove the protection temporarily, when there was a need to hear co-workers. They would have to shout into his ear to be heard. By 1993 his hearing tests performed at the direction of the employer, began to show a threshold shift.

Employee acknowledged that his hearing declined and reached a plateau in the early 2000's. Employee's test results included medical referrals in 2002, 2003 and 2005. Transcript, page 167. By 2005, a calculated hearing impairment was documented at 15.0 for the left ear and 17.5 for the right ear, with the binaural loss being 15.4. Transcript, page 164. His average hearing threshold had a greater than ten decibel shift (when compared with his baseline from 1987), according to the employer's testing in April 2005. Transcript, page 127. Employee's hearing loss was also apparent to his wife, Priscilla Guinn, who testified about his diminished hearing and ringing in the ears prior to March 2006, and the need for her to be within a few feet from him in order to be heard. Employee's hearing impairment and tinnitus did not improve, by his own admission, after leaving the employer.

Employee was experiencing ringing in his ears possibly as early as 1987-1989. He reported this to Dr. Michael North while he was still working at Solo and the doctor advised that he should find other work. As of the time of the hearing before the administrative law judge, the ringing in employee's ears continued at the same level.

Employee filed a claim for compensation solely against the employer alleging hearing loss and tinnitus on January 17, 2013. Employee settled his claim against the employer on April 11, 2014. Employee then filed his initial claim against the Second Injury Fund on May 7, 2014.

On May 22, 2013, Dr. P. Brent Koprivica conducted an independent medical examination. At that time, the doctor offered the opinion that employee's previously documented hearing loss was caused by occupational exposure at the Solo Cup Company. He also opined that employee had tinnitus, causing disability, which related to work exposures at Solo. These confirming diagnoses were obtained after employee had filed a claim solely against the employer exclusively for hearing loss and tinnitus on January 17, 2013.

The administrative law judge found that it was not until Dr. Koprivica's diagnosis of May 22, 2013, that it was reasonably discoverable and apparent that employee had sustained either of the claimed injuries herein (tinnitus or hearing loss). We disagree. When a formal claim for compensation is filed, alleging that an employee has sustained occupational hearing loss and tinnitus, the date of such filing must reasonably be deemed to establish when, at the latest, it had become reasonably discoverable and apparent that an injury has been sustained due to occupational exposure. We find, therefore, that it was reasonably discoverable and apparent to employee that he had sustained an injury related to his occupational exposure on January 17, 2013.

1 The evidence, including testimony of Dr. Alan Parmet and the testing results reviewed by Dr. Koprivica, also suggest that some of the hearing loss may be from age or other nonoccupational causes.

**Injury No.: 06-136330**

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We conclude that the dispositive issue in this case is the employee's failure to meet the statute of limitation for the claim against the Second Injury Fund.

**Section 287.063.3, 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. (Emphasis ours)

**Section 287.430, provides:**

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.

A claim against the second injury fund shall be filed within two years after the date of the injury or within one year after a claim is filed against an employer or insurer pursuant to this chapter, whichever is later.

Under § 287.063 the statute of limitation for occupational disease claims begins to run after the date the condition is apparent and reasonably discoverable. The determination of when an occupational disease becomes reasonably discoverable and apparent to an employee is a factual one. *Lawrence v. Anheuser Busch Cos.,* 310 S.W. 3d 248, 252 (Mo. App. 2010). We have found that it was reasonably discoverable and apparent to employee that he had sustained injury related to his occupational exposure on January 17, 2013, when he filed his claim against the employer/insurer alleging occupational diseases in the form of hearing loss and tinnitus.

On that date, the statute of limitations under § 287.430 for claims against the Second Injury Fund began to run, and said claim is barred unless it was filed either within one year of January 17, 2013, or two years from the date of injury, whichever is later. The date of injury identified by employee in his claim and used throughout this proceeding is March 1, 2006. This corresponds to employee's last date of exposure to injurious noise while working for employer. We conclude that March 1, 2006, is the relevant "date of injury" for purposes of § 287.430 RSMo.

Employee did not file his claim against the Second Injury Fund until May 7, 2014, more than one year after January 17, 2013, and more than two years after March 1, 2006. Employee has not met either permissible date for filing his claim against the Second Injury Fund.²

² We acknowledge the provisions within § 287.197.7 and Division rule 8 CSR 50-5.060(8) pertaining to claims for occupational deafness. Because we conclude that employee's claim against the Second Injury Fund alleging both tinnitus and hearing loss was, in any event, untimely filed pursuant to § 287.430, we need not consider or determine herein whether those authorities should be read to require us to impose an earlier two-year statute of limitations running the "date of disability" (here, April 1, 2006), or alternatively whether those authorities describe an independent tolling mechanism modified by the "reasonably discoverable and apparent" test set forth under § 287.063.3.

We conclude the employee has not met his burden of proof to establish a timely claim against the Second Injury Fund, in compliance with the statute of limitation. Therefore, the claim against the Second Injury Fund is barred. All other issues presented by the parties are moot and we will not address them further.

We reverse the award of the administrative law judge.

Employee's claim against the Second Injury Fund is denied because employee failed to file his claim against the Fund within the statute of limitation.

The award and decision of Administrative Law Judge L. Timothy Wilson is attached solely for reference.

Given at Jefferson City, State of Missouri, this 21 st day of August 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Attest:


Jehn J. Larsen, Jr., Chairman


Reid K. Forrester, Member

SEPARATE OPINION FILED

Curtis E. Chick, Jr., Member


**Injury No. 06-136330**

After a thorough review of the record, the briefs, and the applicable Missouri authorities relevant to this matter, I am convinced that the Commission majority errs in denying this claim based on a conclusion that employee's claim against the Second Injury Fund is barred by the statute of limitations.

Th