No. 00-00484 (2002). Catlettsburg Refining v. Tucker.

• Case Date: January 30, 2002
• Court: Kentucky

Kentucky Workers Compensation 2002. No. 00-00484 (2002). Catlettsburg Refining v. Tucker CATLETTSBURG REFINING, LLC AND MARATHON ASHLAND PETROLEUM, LLC PETITIONERS VS. RICHARD TUCKER and HON. SHEILA C. LOWTHER, CHIEF ADMINISTRATIVE LAW JUDGE RESPONDENTSOPINION ENTERED: January 30, 2002CLAIM NO. 00-00484APPEAL FROM HON. SHEILA C. LOWTHER, CHIEF ADMINISTRATIVE LAW JUDGE AFFIRMING * * * * * * BEFORE: LOVAN, Chairman, STANLEY and GARDNER, Members.STANLEY, Member. Catlettsburg Refining, LLC and Marathon Ashland Petroleum, LLC ("Catlettsburg"), appeal from an Opinion and Award rendered on April 25, 2001, by the Hon. Sheila C. Lowther, Chief Administrative Law Judge ("CALJ"), granting the respondent, Richard Tucker ("Tucker"), an award of permanent partial disability ("PPD") benefits based upon a work-related loss of hearing generated by many years of exposure. Over the objections of Catlettsburg, the CALJ determined that Tucker's claim was timely filed and satisfied all the requirements of the statute of limitations for cumulative trauma injuries pursuant to the holding of the Supreme Court of Kentucky in Alcan Foil Products v. Huff, Ky., 2 S.W.3d 96 (2000) and its progeny. Catlettsburg also appeals from an order issued July 12, 2001 by the CALJ overruling in relevant part its petition for reconsideration. On appeal, Catlettsburg raises a variety of issues, of which only two are clearly and concisely identified within the confines of its brief as required by 803 KAR 25:010, § 20(6) and CR 76.12(4)(c). The remaining questions broached for review are concealed within the body of these two arguments. First, Catlettsburg reasserts the same argument it made before the CALJ that Tucker's hearing loss claim is barred by the statute of limitations for cumulative trauma injuries. In making this argument, the petitioner declares that the CALJ "refused to consider the issue of whether the employer had presented proof of circumstances sufficient to infer that the Plaintiff knew, or should have known, that his hearing loss was work-connected" at least a decade ago. According to Catlettsburg, a showing of "minimum constructive knowledge" is all that is required and this knowledge, as a matter of law, should have been projected upon Tucker by the CALJ as early as 1989. Secondly, Catlettsburg argues that the CALJ erred by rejecting its expert witness in favor of those more propitious to Tucker, and by not ruling that the rebuttable presumption of work-relatedness expressly established in KRS 342.7305 was overcome by that same evidence. Within its second argument, Catlettsburg also asserts a third argument that the procedure for determining a claimant's entitlement to benefits under KRS 342.7305 is a two stage process. According to the petitioner, "the first stage is the liability stage," involving a determination by the fact-finder as to whether the claimant has more than an 8% functional impairment "due to hearing loss in combination with appropriate test patterns and occupational exposure history." The second stage, argues the petitioner, requires a determination by the CALJ as to "whether the pattern of hearing loss demonstrated on the objective medical testing is consistent with the pattern known to be present in cases of occupationally-related hearing loss." In other words, the fact-finder must first pick an impairment rating and then make her own medical determination by examining test results as to how much of that impairment rating is work-related versus nonwork-related. The petitioner contends the CALJ did not "respect" this two-step process as part of her legal analysis, but rather erred by attempting to reshape it as one stage through the application of a "judicially created presumption." According to Catlettsburg, the CALJ ceased her analysis of this evidence after only the first stage by adopting that evidence most favorable to Tucker. Catlettsburg also contends within its second argument that, in applying the rebuttable presumption provided in KRS 342.7305, the CALJ, through her method of analysis, improperly shifted the burden of proof away from Tucker, as claimant, to it, as employer. As per Catlettsburg, this occurred because the CALJ found the expert witnesses of record favorable to Tucker to be "more persuasive" while rejecting the only expert witness favorable to its own theory of the case. In making this fourth argument, Catlettsburg cites to the United States Supreme Court case of Director, Office of Workers' Compensation Programs, Dept. of Labor v. Greenwich Colleries, 512 U.S. 267, 114 S.Ct. 2251 (1994), "which struck down a presumption in conflict with Section 7 of the Administrative Procedure Act, 5 U.S.C. Section 556(d)," to illustrate that such reallocations of the burden of proof are legally improper. Also within the context of its second argument, Catlettsburg asserts that the CALJ erred by not evaluating as part of her decision the contents of the assorted hearing tests provided by the various expert witnesses as to high frequency hearing loss in opposition to low frequency hearing loss. Catlettsburg contends that had she done so, the CALJ would have been obligated, as a matter of law, to find in its favor. The petitioner's fifth and final issue is also concealed within the confines of its second argument. As a matter of law, pursuant to KRS 342.315 and KRS 342.7305, the Commissioner of the Department of Workers' Claims was required to order Tucker to attend an independent hearing loss evaluation to be performed by a university evaluator. Although this evaluation occurred, the report by the university evaluator was not timely prepared. More specifically, it was filed by the examining university physician later that the fifteen-day time period allotted by statute. Consequently, Catlettsburg argues that it was error, both for the CALJ to have admitted the university evaluator's report into evidence and to have required the cost of that examination to be borne by the petitioner. In making this argument, Catlettsburg cites to a former ruling by the Board in Jackie L. Mullins v. Mosey Trucking, Claim No. 97-00513, (rendered September 24, 1999 and not appealed). After having carefully reviewed the evidence of record, and the applicable law, we find no merit in any of the above arguments. We consequently affirm in toto the CALJ's decision in this action. Tucker was born on October 19, 1943, and is a resident of Ashland, Kentucky. He has a high school education with no vocational or specialized job training. After serving in the U.S. Navy, Tucker entered the employ of Ashland Petroleum Company ("Ashland") in 1965. He was assigned to the company's Finley, Ohio refinery from 1965 through 1980. Tucker was transferred back to Catlettsburg in 1981. Catlettsburg was a subsidiary corporation of Ashland. That refinery has since been purchased by Marathon Ashland Petroleum, LLC ("Marathon"). Throughout his employment at the various refining plants, Tucker has worked either in a "labor gang" or as an operator. At the time of Tucker's retirement on January 31, 2000, he was classified as the "No. 1 operator." As an operator, it was Tucker's responsibility to check equipment such as pumps, compressors, heaters, fans, and motors on a regular basis in order to discern if they were in need of repair. Tucker stated he was guaranteed forty hours per week throughout his employment history, but often worked seven days a week and twelve hours...