No. 01-00174 (2002). Perdue Farms, Inc. v. Mayes.
Case Date | May 01, 2002 |
Court | Kentucky |
Kentucky Workers Compensation
2002.
No. 01-00174 (2002).
Perdue Farms, Inc. v. Mayes
PERDUE FARMS, INC.
PETITIONER vs. FRED M. MAYES; HON. RICHARD H. CAMPBELL, JR., ADMINISTRATIVE LAW
JUDGE and HON. SHEILA C. LOWTHER, CHIEF ADMINISTRATIVE LAW JUDGE
RESPONDENTSOPINION ENTERED:
May 1, 2002CLAIM NO. 01-00174APPEAL
FROM HON. RICHARD H. CAMPBELL, JR., ADMINISTRATIVE LAW JUDGE AND HON. SHEILA C.
LOWTHER, CHIEF ADMINISTRATIVE LAW JUDGE AFFIRMING
* * * * * * BEFORE: LOVAN, Chairman, STANLEY and GARDNER, Members.STANLEY, Member. Perdue Farms,
Inc. ("Perdue") appeals from opinion and award rendered December 7, 2001, by
Hon. Richard H. Campbell, Jr., Administrative Law Judge ("ALJ"), granting the
respondent, Fred M. Mayes ("Mayes"), an award of benefits based upon a 17%
permanent partial disability rating as a result of work-related hearing loss.
Perdue also appeals from an order issued February 5, 2001, by Hon. Sheila C.
Lowther, Chief Administrative Law Judge ("CALJ"), overruling its petition for
reconsideration. On appeal, Perdue raises three issues. First, Perdue argues that
ALJ Campbell erred in finding that Mayes' claim was timely. In making this
argument, Perdue contends the ALJ ignored circumstantial evidence that Mayes
was aware that his hearing loss was work-related more than two years prior to
the filing of his application for benefits. Perdue also asserts that Mayes'
testimony regarding when he first learned his hearing condition was
work-related, does not qualify as competent evidence and should not have been
relied upon by the ALJ in awarding benefits. Secondly, Perdue contends the ALJ
erred by failing to carve out a portion of Mayes' work-related hearing loss as
being attributable to industrial noise exposure sustained while working for
earlier employers. According to Perdue, the evidence compels a finding that
prior to entering its employ, Mayes suffered from a pre-existing active
impairment that must now be found noncompensable. Thirdly, Perdue argues that
only that level of impairment that arose within two years prior to the filing
of Mayes' application can be the basis for an award as a matter of law. Having
thoroughly reviewed the evidence of record, the ALJ's decision, and applicable
law, we find no merit in any of these arguments and therefore affirm the
determination rendered below.
Mayes was born on May 21, 1937 and is a resident of Beaver Dam,
Ohio County, Kentucky. He has a bachelor's degree in accounting and an
associate's degree in mining technology. Past relevant work experience includes
nineteen years employment in supervisory and managerial positions with a
company involved in underground coal mining and twenty years employment at a
lighting fixtures factory where he worked in production control. Mayes entered
the employ of Perdue on October 31, 1995, where he was employed as an area
supervisor within the petitioner's poultry processing plant in Cromwell,
Kentucky.
Mayes first noticed problems with his hearing in approximately
1990. At that time, he sought medical attention from a physician who informed
him that he was suffering from high pitched hearing loss and recommended
hearing aids. There is no evidence in the record, however, that the cause of
Mayes' hearing condition was discussed. Mayes admitted, however, that during
his preceding employment with Peabody Coal Company, he was required to work
underground three to four days per week during which time he was exposed to
some loud noises. In this regard, Mayes specifically testified as follows:
Q47 Okay. When you went to Dr. Logan in 1990, was there any
indication that your hearing problems were the result of your exposure to
noises?
A He didn't indicate that. He didn't say.
Q48 Did he tell you why you were having this problem?
A No.
Q49 Did you have any idea that your hearing loss in 1990, for
which you saw Dr. Logan, was a result of exposure to loud noises?
A No, I didn't.
Mayes sought no other medical treatment regarding his hearing
problem prior to the time of entering Perdue's employment in 1995. There is
likewise no indication that upon going to work for Perdue, Mayes underwent any
type of pre-employment physical. However, Mayes testified that because Perdue
was aware of high levels of industrial problems in its plant, it was a company
policy to have all employees submit for hearing tests annually. Consequently,
Mayes underwent a hearing examination at Perdue's request for the first time on
May 15, 1996. At the time of that examination, Mayes estimated his own...
To continue reading
Request your trial