No. 01-00174 (2002). Perdue Farms, Inc. v. Mayes.

Case DateMay 01, 2002
CourtKentucky
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...

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