KEVIN W. TAYLOR
v.
G.UB.MK CONSTRUCTORS
No. E2019-00461-SC-R3-WC
Tennessee Workers Compensation
Supreme Court of Tennessee, Special Workers’ Compensation Appeals Panel, Knoxville
June 2, 2020
Session: February 24, 2020
MAILED-APRIL 16, 2020
Appeal
from the Chancery Court for Roane County No. 2018-3Frank V.
Williams III, Chancellor
An
employee filed a workers’ compensation claim alleging
he suffered permanent hearing loss in the course and scope of
his employment. The trial court ruled that the
employee’s hearing loss was compensable and, based on
an anatomical impairment rating of 14.1 percent, awarded the
employee 56.4 percent vocational disability for loss of
hearing in both ears. We affirm the trial court’s
judgment as to compensability but find that the award of
vocational disability was excessive. We modify the award of
vocational disability to thirty percent for loss of hearing
in both ears.
Tenn.
Code Ann. § 50-6-225(e) (2014) (applicable to injuries
occurring before July 1, 2014) Appeal as of Right; Judgment
of the Chancery Court Affirmed as Modified
D.
Brett Burrow, Nashville, Tennessee, for the appellant,
G.UB.MK Constructors.
Edward
L. Summers, Knoxville, Tennessee, for the appellee, Kevin W.
Taylor.
Sharon
G. Lee, J., delivered the opinion of the court, in which
Robert E. Lee Davies, Sr.J., and Kristi M. Davis, Sp.J.,
joined.
OPINION
SHARON
G. LEE, JUSTICE.
I.
On
January 10, 2018, Kevin W. Taylor sued G.UB.MK Constructors
(“the Employer”) for workers’ compensation
benefits in the Roane County Chancery Court (“the trial
court”). Mr. Taylor alleged that he suffered profound
hearing loss and tinnitus from exposure to loud industrial
noise in the course and scope of his employment. The Employer
denied that Mr. Taylor’s hearing loss was work-related
and claimed as affirmative defenses that Mr. Taylor failed to
provide adequate notice of his injury and that his claim was
barred by the statute of limitations.
The
case was tried on February 27, 2019. Mr. Taylor testified and
presented the testimony of Danny Jones and the deposition
testimony of Dr. Charles G. Sewall. The Employer presented
the deposition testimony of Dr. S. Mark Overholt, Dr. J.
Leland Hughes, Jr., and industrial hygienist James M.
Bradford.
Trial
Testimony
Mr.
Taylor was sixty-three years old at the time of trial. After
graduating from high school, he studied welding in vocational
school and became a certified welder. He also joined the
Virginia Army National Guard and became certified as a
wheeled vehicle mechanic. Mr. Taylor worked as a millwright
and welder for approximately fifteen years before joining the
International Brotherhood of Boilermakers Union in 1999. As a
boilermaker, he performed maintenance of machinery and
equipment at fossil-fuel steam plants.
Mr.
Taylor worked as a union boilermaker from January 2000 until
November 2013. The union assigned him to work at fossil-fuel
steam plants on approximately forty-four occasions, and
twenty-three of these assignments were at the
Employer’s sites.1 Each assignment with the Employer
lasted an average of about five to six weeks. The shortest
assignment lasted four days; the longest assignment lasted
over twenty-eight weeks. Mr. Taylor’s last job with the
Employer was from October 10 to November 22, 2013, at the
Kingston Steam Plant.
Danny
Jones, a co-worker of Mr. Taylor’s who worked as a
union boilermaker for forty years, testified about the work
environment and noise level at various steam plants,
including the Employer’s Kingston Steam Plant site. He
described the noise level at the plants as being so loud that
workers had to “holler at each other” even if
they were “almost nose to nose.” According to Mr.
Jones, the Employer’s Kingston Steam Plant had nine
boilers. The Employer would shut down one boiler for the
boilermakers to perform maintenance while the other eight
boilers remained operational. The work environment was loud
and confined. The pneumatic tools used by the boilermakers
created additional noise. Mr. Jones described the noise made
by the “air tuggers,” which were used to lift and
move heavy objects, as being so loud that the workers had to
use hand signals because they could not communicate verbally.
He likened it to the loud continuous popping sound of a
“jake brake” on an eighteen-wheeler truck.
Mr.
Taylor also testified about the noise at the Kingston Steam
Plant. The air tuggers described by Mr. Jones were in
operation and generating noise forty to forty-five percent of
his ten- or twelve-hour work shift. Mr. Taylor said that the
noise at the Kingston Steam Plant during his last stint in
October to November 2013 was the same level as it had been
during other times he had worked there and when he worked at
other locations. He did not recall a single or specific
incident that made his hearing loss worse during his last
work assignment with the Employer.
Mr.
Taylor agreed that there were many factors that went into his
hearing loss over forty years while working in the
construction industry with heavy equipment, as a boilermaker
from 1999 to 2013, and in his twenty years of service in the
Army National Guard. In the National Guard, he was required
to participate in target practice each year, shooting
forty-five rounds with an M16 rifle. Mr. Taylor described the
M16 as not “near as loud” as shooting a 12-gauge
shotgun but “a little bit louder” than shooting a
.22 caliber rifle. He wore rubber earplugs for noise
protection during target practice.
In
2006, Mr. Taylor’s employers became more stringent
about requiring hearing protection and he began using
earplugs, which “helped some” with the noise at
the fossil-fuel steam plants. Although the Employer posted
signs advising workers about noise and requiring them to wear
protection, Mr. Taylor was not given ear muffs or told to use
double hearing protection. In his earlier years working as a
boilermaker, there were times that he worked in the same
conditions without any hearing protection at all.
During
the last couple of years that he worked as a boilermaker, Mr.
Taylor “got to noticing [his hearing loss] more,”
but he had started raising the volume on his television as
early as 2008 and by 2012 began using closed captioning on
his television because it was difficult to understand. At the
time of trial, he was still using closed captioning on his
television, turning up the volume on his telephone so he
could hear, and having trouble hearing people if they turned
away from him or were more than twenty feet away. Mr. Taylor
said he did not know what had caused his hearing loss, and he
was first advised that his hearing loss was noise-induced
when he saw Dr. Charles G. Sewall on June 30, 2014, for a...
