Opinion
C.A. No. 00A-07-011-CG
Date Submitted: December 4, 2000.
Date Decided: December 15, 2000.
On Appeal from the Industrial Accident Board. Reversed.
Kyle Kemmer, Schmittinger Rodriguez, P.A., Wilmington, Delaware, Attorney for Appellant.
Scott L. Silar, Marshall, Dennehey, Warner, Coleman Goggin, Wilmington, Delaware, Attorney for Appellee.
ORDER
This 15th day of December, 2000, upon consideration of the papers filed by the parties and the record in this case, it appears that:
(1) Appellant, William H. Persinger, brought this appeal from a decision of the Workers' Compensation Hearing Officer on behalf of the Industrial Accident Board ("Board") dated July 7, 2000. The Board denied Persinger compensation for permanent impairment to his hearing allegedly caused by his work activities for Appellee, DaimlerChrysler Corporation ("Chrysler").
(2) The parties do not dispute most of the facts leading up to this appeal as set forth by the Board in its decision. At the time of the hearing, Persinger was fifty-seven years old and had worked for Chrysler for thirty-four years. At the Board hearing, Persinger testified that, during most of this time, he worked with air guns in a very noisy environment. Persinger spent fifteen to twenty years working in the tire room, which he considered to be the noisiest of the jobs he held at Chrysler. Following the job in the tire room, Persinger spent five years doing repair work on an assembly line, using an air gun with six inches of his ear. From 1995 to 2000, Persinger worked in the materials department operating a fork lift. Persinger testified that this job was as noisy as the assembly line. Recently, Persinger moved to the sanitation department, which, he testified, had hardly any noise compared to the other jobs.
(3) Persinger testified that he underwent a hearing test in 1989, which he believed was in connection was a hearing safety program initiated by the Occupational Safety and Health Administration (OSHA). At that time, Persinger indicated on a checklist that he used earplugs. Persinger testified that he did not recall using earplugs prior to that time. On cross-examination, Persinger testified that he told doctors in 1999 that he had worn earplugs for five years, but noted that this was only an estimate. Persinger stated that he did not wear ear protection in the tire room or on the assembly line, but that he wore earplugs the entire time he worked as a forklift operator.
(4) Persinger underwent additional hearing tests in 1990 and in 1995. After the 1995 tests, the plant nurse informed Persinger that he had a hearing loss, but Persinger testified that he was not told that the hearing loss was work related, nor was he referred for further treatment. In March 1999, Persinger underwent another hearing test. The plant nurse then referred Persinger to Dr. Desi, who sent him to Dr. Suh. Dr. Desi and Dr. Suh informed Persinger that his hearing loss was probably work related.
(5) At Chrysler's request, Persinger went to see Dr. Joseph Ramzy, an otolaryngologist. Persinger testified that Dr. Ramzy told him that his hearing loss was work related and suggested that Persinger wear a hearing aid.
(6) Dr. Ramzy testified via deposition at the hearing on behalf of Persinger. Dr. Ramzy testified that Persinger had a bilateral hearing loss resulting in monaural permanent impairments of 46.9 percent to the right ear and 41.3 percent to the left ear. Dr. Ramzy opined that the hearing loss is causally related to Persinger's work at Chrysler. Dr. Ramzy testified that Persinger told him that he had been aware of a hearing loss for approximately five years and that he had noticed a progressive problem with speech discrimination. Persinger stated that he had to read lips for even routine communication. Persinger also had discomfort with loud sounds and ringing in his ears.
(7) In his written decision, the Board denied Persinger's petition for compensation because the claim was barred by the applicable statute of limitations. The Board found that Persinger should have known of the probable compensable nature of his injury in 1995 so that his petition, filed in February 2000, was untimely. In support of his appeal, Persinger argues that the Hearing Officer erred as a matter of law and fact by finding that Persinger should have known of the probable compensable nature of his injury in 1995 and that Persinger's petition was barred by the statute of limitations.
(8) The role of this Court, in reviewing a decision of the Board, is to determine whether the Board's factual findings are supported by substantial evidence. Histed v. E. I. duPont de Nernours, Del. Supr., 621 A.2d 340, 342 (1993). "Substantial evidence" has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Olney v. Cooch, Del. Supr., 425 A.2d 610, 614 (1981). This Court does not weigh the evidence, determine questions of credibility, or make its own factual findings. Johnson v Chysler Corp., Del. Supr., 213 A.2d 64, 66 (1965). The Court must. also determine whether the Board's decision is free from legal error. The Court's review of alleged errors of law by the Board is de novo. Brooks v. Johnson, Del. Supr:, 560 A.2d 1001, 1002 (1989).
(9) Nineteen Del. C. § 2361(a) provides that in a personal injury case, a claim for compensation must be brought "within 2 years after the accident." This statute of limitations does not begin to run until the claimant, "as a reasonable person, should recognize the nature, seriousness and probable compensable nature of the injury or disease." Geroski v. Playtex Family Products, Del. Supr., No. 414, 1995, Walsh, J. (Jan. 24, 1996), Order at 2, (citing Anderson v. State, Del. Supr., No. 41, 1992, Horsey, J. (Apr. 9, 1992)(ORDER)).
(10) In its written decision, the Board identified the critical issue before the Board as the statute of limitations. The Board noted that Chrysler agreed that Persinger's hearing loss was a result of his employment at Chrysler and that the degree of impairment was as identified by Dr. Ramzy. The Board determined that Persinger knew the nature and seriousness of his hearing loss in 1995 when he began to have problems communicating and he was told of his hearing loss. On appeal, Persinger does not dispute that determination. Both parties agree that the only issue, as identified by the Board, was when Persinger, as a reasonable person, should have recognized the probable compensable nature of his hearing loss.
(11) The Board initially noted that no doctor informed Persinger that his hearing loss was work related until March 1999 and that it was not until then that Persinger was sent for further treatment. However, the Board found that, "while the fact that no doctor informed Claimant that his hearing loss was work related is certainly important evidence, it is not conclusive." Analogizing Persinger's case to that of Willis v. American Original, Del. Super., C. A. No. 90A-MY-2, Graves, J., (Sept. 27, 1991). Mem. Op., the Board concluded that Persinger, as a reasonable person, should have become aware that his hearing loss was caused by his work in 1995. The Board noted that Persinger testified that his hearing tests started in 1989 as the result of an 051-IA program on hearing safety and that Persinger began wearing earplugs in 1989 or 1995. The Board stated:
What is significant is that there was an 051-IA safety program in place specifically concerning hearing safety, which endorsed wearing ear protection and had workers tested for hearing loss. In light of the hearing program, which advocated wearing hearing protection and tested workers for hearing loss, I find that a reasonable person, knowing that he had been working in a noisy environment for (as of 1995) over twenty-five years, should have recognized that his hearing loss was related to his work activities.
(12) Initially, the Court finds that, as a matter of law, the Board applied the correct legal standard in order to determine the date of Persinger's injury, that is, the time that Persinger, as a reasonable person, should have recognized the nature, seriousness, and probable compensable nature of his hearing loss. The Court also finds that the Board's conclusion that Persinger was aware of the nature and seriousness of his hearing loss in 1995 is supported by substantial evidence in the record below.
(13) However, the Court finds that the Board's determination that Persinger also understood the probable compensable nature of his hearing loss in 1995 is not supported by substantial evidence. The Board was correct in its determination that the fact a doctor did not specifically inform Persinger that his hearing loss was work related is not conclusive. As noted by the Board, this Court, in Willis v. American Original, Del. Super., C. A. No. 90AMY-2, Graves, J., (Sept. 27, 1991), Letter Op., stated that the reasonable person standard does not require that a claimant must be told by his or her doctor that an injury is work related. Id at 5. Rather, there must exist in the record some evidence to establish that the claimant should have been aware that the injury for which compensation is sought was probably compensable. Id Willis noted that the awareness of an injury could come from other sources such as "educational programs initiated by the employer or from other knowledge of coworkers experiencing similar problems." Id at 6.
(14) Presumably based upon the finding in Willis that a claimant's knowledge of the probable compensable nature of his injury could come from "educational programs initiated by the employer," the Board determined that, in light of the OSHA safety program, Persinger should have known of the probable compensable nature of his hearing loss. However, the Court finds that there is inadequate evidence contained in the record to support the Board's determination that, "there was an OSHA safety program in place specifically concerning hearing safety, which endorsed wearing ear protection and had workers tested for hearing loss." The only evidence in the record regarding the OSHA program came from Persinger himself, who testified only that, "[OSHA] I guess they requested that every person in the plant or I guess maybe different jobs that have a hearing test. And that's all I can tell you about it."
(15) The record contains no evidence from which could be determined the nature of the OSHA program or what, if any, information on hearing loss was provided to Chrysler employees. As a result, the Court finds that the Board's determination that Persinger should have known, in light of the OSHA program, that because he worked in a noisy environment for over twenty-five years, his hearing loss was a result of his work activities is not supported by substantial evidence in the record.
Therefore, for the foregoing reasons, the Court hereby REVERSES the decision of the Board denying Persinger's Petition to Determine Compensation Due.