MICHAEL NERI, Employee, v. U. S. STEEL CORP., SELF-INSURED, Employer/Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 3, 2007
PRACTICE & PROCEDURE - STATUTE OF LIMITATIONS. Where the employer had represented expressly, in its report to the employee on his employer-conducted hearing test, that the employee=s hearing loss was Anot related to job noise exposure,@ and where the judge expressly credited the employee=s testimony that he relied to his detriment on this representation in not immediately filing a claim, the compensation judge=s conclusion that the statute of limitations was tolled regarding the employee=s hearing injury was not clearly erroneous and unsupported by substantial evidence, notwithstanding the employer=s recommendation at the time of the hearing report that the employee seek medical attention and notwithstanding the fact that the employee had long-term service on his union=s safety committee and was well familiar with the use of hearing protection equipment.
Determined by: Pederson, J., Johnson, C. J., and Rykken, J.
Compensation Judge: Jerome G. Arnold
Attorneys: Russell J. LaCourse, LaCourse Law Office, Duluth, MN, for the Respondent. Michael I. Cohen, Ordman, Nord, Spott & Hurd, Duluth, MN, for the Appellant.
WILLIAM R. PEDERSON, Judge
The self-insured employer appeals from the compensation judge's denial of its statute of limitations defense against liability for a January 21, 1993, Gillette-type injury. We affirm.
Michael Neri has worked since 1972 in various capacities for U. S. Steel Corporation, both inside and outside of its taconite plant. Prior to his employment by U. S. Steel Corporation [the employer], Mr. Neri [the employee] underwent a pre-employment physical exam that included an audiogram that revealed some evidently minimal bilateral hearing loss. Also prior to that employment, the employee had evidently been rejected for military service due to a hearing problem unspecified in the record. Many of the jobs performed by the employee over the years of his employment with the employer have apparently required the employee to work in a context of intermittent but frequent substantial noise. These jobs have included general plant labor around big machinery, arc welding, air wrench and sledge hammer work while laying track, operating a rotary drill to make blasting holes in rock, and working alongside cranes, air compressors, loaders with backup alarms, and diesel and other trucks with hydraulic pumps. Over the course of the employee=s work for the employer, the employer has apparently remained always in general compliance with industry-wide noise exposure safety standards, has provided hearing protection equipment for employees working at noisy jobs, and has conducted periodic audiogram testing on its employees and reported results to each individual. The employee in turn has evidently complied with requirements that he wear hearing protection equipment where such requirements are posted, although he has often gone without such protection where no requirement is posted.
On July 11, 1990, the employee was notified that a recent audiogram of his hearing conducted on behalf of his employer had indicated that his hearing in both ears was satisfactory for hearing and understanding conversation but that he had had a change in hearing in both ears. A few years later, on January 21, 1993, the employee was informed by the employer that his then recent hearing tests had revealed that his hearing in his left ear was now sufficiently below average to suggest a likelihood that the employee might have some difficulty hearing or understanding conversations. The notice went on to state that, A[b]ecause of the hearing loss reported above you should see an ear doctor,@ adding, A[t]his loss is not related to job noise exposure.@ On the date of this notice, the employee was forty years old and was earning a weekly wage of about $608.00, and the employer, as it has been at all times relevant herein, was self-insured against workers= compensation liability.
Since 1995, the employee has spent fewer of his hours each week working at the employer=s plant and more of his hours each week working at his union hall, but the level of noise in the plant environment has evidently gone on undiminished. On September 27, 2001, Dr. Brian Pfeifer, the employer=s dispensary physician, wrote to the employee, informing him that his hearing test on that date had Ashowed abnormalities of the left ear that should be evaluated by an ear specialist.@ The notice went on to request that the employee Aconsult your personal physician for advice and referral for this condition@ and to advise the employee that, A[e]ven though you are not noise exposed at work, you should wear hearing protection in any and all required areas.@ On the date of this notice, the employee was forty-eight years old and was earning a weekly wage of $619.14.
On December 17, 2001, the employee sought treatment with Dr. Mark Rhodes of the Duluth Clinic. Near the top of his records for that date, Dr. Rhodes reported that the employee=s work as a blaster with the employer subjected him to Asignificant@ noise exposure, going on to note that an audiogram conducted of the employee=s hearing on that date had revealed a Amild to severe sensorineural hearing loss bilaterally@ that was Aconsistent with noise exposure.@ Dr. Rhodes concluded that the employee did not require hearing amplification, but he recommended Athat he be very careful with noise exposure@ and that he use Aear muffs in addition to insert earphones.@ The following day, December 18, 2001, the employee gave notice to the employer of a claim for workers= compensation benefits consequent to a work-related hearing loss. On January 28, 2002, the employer wrote to the employee regarding his claim, noting that it had not yet received any report or medical bill from Dr. Rhodes and that, based on information received to date, it was denying the employee=s claim. It explained that its denial was based on its industrial hygienist=s conclusion that the employee=s job did not expose him to any higher than normal workplace noise, on an expert medical opinion that the frequency ranges of the employee=s hearing loss were not those usually associated with industrial exposure, and on various arguable aspects of the employee=s preemployment history and nonwork-related experience.
About two years later, on May 5, 2004, the employee received another notice from Dr. Pfeifer, informing him that his hearing test on that date Ashowed changes indicating a medical problem in both ears@ and suggesting that he should Aconsult your personal physician or see an ear specialist@ and Acontinue wearing hearing protection in any and all required areas.@ Later that year, on September 24, 2004, supplemented on September 27, 2004, the employee filed a medical request, seeking payment of unpaid balances owed to the Duluth Clinic consequent to a work-related hearing loss allegedly incurred on September 27, 2001. On October 12, 2004, the employee underwent another hearing evaluation at the Duluth Clinic, performed by physician=s assistant Kimberly Lakhan. In her report on that date, Ms. Lakhan indicated that the employee=s recent audiogram, although essentially stable in comparison to his audiogram of December 17, 2001, had revealed A[m]ild sloping to severe symmetric sensory neural hearing loss,@ and she A[s]trongly encouraged [the employee] to wear hearing protection,@ noting that a workers= compensation form had been completed on that date. The following day, October 13, 2004, the employer filed its response to the employee=s medical request, in which it denied both that the employee=s hearing loss had arisen out of and in the course of his employment and that the medical expenses at issue were reasonable and necessary medical treatment.
On January 10, 2005, the employee underwent an independent medical examination, including a complete audiogram, for the employer by otolaryngologist Dr. Melvin Sigel. In his report on January 14, 2005, Dr. Sigel indicated that, although the employee=s 1972 audiogram had revealed already then some hearing deficiency, the 1972 deficiency would not be rated as more than a 0% whole-body impairment, whereas his current hearing-related impairment would be rated at 1% of the whole body. Dr. Sigel opined further that the primary cause of the employee=s advancing hearing loss was Ahis constant exposure to noise while employed at [the employer],@ a secondary contributing factor being the employee=s use of guns over the years. Dr. Sigel indicated further that he did not believe that the employee would have experienced the loss of hearing since 1972 aside from his work-place noise exposure. He opined further that the employee would eventually require the use of hearing aids in treatment of his disability. In follow-up on March 31, 2005, Dr. Sigel indicated that a review of additional materials sent to him by the employer=s attorney regarding the employee=s work-place exposure to sound had not changed his opinion. In further follow-up to the employer=s attorney on April 15, 2005, Dr. Sigel indicated that his earlier reference to Aconstant@ noise on the employee=s job was inaccurate, but he went on to indicate that even intermittent noise of the sort to which the employee had been exposed at work could have a cumulative effect of causing noise-induced hearing loss. He clarified also that, since the employee=s hearing had been essentially stable since 1990, the employee=s current hearing loss was primarily related to noise exposure prior to 1990.
On August 9, 2005, the employee filed a claim petition, alleging entitlement to medical benefits A[t]o be determined,@ to retraining benefits, to compensation for permanent partial disability to 1% of his whole body, and to penalties pursuant to Minn. Stat. ' 176.225, all consequent to the hearing loss injury that he allegedly sustained at work on September 27, 2001. In its answer filed August 30, 2005, the employer denied liability for the alleged injury, asserting also that the employee had failed to give timely notice of such an injury and had failed to commence a timely proceeding for benefits. The employer asserted also that the employee=s A[t]o be determined@ medical benefits claim failed to state a claim for which relief could be granted, that, with regard to the retraining claim, no plan or proposal had been submitted in accordance with the applicable rehabilitation rules, that the time for seeking retraining was not tolled, and that penalties were not appropriate in this case because the employer had colorable defenses to the employee=s claim.
The employee=s medical request and his claim petition came on for hearing on November 3, 2005, and the matters were consolidated. Issues at hearing included whether the employee had suffered a work-related hearing loss, the date or dates applicable to any such loss, whether the employee=s claim to any consequent benefits was barred by the statute of limitations, and, if not, the extent of the employee=s permanent partial disability and the employee=s entitlement to payment of certain medical bills. At hearing, the employer did not contest the employee=s hearing loss but argued in part that there was no evidence that that loss was work related. In his own testimony at hearing, the employee acknowledged that prior to about 1985 he had belonged to a black powder gun club, that prior to about 1990 he had done some nonwork-related operation of a chainsaw, that prior to 1994 he had been a hunter of birds, grouse, and deer, and that he continues to do his own lawn mowing and snowblowing. He testified further, however, that he has normally worn hearing protection equipment during these activities. Also testifying at hearing was Laurie Potter, the employer=s senior staff supervisor in charge of industrial hygiene, loss prevention, and security. Ms. Potter testified in some detail as to the employer=s standards and testing procedures regarding hearing safety at its facilities and with regard to various jobs that the employee had performed over the years. She testified in part, with supporting data related to each of the jobs performed by the employee, that the noise to which the employee was subject at work was well within established reasonable standards when averaged over an eight-hour day. She acknowledged in response to the judge=s personal questioning late in the hearing, however, that the standards by which she worked, averaging as they did the total work-place noises over the course of eight hours, could offer no guidance with regard to the potential injurious impact of single, isolated, and particularly loud brief noises.
By findings and order filed December 29, 2005, the compensation judge concluded in part that the employee had sustained, consequent to his work for the employer, two separate Gillette-type hearing injuries - - an injury to his left ear alone culminating on January 21, 1993, and a bilateral hearing injury culminating on September 27, 2001. The judge concluded further that, Aboth singularly and in combination,@ these two work injuries constituted substantial contributing factors in both the employee=s developing a 1% permanent partial disability as claimed herein and the employee=s need for the medical treatment at issue. The judge also found expressly that the employer was estopped from claiming a statute of limitations defense to liability for the 1993 injury, in that it had misrepresented the employee=s hearing loss to him at the time as being nonwork-related, which representation the employee had relied on to his detriment. Nor, the judge found, was notice of that injury insufficient, in that the employer had had knowledge of information sufficient to be put on inquiry as to the condition=s work-relatedness. The employer appeals from the judge=s denial of its statute of limitations defense to liability for the 1993 injury.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@ Minn. Stat. ' 176.421, subd. 1 (1992). Substantial evidence supports the findings if, in the context of the entire record, Athey are supported by evidence that a reasonable mind might accept as adequate.@ Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ Id.
The compensation judge found in part that the employee had sustained, and that the employer had proper notice of, a work-related hearing loss on January 21, 1993, and that the employer was estopped from claiming a statute of limitations defense against liability for that injury, based on the employer=s representation to the employee at the time that the injury was not work-related. As the sole issue on appeal, the employer contends that the judge erred in that conclusion by neglecting to consider the fact that the employer specifically advised the employee at the time that Abecause of the hearing loss . . . you should see an ear doctor.@ The employee had apparently disregarded this advice, and, suggesting that the employee should have suspected and explored on his own a causal relationship between his condition and his work, the employer argues that the employee=s long-term service on his union=s safety committee, together with his professed long-term use of hearing protection while engaged in various noisy activities at home, renders Aunbelievable@ and Ainconceivable@ the employee=s detrimental reliance on any representation by the employer that his work was not a factor in his hearing loss. Nor is there, the employer argues, any evidence of an intent on the part of the employer at the time to deceive or lull the employee into a false sense of security with respect to the workplace noise exposure. We are not persuaded that the judge=s conclusion is unsupported by substantial evidence.
The compensation judge=s decision on this issue is very evidently based on his conclusion that the employee was Aa most credible witness@ in testifying that he relied in 1993 on the employer=s express representation that A[t]his loss is not related to job noise exposure.@ The employer in this case was certainly at least as familiar with the potential work-place hearing hazard as was the employee, its denial of the hearing loss=s work-relatedness was premised on an established history of medical testing, and that denial was express and unambiguous. Notwithstanding the employer=s arguments as to the employee=s long-term service on his union=s safety committee and his familiarity with hearing protection equipment, we cannot conclude that the judge was not in the best position to assess the credibility of employee=s reliance on the employer=s representation. See Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988) (assessment of a witness's credibility is the unique function of the trier of fact), citing Spillman v. Morey Fish Co., 270 N.W.2d 781, 31 W.C.D. 187 (Minn. 1978). Nor do we find any basis for concluding that the propriety of the judge=s decision in cases like this depends on whether or not the employer=s representation was affirmatively intended to deceive the employee. See Neuberger v. Hennepin County Workhouse, 340 N.W.2d 330, 332, 36 W.C.D. 348, 351 (Minn. 1983) (the statute was tolled where A[t]he evidence indicates that the employer=s [actions], whether or not purposely deceptive, were the primary reasons for the employee=s failure to file a compensation claim@ (underscoring added)); see also Kahn v. State, 289 N.W.2d 737, 745-46, 32 W.C.D. 351, 366 (Minn. 1980). It is enough that the employee reasonably relied on the representation under the circumstances.
In deference to the judge=s assessment of the employee=s credibility, and because the judge=s decision was not otherwise unreasonable, we affirm the compensation judge=s conclusion that the statute of limitations was tolled with regard to the employee=s 1993 work injury. Pursuant to that conclusion, we affirm also the judge=s award of permanent partial disability benefits, medical benefits, and reimbursement of attorney fees pursuant to Minnesota Statutes ' 176.081, subdivision 7, based on that and the employee=s 2001 Gillette-type work injury. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
 See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960). The employer has appealed also from findings relative to the judge=s award of benefits for a September 27, 2001, Gillette-type injury, but the employer has not briefed that issue, and therefore we will not address it. See Minn. R. 9800.0900, subp. 1 (A[i]ssues raised in the notice of appeal but not addressed in the brief shall be deemed waived and will not be decided by the court@).
 This was the employee=s wage about three months later, on the date of an April 23, 1993, injury not here at issue. We find no record of the employee=s wage on January 21, 1993.
 The employee withdrew his claim for penalties at hearing.
 While it is true that the statute of limitations issue related to the 1993 injury is the sole issue on appeal, pursuant to Minnesota Rules 9800.0900, subp. 1, it is a mistake to imply, as the employee appears to do in his responsive brief, that the employer has conceded the truth of all findings not directly related to that issue, simply by virtue of the fact that it has not briefed them. In its notice of appeal, the employer clearly Aappealed@ nominally from all but Finding 22 of the judge=s findings.
 Although medical causation is not directly at issue here on appeal, the employee=s credibility was also evidently a factor in the judge=s decision to rely on the opinion of the employer=s own independent medical expert, Dr. Sigel, which the judge found expressly to have been of adequate foundation, that the employee=s exposure to noise at work was the primary cause of his advancing hearing loss. With regard to the foundation for Dr. Sigel=s opinion, the judge noted in particular that Dr. Sigel Anot only had the employee=s credible history of noise exposure but also the noise exposure testing results of the self-insured [employer],@ Awhich were provided to him for his supplemental reports.@