Full Opinion (html_with_citations)

                                                                                  FILED
                                                                                Dec 15, 2022
                                                                                10:58 AM(CT)
                                                                                  TENNESSEE
                                                                             WORKERS' COMPENSATION
                                                                                APPEALS BOARD

             TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                WORKERS’ COMPENSATION APPEALS BOARD

Arlene Ernstes                               )   Docket No. 2020-07-0617
                                             )
v.                                           )   State File No. 66407-2020
                                             )
Printpack, Inc., et al.                      )
                                             )
                                             )
Appeal from the Court of Workers’            )   Heard December 2, 2022
Compensation Claims                          )   in Nashville, Tennessee
Amber E. Luttrell, Judge                     )

                    Reversed in Part, Vacated in Part, and Remanded

This dispute concerns an employee who was exposed to loud machinery over the course
of thirty-three years of employment. Although the employer provided annual hearing
tests, the employee testified she was not aware she may have work-related hearing loss
until meeting with an attorney in 2020, after which she notified her employer of her
alleged hearing loss. The employer denied her claim, asserting the employee knew or
should have known she had a work-related hearing loss, at the latest, when she was first
diagnosed with a hearing loss in 2019. Following a compensation hearing, the trial court
found the employee’s testimony to be credible regarding when she knew or reasonably
should have known she sustained work-related hearing loss, that her notice was timely,
and that her claim was not barred by the statute of limitations. The trial court also found
that the employee’s hearing loss arose primarily out of and in the course and scope of her
employment and awarded permanent disability benefits and future medical benefits made
reasonably necessary by the employee’s injury. Finally, the court ordered the employer
to provide a panel of physicians for the employee to select an authorized treating
physician for future care. The employer has appealed. Upon careful consideration of the
record in this case, we reverse the trial court’s finding that the employee provided timely
notice, vacate the trial court’s order for medical and disability benefits, and remand the
case.

Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding
Judge Timothy W. Conner and Judge Meredith B. Weaver joined.

Gregory H. Fuller and Adam C. Brock-Dagnan, Knoxville, Tennessee, for the employer-
appellant, Printpack, Inc.


                                            1
Jeffrey Boyd, Jackson, Tennessee, for the employee-appellee, Arlene Ernstes

                            Factual and Procedural Background

        Arlene Ernstes (“Employee”) worked for thirty-three years in various positions for
Printpack, Inc. (“Employer”) until 2016. Employee testified that she “did everything in
the plant . . . [f]rom loading trucks to maintenance, cleaning the dyes, and everything.”
Most of her time at work was spent on the plant floor around loud machines, where,
although Employee wore hearing protection, she testified that she could still hear loud
noises. Employer performed annual hearing screens during her employment, but
Employee testified she never received copies of her test results and never had the test
results explained to her. Instead, Employee was provided notes in her mailbox at work
indicating whether she passed or failed a test. She contended that noise exposure while
working for Employer resulted in binaural hearing loss, with an effective date of injury of
March 19, 2016, her last date of employment. 1

        In December 2019, Employee was evaluated by Dr. Karl Studtmann, an ear, nose,
and throat physician, and his physician’s assistant at West Tennessee ENT Clinic.
Employee testified that she saw Dr. Studtmann in 2019 for dizziness and ear pain.
Medical records reflect Employee provided a history of “decreased hearing in both ears
for many years now. She states that it has progressively gotten worse. She denies any
sudden hearing changes or hearing worse in one ear than the other.” Employee reported
she had a sinus infection a few weeks prior to her visit and was told she had fluid in her
ears. She had experienced “some mild dizziness upon standing” that would eventually
pass and noted this had almost completely resolved. Employee was diagnosed with
bilateral sensorineural hearing loss and was referred to West Tennessee Speech and
Hearing for consultation regarding hearing aid use. She was advised to return to the
clinic if the dizziness returned or if she encountered any other issues.

       Employee testified that she first noticed gradual hearing problems when she had to
regularly turn up the volume on her television. Employee’s granddaughters suggested
she get hearing aids, and Employee stated that she thought her hearing issues were related
to her age. Employee contended at trial that the first time she associated her hearing loss
with her employment was while attending a meeting with her husband and his attorney in
September 2020. Following this meeting, Employee, through counsel, sent notice of her
injury to Employer, and, on November 17, 2020, Employee filed a petition for workers’
compensation benefits.

       In June 2021, Employee returned to Dr. Studtmann with complaints of hearing
loss, which she then believed was work-related. Employee noted that her hearing had

1
 For purposes of this appeal, it is undisputed that Employee’s only exposure to loud noises occurred
while working for Employer on its premises.
                                                 2
gotten worse and that she was having difficulty with background noise, high-pitched
voices, and understanding what other individuals were saying when she could not see
their faces. An audiogram revealed “downsloping sensorineural hearing loss, starting in
the mild range and dropping to the severe range.” Dr. Studtmann noted the study was
nearly identical to the audiogram that had been performed in 2019. He opined that her
employment was “likely the etiology for the change in hearing while she was employed
there” and assigned a whole person impairment of ten percent based upon the American
Medical Association’s Guides to the Evaluation of Permanent Impairment, Sixth Edition.

      On November 15, 2021, Employee was seen by Dr. Rande Lazar at the request of
Employer for an independent medical examination. After undergoing a hearing test,
Employee was diagnosed with “sloping sensorineural hearing loss probably in
combination of noise exposure at work of many years on the job and from aging.” Dr.
Lazar noted Employee was wearing hearing aids and stated she could return to see him as
needed.

       On November 17, 2021, the parties took Dr. Studtmann’s deposition, during which
he testified that, based upon Employee’s history and her test results, Employee had
“findings consistent with a noise-induced hearing loss and given that she has progression
of that noise-induced hearing loss over that time period, it’s likely related to noise
exposure that she was receiving during that time period.” Dr. Studtmann testified within
a reasonable degree of medical certainty that this was the primary cause of Employee’s
hearing damage and that she would retain a ten percent impairment to the whole body.

       When questioned about Employee’s office visit in 2019, Dr. Studtmann testified
that Employee presented that day with complaints of dizziness and hearing loss and
explained that sometimes dizziness can be associated with hearing loss. Dr. Studtmann
confirmed Employee’s audiological exam in 2019 revealed downsloping high frequency
sensorineural hearing loss and mild low frequency sensorineural hearing loss. When
questioned with regard to how the results from 2019 corresponded with the audiological
exam conducted in 2021, Dr. Studtmann responded:

       A:     The pattern [is] very similar.

       Q:     I mean, you would go in so far to say they’re nearly identical. Correct?

       A:     Yes, sir.

       Dr. Studtmann testified that he discussed Employee’s hearing loss during her 2019
visit but didn’t “recall that we specifically discussed the etiology for her hearing loss at
that point.” Dr. Studtmann testified that Employee’s hearing loss was significant but
noted that individuals can also have “natural hearing loss that is significant.” He


                                               3
reiterated that the purpose of the second visit was to discuss the etiology of Employee’s
hearing loss, and this was different from the purpose of Employee’s initial visit in 2019.

       At the trial in August 2022, Employee was questioned regarding her prior
deposition testimony, the 2019 hearing evaluation, and her beliefs concerning the cause
of her hearing loss. Employer cited this testimony in support of its assertion that
Employee was not entitled to workers’ compensation benefits because she failed to give
proper notice and her claim was time-barred. Following the trial, the court issued an
order in which it determined that Employee provided timely notice of her work-related
hearing loss to Employer in late 2020. As part of its analysis, the trial court noted that
Employer’s argument conflated “[Employee’s] knowledge that she had hearing loss with
knowledge that it was work-related.” The court determined Employee was credible,
noting her medical records and hearing screens supported her testimony. It also
concluded that although employee did not file her petition within one year of her last day
worked, notice was timely by application of the “discovery rule,” which suspended the
notice requirement and tolled the statute of limitations until such time that Employee
knew or reasonably should have known of her work-related injury. Under the facts
presented, including the causation opinion of Dr. Studtmann, the court concluded she had
proven her hearing loss arose primarily out of and in the course and scope of her
employment. The court awarded Employee permanent partial disability benefits based
upon the impairment rating provided by Dr. Studtmann and lifetime future medical
benefits. The court also ordered Employer to provide a panel of physicians for Employee
to select an authorized treating physician for future medical care. Employer has
appealed.

                                  Standard of Review

       The standard we apply in reviewing a trial court’s decision presumes that the
court’s factual findings are correct unless the preponderance of the evidence is otherwise.
See
Tenn. Code Ann. § 50-6-239
(c)(7) (2022). When the trial judge has had the
opportunity to observe a witness’s demeanor and to hear in-court testimony, we give
considerable deference to factual findings made by the trial court. Madden v. Holland
Grp. of Tenn., Inc.,
277 S.W.3d 896, 898
 (Tenn. 2009). However, “[n]o similar
deference need be afforded the trial court’s findings based upon documentary evidence.”
Goodman v. Schwarz Paper Co., No. W2016-02594-SC-R3-WC,
2018 Tenn. LEXIS 8
, at
*6 (Tenn. Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and
application of statutes and regulations are questions of law that are reviewed de novo with
no presumption of correctness afforded the trial court’s conclusions. See Mansell v.
Bridgestone Firestone N. Am. Tire, LLC,
417 S.W.3d 393, 399
 (Tenn. 2013). We are
also mindful of our obligation to construe the workers’ compensation statutes “fairly,
impartially, and in accordance with basic principles of statutory construction” and in a
way that does not favor either the employee or the employer.
Tenn. Code Ann. § 50-6
-
116 (2022).

                                            4
                                                Analysis

        Employer raises a single issue on appeal: whether the trial court erred in finding
that Employee provided Employer timely notice of a gradually occurring injury as
required by Tennessee Code Annotated section 50-6-201(b). 2 In its argument on appeal,
Employer asserts that the facts and circumstances are such “that a reasonable person in
Employee’s situation should have known that their hearing-related issues were work
related years prior to Employee’s notice to Employer.” Employee contends that she
attributed her hearing loss to old age and provided timely notice once she discovered the
potential causal connection between her hearing loss and her employment.

       Because Employee alleges her hearing loss was due to cumulative trauma, certain
conditions set forth in Tennessee Code Annotated section 50-6-201(b) must be satisfied:

        In those cases where the injuries occur as the result of gradual or
        cumulative events or trauma, then the injured employee or the injured
        employee’s representatives shall provide notice of the injury to the
        employer within thirty (30) days after the employee:

        (1)     Knows or reasonably should know that the employee has
                suffered a work-related injury that has resulted in permanent
                physical impairment; or

        (2)     Is rendered unable to continue to perform the employee’s
                normal work activities as the result of the work-related injury
                and the employee knows or reasonably should know that the
                injury was caused by work-related activities.

       Thus, the determinative issue for our consideration is whether the trial court erred
in concluding Employee provided notice within thirty days of when she knew or
reasonably should have known that her hearing loss was work related and permanent. 3
As such, we must determine when Employee knew or should have known that her
hearing loss was causally related her employment. Employer maintains that notice was
not timely and, in support of this contention, asserts it provided yearly hearing tests for
Employee, the results of which were provided to her. Employer also notes it required

2
  Although Employer raised issues regarding both timely notice and statute of limitations at the
compensation hearing, the only issue identified on appeal was notice pursuant to Tennessee Code
Annotated section 50-6-201(b). Therefore, we need not determine in this appeal whether Employee’s
petition for benefit determination was timely filed.
3
  As the trial court noted, the thirty-day notice period is applicable to injuries occurring between July 1,
2014 and June 30, 2016. Ms. Ernstes’s date of injury was March 19, 2016; therefore, the thirty-day notice
rule applies.
                                                     5
Employee to wear hearing protection and emphasizes it is undisputed that her only
exposure to loud noise was at the workplace. Finally, Employer points to Employee’s
office visit with Dr. Studtmann in 2019, when Employee was advised of her binaural
hearing loss but did not, at that time, question the doctor regarding its etiology.

       Conversely, Employee asserts there is no evidence Employer ever provided her
with hearing test results, recommendations for medical treatment, or an explanation of the
results of her hearing tests. Employee also notes that although she was seen by Dr.
Studtmann in 2019 for complaints of dizziness, he never discussed the cause of her
hearing loss with her until 2021, after she had provided notice to Employer of her
condition. In her brief on appeal, Employee contends the trial court’s analysis was
correct in its “refusal to charge Employee, a non-physician, with knowledge that [her]
hearing loss was work-related.”

        With respect to the issue of when Employee knew or reasonably should have
known her hearing loss was causally related to work, based on our review of the record,
including specific testimony from Employee at trial, we conclude that the preponderance
of the evidence supports a different determination than that made by the trial court. At
trial, Employee was asked to read an excerpt from her March 19, 2021 deposition in
which she testified that she first noticed her hearing loss “three or four years ago.”

        After reading this excerpt, Employee was asked if she sought medical treatment
after first noticing her condition. In response, Employee testified she went to West
Jackson Hearing and had a hearing test performed. She then was asked:

      Q:     Okay. Do you remember doing any hearing screening?

      A:     Yeah, I did the screening and then he checked my ears.

      Q:     And what was the conclusion - - or what were the findings that were
             provided to you at that particular - -

      A:     That I couldn’t hear.

      Q:     Okay. So, they informed you you had a hearing loss?

      A:     Yes.

      Q:     Was it pretty severe?

      A:     Yes.

      Q:     Okay. Did you ask them why?

                                            6
       A:      No.

       Q:      And why is that?

       A:      I knew why. All the loud noises and everything with . . . .

       Q:      Okay. So, in 2019, you knew why you had hearing loss.

       A:      I figured that was why.

       Q:      So, you - - okay. So, you did not think it was because of your age?

       A:      Yeah, I figured it was my age until I - - until he - - when he did the
               test and he was telling what it was, I figured it was my age. And
               then, I figured, no, it was all the noise.

(Emphases added.)

       Based upon Employee’s trial testimony, we conclude that during her 2019 office
visit with Dr. Studtmann, she knew, or reasonably should have known, that her hearing
loss was permanent and was caused by noise exposure while working for Employer.
Therefore, we conclude notice of Employee’s alleged work-related hearing loss, which
was not provided to Employer until late 2020, was not timely provided pursuant to
Tennessee Code Annotated section 50-6-201(b). 4

       Although we conclude Employee’s notice was not timely, the inquiry does not end
there. Tennessee Code Annotated section 50-6-201(a)(1) also provides, in relevant part:

       No compensation shall be payable under this chapter, unless written notice
       is given to the employer within thirty (30) days after the occurrence of the
       accident, unless reasonable excuse for failure to give the notice is made to
       the satisfaction of the tribunal to which the claim for compensation may be
       presented.

Because the trial court concluded Employee had provided timely notice, it did not reach
the issue of whether there was a reasonable excuse for late notice. Having found that

4
  Employee argues that Employer should be charged with actual knowledge of her work-related hearing
loss because it required that she wear hearing protection and undergo regular hearing tests. Without any
evidence in the record to suggest that Employer had retained a medical professional with appropriate
expertise to conduct the tests and relate the results of those tests to Employer, we decline to impute
knowledge to an employer that an employee’s hearing loss was work-related based merely upon the fact
that it required employees to wear hearing protection and to undergo hearing tests.
                                                   7
notice was not timely, however, we must vacate the remaining aspects of the trial court’s
order and remand this case for the trial court to consider whether there was a reasonable
excuse for Employee’s failure to provide timely notice.

       In addition, if the trial court determines Employee failed to provide a reasonable
excuse for her late notice, it must then consider whether and to what extent Employer was
prejudiced by Employee’s failure to provide timely notice within the framework of
Tennessee Code Annotated section 50-6-201(a)(3), which provides:

       No defect or inaccuracy in the notice shall be a bar to compensation, unless
       the employer can show, to the satisfaction of the workers’ compensation
       judge before which the matter is pending, that the employer was prejudiced
       by the failure to give the proper notice, and then only to the extent of the
       prejudice.

        The Tennessee Supreme Court has held that “[t]he reasons for the requirement as
to notice of injury are to give the employer an opportunity to make an investigation while
the facts are accessible and also to enable [the employer] to provide timely and proper
treatment for the injured employee.” Aetna Casualty & Surety Co. v. Long,
569 S.W.2d 444, 449
 (Tenn. 1978). Section 50-6-201(a)(3) clearly places the burden on the employer
to show “that the employer was prejudiced by the failure to give proper notice.”
Tenn. Code Ann. § 50-6-201
(a)(3). Moreover, even if prejudice is shown, an employer is
entitled to relief “only to the extent of his prejudice.”
Id.

       Here, we conclude the preponderance of the evidence establishes that Employee
knew or, at a minimum, believed that her hearing loss was work related at the time of her
appointment with Dr. Studtmann in 2019. Thus, we reverse the trial court’s finding that
Employee provided timely notice of her work-related hearing loss, vacate the trial court’s
order for disability and medical benefits, and remand the case to the trial court to consider
whether Employee had a reasonable excuse for her failure to provide timely notice and, if
no reasonable excuse is provided to the satisfaction of the court, whether and to what
extent Employer was prejudiced by the failure to give proper notice.

                                        Conclusion

       For the foregoing reasons, we reverse in part and vacate in part the trial court’s
order, and we remand the case for further proceedings consistent with this opinion. Costs
on appeal are taxed to Employer.




                                             8
                   TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                     WORKERS’ COMPENSATION APPEALS BOARD

Arlene Ernstes                                        )      Docket No. 2020-07-0617
                                                      )
v.                                                    )      State File No. 66407-2020
                                                      )
Printpack, Inc., et al.                               )
                                                      )
                                                      )
Appeal from the Court of Workers’                     )      Heard on December 2, 2022
Compensation Claims                                   )      in Nashville, Tennessee
Amber E. Luttrell, Judge                              )

                                   CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced
case was sent to the following recipients by the following methods of service on this the 15th day
of December, 2022.

 Name                              Certified   First Class   Via   Via     Sent to:
                                   Mail        Mail          Fax   Email
 Adam C. Brock-Dagnan                                                X     acbrock-dagnan@mijs.com
                                                                           ghfuller@mijs.com
 Jeffrey P. Boyd                                                     X     jboyd@borenandboyd.com
                                                                           scallison@borenandboyd.com
 Amber E. Luttrell, Judge                                            X     Via Electronic Mail
 Kenneth M. Switzer, Chief Judge                                     X     Via Electronic Mail
 Penny Shrum, Clerk, Court of                                        X     penny.patterson-shrum@tn.gov
 Workers’ Compensation Claims




Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov