MELVIN STEINKE, Applicant

BUTLER MANUFACTURING COMPANY, Employer

LIBERTY MUTUTAL INSURANCE COMPANY, Insurer

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on December 1, 1992. The employer/insurance carrier submitted an answer to the petition. At issue is whether the applicant sustained an occupational hearing loss arising out of and in the course of his employment with the employer, and if so, nature and extent of disability and liability for medical expense.

The commission has carefully reviewed the entire record in this matter and hereby reverses the administrative law judge's Findings and Order. The commission makes the following:

The applicant worked as a machine operator for a clothing manufacturer between 1935 and 1941. He described this employment to Dr. Chrzan as an "averagely-noisy" environment. Between 1941 and 1952 he worked for another manufacturer in a noisy environment running rip saws and molders. He worked in non-noisy employment between 1952 and 1959. From 1960 to 1970 he was an inspector for the employer, and was exposed to loud noise from metal sheers and punch presses for five or six hours per day. In 1971, he obtained a transfer to the employer's tool crib. There he was exposed to less noise, although there was a noisy repair shop approximately ten feet away from him. Approximately six years prior to his retirement, which occurred on May 29, 1982, the employer first provided him with hearing protection. The applicant has not been exposed to significant, loud noise from any other sources.

The applicant noticed that he had hearing loss and ringing in his ears while still employed by the employer. However, it was not until July 1992, that he was first told by a physician, Dr. Willis McMillan, that his employment with the employer was causative of his hearing loss. He had purchased a hearing aid with his own money in 1988.

Dr. McMillan found bilateral neurosensory hearing loss together with tinnitus which were caused or at least significantly contributed to by his employment with the employer. The administrative law judge interpreted section 102.12, Stats., to require dismissal of the applicant's claim. That statute provides two things. First, that no claim may be filed unless the employe notifies his employer of his injury within 30 days after its occurrence or after the employe knew or ought to have known of the nature of the disability and its relation to the employment. However, failure to give this notice does not bar recovery if the employer is not misled thereby. Second, the statute provides that if no compensation is paid and no claim filed within two years from the date of injury, or from the date the employe knew or ought to have known of the disability and its relation to the employment, compensation is barred. However, compensation is not barred if the employer knew or should have known, within the two-year period, that the employe sustained the injury.

With regard to the 30-day notice provision, the administrative law judge improperly placed the burden on the applicant to demonstrate that the employer had not been misled by the failure to give 30-day notice, and found that such burden had not been carried. Under section 102.12, Stats., the burden is on the employer to show that it was misled by any lack of notice. Manitowoc County v. ILHR Dept., 88 Wis. 2d 430, 436, 276 N.W.2d 755 (1979); Milwaukee v. Industrial Comm., 21 Wis. 129, 136, 124 N.W.2d 112 (1963); Michigan Quartz Silica Co. v. Industrial Comm., 214 Wis. 289, 294, 252 N.W. 682 (1934).  The employer did not present any evidence that it was misled. Furthermore, the fact that the employer provided hearing protection to the applicant six years prior to his retirement, knowing that he had been unprotected and exposed to loud noise for many years while working for it, leads to the overwhelming inference that it was not misled.

With regard to the two-year filing requirement, the Wisconsin Supreme Court state in Trustees, Middle River Sanitorium v. Industrial Comm., 224 Wis. 536, 542, 272 N.W. 483, 485 (1937), which dealt with section 102.12:

"What an employe may think as to the nature of his disability and its relation to his employment is not alone sufficient to start the running of the two-year statute of limitations. To so hold would be to adopt an unthinkably harsh rule. What an employe thinks must be based on something more than suspicion and conjecture in order to start the running of the statute of limitations. Such thought must be based upon knowledge of, or upon reliable information regarding the nature of his disability and its relation to his employment. It is, of course, not necessary that the employe know the precise name employed by the medical profession to describe his disability, but he must have knowledge or an appreciation of the nature his disability and its relation to his employment."

The applicant knew he had hearing problems when he retired from his employment with the employer. However, based on his uncontroverted testimony the inference is drawn that he did not relate his hearing loss to his employment with the employer until 1992, when Dr. McMillan told him such employment had been causative. He did not have reliable knowledge of a work-related disability prior to that time. In addition, given his long exposure to loud noise with the employer between 1960 and 1982, the employer should have known at the time of retirement that he had sustained an occupational hearing loss attributable to that employment.

It was conceded that the amount of compensation at issue for the applicant's occupational hearing loss, including tinnitus, was $4,918.50. The applicant also incurred $700 in hearing aid expense. He is therefore due these amounts less a 20 percent attorney's fee in the amount of $983.70 which shall be deducted from primary compensation.

NOW, THEREFORE, this

Within 30 days from this date, the employer or its insurance carrier shall pay to the applicant as compensation the amount of Three thousand nine hundred thirty-four dollars and eighty cents ($3,934.80); to the applicant as reimbursement for hearing aid expense the sum of Seven hundred dollars ($700); and to applicant's attorney, Douglas Johnson, fees in the amount of Nine hundred eighty-three dollars and seventy cents ($983.70).

Dated and mailed September 10, 1993
ND § 5.19  § 8.2   § 8.47 

Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

cc: 
Attorney Joseph Danas Jr
Attorney Douglas Johnson

185 - CD5546

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

uploaded 2002/06/13