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                TENNESSEE BUREAU OF WORKERS' COMPENSATION
               IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                                AT KNOXVILLE

KEVIN HANNEKEN,                                             ) Docket No.: 2016-03-0523
         Employee,                                          )
v.                                                          ) State File No.: 37977-2016
CONSOLIDATED NUCLEAR                                        )
SERVICES, LLC,                                              ) Judge Pamela B. Johnson
          Employer.                                         )


                                COMPENSATION HEARING ORDER


        This matter came before the undersigned Workers' Compensation Judge on November
2, 2016, for a Compensation Hearing pursuant to Tennessee Code Annotated section 50-6-
239 (20 15). The central legal issue is whether the Employer, Consolidated Nuclear Services,
LLC (CNS), is liable for the Employee's, Kevin Hanneken's, pre-existing hearing loss when
he had an ascertainable rating at the time his CNS employment began. 1 For the reasons set
forth below, by a preponderance ofthe evidence, this Court concludes CNS is not liable for
Mr. Hanneken's pre-existing hearing loss. Accordingly, the Court finds that Mr. Hanneken is
entitled to nine percent permanent partial disability to the whole person for his bilateral
hearing loss.

                                                History of Claim

       The following facts were established through the stipulations and evidence presented
during the hearing. Mr. Hanneken is a sixty-one-year-old resident of Loudon County,
Tennessee, with a high school and technical college education. He has a forty-year work
history as a machinist, working for CNS in the same occupation since 2009.

       Over the course of his work history, Mr. Hanneken's work exposed him to repetitive-
occupational noise, which caused binaural hearing loss and resulted in permanent-reduced
hearing capacity. When he began working for CNS, Mr. Hanneken had a pre-existing
1
  A complete listing of the technical record, stipulations, and exhibits admitted at the Compensation Hearing is attached
to this Order as an appendix.

                                                            1
hearing loss of five-percent permanent medical impairment to the body as a whole. During
his subsequent employment with CNS, Mr. Hanneken's impairment due to hearing loss
increased by nine-percent permanent medical impairment to the body as a whole. Presently,
Mr. Hanneken has an aggregate impairment of fourteen percent to the body as a whole due to
binaural hearing loss. Mr. Hanneken remains employed by CNS with no lost time due to his
hearing loss.

       For his hearing loss, Mr. Hanneken came under the care of Dr. Charles G. Sewall,
board-certified in otolaryngology. Dr. Sewall examined and evaluated Mr. Hanneken on two
occasions in April 2016 and reviewed the audio grams conducted at the Y -12 Medical
Department and those performed by audiologists at Dr. Sewall's office. During his
deposition, Dr. Sewall testified that Mr. Hanneken provided the following history: "He did
tell me he had a family history of hearing loss. His mom had some hearing loss when she
was young. He was a machinist for 40 years which is exposure to noise, and he described
ringing noise in both ears." (Ex. 1 at 7.) Mr. Hanneken's hearing loss, for which Dr. Sewall
examined and evaluated him, was more likely than not noise-induced occupational hearing
loss.

        Dr. Sewall testified by deposition and opined that Mr. Hanneken's nine-percent
increase in hearing loss, since his hire by CNS, represented more than fifty percent of his
fourteen-percent aggregate permanent medical impairment to the body as a whole. !d. at 8.
Dr. Sewall further opined that Mr. Hanneken's increase in hearing loss "progressed as a
result of his exposure[.]" !d.

        At the Compensation Hearing, Mr. Hanneken asserted that Tennessee Code Annotated
section 50-6-304 (20 15) applies to this case. Relying on Bennett v. Howard Johnsons Motor
Lodge, 714 S.W.2d 273, 279 (Tenn. 1986), Mr. Hanneken argued that CNS, as the last
successive employer, taking Mr. Hanneken as he was found at the time of the accident, is
liable for the entire resulting disability, regardless of any pre-existing condition. As such,
Mr. Hanneken averred that CNS, as the last employer, is liable to Mr. Hanneken for the
aggregate fourteen-percent permanent medical impairment to the whole person with lifetime
future medical benefits.

       CNS countered that the application of the "last injurious injury" rule to a claim falling
within the Workers' Compensation Reform Act of 2013 is not well known at this time,
particularly since the law is no longer liberally construed in favor of the employee. CNS
further asserted that an impairment ascertainable at the time employment began should be
excluded from a later award regardless of the application of the last injurious injury rule.
CNS averred the intent behind the last injurious iJ1jury rule in part was that it was too difficult
to parse out an impairment from exposures suffered during prior employments when an
employee has suffered a gradual injury. CNS asserted this is not the case here because it
administered a pre-employment hearing test, which demonstrated a definable hearing
                                                2
impairment at that time. As a result, in addition to medical benefits, CNS averred Mr.
Hanneken's permanent partial disability award should be limited to nine-percent permanent
partial disability to the whole person, which is the difference between the rating at the time
employment began and the rating when Mr. Hanneken reached maximum medical
improvement.

                         Findings of Fact and Conclusions of Law

       At a Compensation Hearing, Mr. Hanneken must establish by a preponderance of the
evidence that he is entitled to the requested benefits. Willis v. All Staff, No. 2014-05-0005,
2015 TN Wrk. Comp. App. Bd. LEXIS 42, at *18 (Tenn. Workers' Comp. App. Bd. Nov. 9,
2015); see also Tenn. Code Ann. § 50-6-239(c)(6) (2015) ("[T]he employee shall bear the
burden of proving each and every element of the claim by a preponderance of the
evidence."). In evaluating the evidence, the Court shall not remedially or liberally construe
the Workers' Compensation Law in favor of either party but must construed the law fairly,
impartially, and in accordance with basic principles of statutory construction favoring neither
the employee nor employer. Tenn. Code Ann. § 50-6-116 (20 15).

        To be entitled to the requested benefits, Mr. Hanneken must prove that his bilateral
hearing loss arose primarily out of and in the course and scope of his employment with CNS.
An injury "arises primarily out of and in the course and scope of employment" only if it has
been shown by a preponderance of the evidence that the employment contributed more than
fifty percent in causing the injury, considering all causes. Tenn. Code Ann. § 50-6-
102(14)(B) (2015). An injury causes death, disablement, or the need for medical treatment
only if it has been shown to a reasonable degree of medical certainty that it contributed more
than fifty percent in causing the death, disablement, or need for medical treatment,
considering all causes. Tenn. Code Ann.§ 50-6-102(14)(C) (2015). "Shown to a reasonable
degree of medical certainty" means that, in the opinion of the physician, it is more likely than
not considering all causes, as opposed to speculation or possibility. Tenn. Code Ann. § 50-6-
102(14)(E) (2015).

       In the present case, the parties stipulated to the following: At the inception of his
employment with CNS, Mr. Hanneken had a five-percent permanent medical impairment to
the body as a whole due to pre-existing hearing loss. During his subsequent employment
with CNS, Mr. Hanneken's hearing loss increased by nine-percent permanent medical
impairment to the body as a whole. Presently, Mr. Hanneken has an aggregate hearing loss
of fourteen-percent permanent medical impairment to the body as a whole. Mr. Hanneken's
hearing loss, for which Dr. Sewall examined and evaluated him, was more likely than not
noise-induced occupational hearing loss.

       Additionally, Dr. Sewall testified that Mr. Hanneken's nine-percent increase in
hearing loss, since his hire by CNS, represented more than fifty percent of his fourteen-

                                               3
percent aggregate permanent medical impairment to the body as a whole. !d. at *8. Dr.
Sewall further opined that Mr. Hanneken's increase in hearing loss "progressed as a result of
his exposure[.]" !d.

        Given the parties' stipulations and the evidence before this Court, the sole issue is
whether CNS is liable for Mr. Hanneken's pre-existing hearing loss when he had an
ascertainable permanent medical impairment at the time his CNS employment began. Mr.
Hanneken argued CNS is liable for the fourteen-percent aggregate permanent medical
impairment to the whole person pursuant to Tennessee Code Annotated section 50-6-304
(20 15), which provides:

       When an employee has an occupational disease, the employer in whose
       employment the employee was last injuriously exposed to the hazards of the
       disease, and the employer's insurance carrier, if any, at the time of the
       exposure, shall alone be liable, for the occupational disease, without right to
       contribution from any prior employer or insurance carrier.

        However, the Workers' Compensation Law does not define hearing loss as an
occupational disease, but instead defines it as a gradual injury. Section 50-6-1 02(14) (20 15)
states in part:

       "Injury" and "personal injury" mean an injury by accident, a mental injury,
       occupational disease including diseases of the heart, lung and hypertension, or
       cumulative trauma conditions including hearing loss, carpal tunnel or any other
       repetitive motion conditions, arising primarily out of and in the course and
       scope of employment[.]

        While hearing loss is not an occupational disease governed by section 50-6-304, the
inquiry does not end there. A rule similar to section 50-6-304 applied to gradually occurring
injuries prior to the Workers' Compensation Reform Act of 2013. See Mahoney v.
NationsBankofTenn., NA., 158 S.W.3d 340,346 (Tenn. 2005)(overruled on other grounds);
Building Materials Corp. v. Britt, 211 S.W.3d 706, 713 (Tenn. 2007). The prior rule
operated to place liability for an employee's disability on the last employer if working
conditions at the last employer aggravated the employee's pre-existing injury. !d. The
Mahoney Court summarized the "last injurious injury" rule as follows:

       [A] subsequent employer is responsible for a gradually-occurring injury that
       began at a prior employer [if] the employee's condition was aggravated or
       advanced due to working conditions at the second employer. It is not enough
       that the employee continued to suffer from the effects of an injury while
       employed by a second employer; rather, to be compensable, there must be a
       progression of the employee's injury.
                                              4
!d.

       The Workers' Compensation Law prior to the Reform Act of 2013 included a
statutory component of liberal construction, which does not exist under present law. See
Tenn. Code Ann. § 50-6-116 (20 15). The interpretation involved meant finding coverage for
employees in workers' compensation cases where an injured employee might otherwise go
without a remedy. Tenpenny v. Batesville Casket Co., Inc., 781 S.W.2d 841, 845 (Tenn.
1989). Additionally, application of the "last injurious injury" rule under prior law generally
served in part to avoid a court's speculative apportionment between successive employers
and/or carriers.

       This is not the case here. Under the Reform Act of20 13, an employer is liable only to
the extent that the employee's injury arose primarily out of and in the course of employment.
 Tenn. Code Ann. § 50-6-102(14) (2015) (emphasis added). Moreover, the Workers'
Compensation Law provided that an "injury" shall not include the aggravation of a pre-
existing disease, condition, or ailment unless it can be shown to a reasonable degree of
medical certainty that the aggravation arose primarily out of and in the course and scope of
employment. !d. at (14 )(A). Furthermore, here, the degree of pre-existing impairment is
readily ascertainable without speculation. As such, this Court holds that the "last injurious
injury" rule does not apply in this case. Its application should be applied on a case-by-case
basis. To hold an employer liable for a known impairment that pre-existed the employment
would only serve to discourage an employer from hiring any person with a known,
ascertainable impairment.

       For the reasons set forth above, based upon the preponderance of the evidence and as
a matter oflaw, this Court concludes CNS is not liable to Mr. Hanneken for his five-percent
permanent medical impairment to the whole person resulting from his pre-existing, bilateral
hearing loss. Accordingly, the Court finds that Mr. Hanneken is entitled to nine-percent
permanent partial disability to the whole person for his bilateral hearing loss and medical
benefits in accordance with the Workers' Compensation Law.

         IT IS, THEREFORE, ORDERED as follows:

      1. CNS shall provide Mr. Hanneken with medical treatment for his bilateral hearing loss
         in accordance with Tennessee Code Annotated section 50-6-204 (2015).

      2. The amount of permanent disability benefit is $858.00 per week.

      3. Pursuant to Tennessee Code Annotated section 50-6-207(3) (2015), Mr. Hanneken is
         entitled to 450 weeks times a nine-percent impairment rating, which equates to
         $34,749.00 in permanent partial disability benefits.

                                               5
    4. After a Compensation Hearing Order entered by a Workers' Compensation Judge has
       become final in accordance with Tennessee Code Annotated section 50-6-239( c )(7)
       (20 15), compliance with this Order must occur in accordance with Tennessee Code
       Annotated section 50-6-239(c )(9) (20 15). The Insurer or Self-Insured Employer must
       submit confirmation of compliance with this Order to the Bureau by email to
       WCComplian e.Program@tn.gov no later than the fifth business day after this Order
       becomes final or all appeals are exhausted. Failure to submit the necessary
       confirmation within the period of compliance may result in a penalty assessment for
       non-compliance.

   5. The filing fee for this this cause is taxed to the Employer, Consolidated Nuclear
      Services, pursuant to Rule 0800-02-21-.07 (2015) of the Tennessee Compilation
      Rules and Regulations.

   6. Consolidated Nuclear Services shall prepare and file a statistical data form within ten
      business days of the date of this order, pursuant to Tennessee Code Annotated section
      50-6-244 (20 15).

       ENTERED this the 30th day of November,         2~




                                    ]2-                      '~M&~
                                          HON. PAMELA B. JOHNSON
                                          Workers' Compensation Judge

Right to Appeal:

      Tennessee Law allows any party who disagrees with this Compensation Hearing Order
to appeal the decision to the Workers' Compensation Appeals Board or the Tennessee
Supreme Court. To appeal your case to the Workers' Compensation Appeals Board, you
must:

   1. Complete the enclosed form entitled: "Compensation Hearing Notice of Appeal."

   2. File the completed form with the Court Clerk within thirty calendar days of the date
      the Workers' Compensation Judge entered the Compensation Hearing Order.

   3. Serve a copy of the Compensation Hearing Notice of Appeal upon the opposing party.



                                             6
    4. The appealing party is responsible for payment of a filing fee in the amount of
       $75.00. Within ten calendar days after the filing of a notice of appeal, payment must
       be received by check, money order, or credit card payment. Payments can be made in
       person at any Bureau office or by United States mail, hand-delivery, or other delivery
       service. In the alternative, the appealing party may file an Affidavit oflndigency, on
       a form prescribed by the Bureau, seeking a waiver ofthe filing fee. The Affidavit of
       Indigency may be filed contemporaneously with the Notice of Appeal or must be filed
       within ten calendar days thereafter. The Appeals Board will consider the Affidavit of
       Indigency and issue an Order granting or denying the request for a waiver of the filing
       fee as soon thereafter as is practicable. Failure to timely pay the filing fee or file the
       Affidavit of lndigency in accordance with this section shall result in dismissal of the
       appeal.

   5. The party filing the notice of appeal, having the responsibility of ensuring a complete
      record on appeal, may request, from the Court Clerk, the audio recording of the
      hearing for the purpose of having a transcript prepared by a licensed court reporter
      and filing it with the Court Clerk within fifteen calendar days of the filing of the
      Compensation Hearing Notice of Appeal. Alternatively, the party filing the appeal
      may file a joint statement of the evidence within fifteen calendar days of the filing of
      the Compensation Hearing Notice of Appeal. The statement of the evidence must
      convey a complete and accurate account of what transpired in the Court of Workers'
      Compensation Claims and must be approved by the Workers' Compensation Judge
      before the record is submitted to the Clerk of the Appeals Board. See Tenn. Comp. R.
      & Regs. 0800-02-22-.03 (20 15).

   6. After the Workers' Compensation Judge approves the record and the Court Clerk
      transmits it to the Workers' Compensation Appeals Board, the appeal will be
      docketed and assigned to an Appeals Board Judge for review. At that time, a
      docketing notice shall be sent to the parties. Thereafter, the party who filed the notice
      of appeal shall have fifteen calendar days after the issuance of the docketing notice to
      submit a brief to the Appeals Board for consideration. Any opposing party shall have
      fifteen calendar days after the filing of the appellant's brief to file a brief in response.
      No reply briefs shall be filed. Briefs shall comply with the Practice and Procedure
      Guidelines of the Workers' Compensation Appeals Board. See Tenn. Comp. R. &
      Regs. 0800-02-22-.03(6) (2015).

      To appeal your case directly to the Tennessee Supreme Court, the Compensation
Order must be "final" (see Tennessee Code Annotated section 50-6-239(c)(7)) and you must
comply with the Tennessee Rules of Appellate Procedure.




                                               7
                                       APPENDIX

Technical Record:
   • Petition for Benefit Determination, filed May 23, 2016;
   • Dispute Certification Notice, filed June 17, 2016;
   • Request for Initial Hearing, filed July 6, 20 16;
   • Request for Initial Hearing, filed July 13, 2016;
   • Initial Hearing Order, entered on August 4, 2016;
   • Stipulation, filed August 30, 2016
   • Witness and Exhibit List submitted by the Employee, filed September 8, 2016;
   • Pre-Hearing Statement of Employee, filed September 8, 2016;
   • Stipulation of Fact, filed September 29, 2016;
   • Dispute Certification Notice, filed October 21, 20 16;
   • Order of Rescheduling, entered October 25, 2016;
   • Employer's Pre-Hearing Statement, filed October 25, 2016;
   • Employer's Witness and Exhibit List, filed October 25, 2016; and
   • Stipulation, filed October 31, 2016.

        The Court did not consider attachments to T.echnical Record filings unless admitted
into evidence during the Compensation Hearing. The Court considered factual statements in
these filings or any attachments to them as allegations unless established by the evidence.

Stipulated Findings of Facts:

By Stipulation, filed August 30, 2016, the parties agreed:
   • That the Employee had pre-existing permanent partial hearing loss of five percent to
      the body as a whole at the inception of employment with Employer.
   • During his subsequent employment with the Employer, Employee's permanent
      hearing loss partial anatomical impairment has increased by an additional nine percent
      to the body as a whole.
   • Employee has an aggregate PPI BAW of fourteen percent.
   • The Employee continues presently with Consolidated Nuclear Security, LLC without
      any lost employment due to the hearing loss.
   • The applicable workers' compensation rate is $858.00 per week.
   • If Tenn. Code Ann. § 50-6-304 applies to the facts of this case, then Employer is the
      "last employer" as defined in that statute.

By Stipulation of Fact, filed September 29, 2016, the parties agreed:
   • That at all time material Charles G. Sewall, M.D. was a duly licensed medical doctor
      engaged in his board-certified practice of otolaryngology (ENT) located in Oak Ridge,
      Tennessee.

                                             8
    •That at all time material Dr. Sewall was an adult resident of the State of Tennessee,
     and competent to testifY, having personal knowledge of the same. That at all times
     material, Dr. Sewall was qualified to testifY as an expert regarding the medical
     practice of otolaryngology.
   • That Dr. Sewall examined and evaluated the Plaintiff, KEVIN HANNEKEN,
     including his reported history of forty years of employment as a machinist until the
     present time, a review of the audio grams at Y -12 Medical Department, as well as
     those performed by audiologists at Dr. Sewall's office. That the hearing loss for
     which Dr. Sewall examined and evaluated the Plaintiff was, more likely than not, a
     noise-induced occupational hearing loss, which is an issue in this lawsuit.
   • That if Dr. Sewall were in person at trial, he would testifY under oath, within a
     reasonable degree of medical certainty as described above.

By Stipulation, filed October 31, 2016, the parties agreed:
   • The sole issue that needs to be decided is whether Employer is liable for Employee's
      pre-existing hearing loss when he had an ascertainable rating at the time his
      employment began.

By Announcement of the Parties' Attorneys at the Compensation Hearing, the parties
stipulated to the information contained in Section I. Plaintiff Background Information in the
Pre-Hearing Statement of Employee, which sets forth the following:
    • Mr. Hanneken is sixty-one years old and married.
    • Mr. Hanneken's "injury occurred" by "Repetitive occupational noise exposure."
    • The nature of the injury is "Binaural hearing loss."
    • His physical limitations are "Permanent reduced hearing capacity."
    • His hobbies include "wood working and hiking."
    • His education includes "Graduated high school 1972, Technical college 1979, [and] S.
       IL College 1992."

By Announcement of the Parties' Attorneys at the Compensation Hearing, the parties further
agreed:
   • Mr. Hanneken provided notice to Consolidated Nuclear Services, LLC.
   • Mr. Hanneken filed his Petition for Benefit Determination within the applicable
       statute of limitations.

Exhibits:
   • EXHIBIT 1: Deposition Transcript of Charles Gregory Sewall, M.D.;




                                             9
                             CERTIFICATE OF SERVICE

        I hereby certifY that a true and correct copy of the Compensation Hearing Order was
sent to the following recipients by the following methods of service on this the 30th day of
November, 2016.

 Name                      Certified Via         Via      Service sent to:
                           Mail      Fax         Email
George H. Buxton,                                  X      ge_Q.rgebuxton@buxton lawfirm .com
Employee's Attorney
Landon Lackey,                                     X      Landon.Lackey@cns.doe.gov
Employer's Attorney




                                                           SHRUM, COURT CLERK
                                                         c.courtclerk@tn.gov




                                            10
