[StBernard] Long-term Occupational Hearing Loss Falls Outside Definition Of Compensable "Accident" Under Any Version Of Louisiana Workers' Compensation Act

[Westley Annis]

Long-term Occupational Hearing Loss Falls Outside Definition Of Compensable
"Accident" Under Any Version Of Louisiana Workers' Compensation Act

Posted by Your Maritime Lawyer on Jul 8, 2011 in Weekly Spotlight

Louisiana Court of Appeal determines state workers' compensation act did not
preclude claims of workers who suffered occupational hearing loss while
employed for two or even three decades at Gulf Coast oil refinery.

Becker v. Murphy Oil Corp., No. 2010-CA-1519 (La. App. 4th Cir. July 7,
2011) (Belsome, J.)

Peter Becker and over forty other plaintiffs brought suit against Murphy Oil
Corporation for hearing loss that resulted from long-term occupational noise
exposure at the company's Meraux refinery, located in a suburb of New
Orleans on Louisiana's Gulf Coast.  Becker's claim, along with the claims of
five other former Murphy workers, were tried together as a first "trial
flight" among the larger group of plaintiffs.

Becker and the co-plaintiffs at trial were long-term employees of Murphy who
began working for the company as young men and continued there for some 25
to 30 years or more, until retirement.  Each of the men were exposed to loud
noise in their various occupations with Murphy.  They were not provided
hearing protection.  An expert in neuro-otology opined that each of the men
suffered hearing loss for which employment with Murphy was the most
significant factor.

After a bench trial, the trial court found in favor of Becker and all but
one of the other plaintiffs.  The court rejected Murphy's argument that the
men's claims were precluded because they knew about their noise exposure and
injury more than a year before filing suit.  The court reasoned that hearing
loss is a gradual and insidious occupational disease with a long latency
period because it stems from exposure to loud noise in the workplace over
many years.  Given that the men were not routinely afforded hearing
protection or hearing tests, the court applied the doctrine of contra non
valentem, thereby refusing to allow Murphy to "close the courthouse door" on
the theory that the men knew or should have known the cause of their hearing
loss was exposure to occupational noise during their work lifetime.

The court likewise rejected Murphy's asserted defenses on the issue of noise
exposure, in which the company:  sought to avoid the results of its own
refinery noise surveys; claimed that the plaintiffs had to establish a
requisite "dose" noise level, and that noise below federally regulated
levels could not give rise to a cause of action in negligence; and asserted
that case authority held that noise exposures below a certain level were
"safe."  The court further concluded that the plaintiffs established
causation for their hearing loss against Murphy, and that their claims were
not precluded as compensable injuries under the Louisiana Workers'
Compensation Act (LWCA).

The court awarded each of the prevailing plaintiffs $50,000 in damages,
which was an amount stipulated by the plaintiffs for jurisdictional
purposes.

The Louisiana Court of Appeal affirmed.

The court disagreed with Murphy's first two claims on appeal, namely that
the trial court erred in excluding evidence of noise exposure at other
refineries and in finding that noise exposure at Murphy's facility was the
cause of the plaintiffs' hearing loss.  In essence, evidence of noise levels
that workers might encounter at completely different facilities was not
sufficiently similar to evidence of noise workers encountered at the Murphy
facility in light of all the variables involved in each unique workplace.
The evidence also amply supported causation where it included sound survey
evidence produced by Murphy (for the earliest periods at issue Murphy had
failed to take noise readings and retain records as mandated by OSHA),
workers often worked longer hours and in proximity to more pieces of loud
machinery than reflected on "dose projections" as part of Murphy's sound
surveys, and expert evidence related each plaintiff's condition to
well-understood mechanisms of permanent hearing loss.  Likewise, Murphy
failed to comply with OSHA regulations of the Hearing Conservation Amendment
of 1971 and failed to implement a hearing protection program for its workers
for many years.

Overall, the Court of Appeal observed, the trial court's credibility
determinations with regard to expert witnesses or factual findings with
regard to causation were not manifestly erroneous or clearly wrong.

Murphy also argued on appeal that claims alleging damaging noise exposure
before July 1, 1983, were barred, as occupational hearing loss before that
time was compensable under the LWCA, regardless of the cause of injury.  To
the contrary, the court said, Louisiana courts have acknowledged that
gradual hearing loss is not a compensable injury under the LWCA (as
generally opposed to hearing loss caused by an isolated event that qualifies
as an "accident").  Murphy's case authority in support of its position was
inapposite, and it offered no case where an employee was granted workers'
compensation benefits for gradual hearing loss due to occupational exposure,
nor any which held that gradual hearing loss is a compensable "accident"
under the LWCA.

The court declared that gradual hearing loss resulting from occupational
noise exposure over a period of many years simply cannot meet the definition
of an "accident" under any version of the LWCA.

Finally, the court rejected Murphy's contention that three of the
plaintiffs' claims had prescribed and that the trial court erred in applying
the doctrine of contra non valentem.  Among other things, the court observed
that case authority with regard to occupational exposure to asbestos was
instructive.  Like asbestos exposure, it is incredibly difficult,
essentially a "herculean task," to determine precisely when a cause of
action accrues with respect to occupational noise exposure.

Absent any reversible error on the trial court's part, the Court of Appeal
affirmed the judgment in favor of the prevailing plaintiffs on their claims
for hearing loss due to occupational hearing exposure.

Judge Tobias concurred in part and dissented in part, writing that the
affirmation of the award to one of the prevailing plaintiffs was error
because, under the particular facts of his claim, the claim was prescribed.