State Workers' Compensation Act Did Not Preclude Occupational Hearing Loss Claims
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.
The plaintiffs at trial were long-term employees of Murphy who began working for the company as young men and continued there until retirement. Each was exposed to loud noise in his job with Murphy. 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. Evidence of noise that workers might encounter at different facilities was not sufficiently similar to evidence of noise workers encountered at the Murphy facility. 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.
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