The Commission in a 2-1 decision reversed an award of permanent and total disability based on a statute of limitations defense asserted by the second injury fund. Guinn v Solo Cup, DOLIR 8-21-2018.
Claimant is a 67 year old employed 19 years at Solo Cup who reported exposure to loud noise when he had to periodically remove hearing protection at the employer's facility. He was diagnosed with tinnitus and hearing loss in 2006. The employer settled the claim from 2013 and the claimant proceeded with a claim of PTD benefits against the Second Injury Fund filed in 2014 based on the hearing loss and prior medical impairment from Parkinson's.
The SIF disputed liability and asserted claimant filed a claim too late when the claim was filed more than a year after the condition was reasonably discoverable. The ALJ found the medical condition was diagnosed in 2006 but not reasonably discoverable until claimant's hired expert made the connection on May 22, 2013 so a claim filed on May 7, 2013 was timely as it was filed within one year.
The Commission found the date the claim was filed, and not the date the exam occurred, controlled when the condition was reasonably discoverable. As the claim was filed against the employer in January 2013, then the filing of the claim more than a year later against the Fund in May 2014 was untimely.
The Commission noted: "We need not consider or determine herein to use a date of disability plus 2 years or an independent tolling mechanism in 287.063.3 of "reasonably discoverable and apparent."
A dissent would have applied the 2 year statute in 287.430 when the condition was reasonably discoverable, and not from the original date of injury.
ALJ Wilson
Atty: Hosmer, Burks
