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Short-Term Employer May Be Charged with Entire Hearing Loss Claim in WV

Photo of Steven Wellman

Most employers would never imagine that they would be stuck with an entire occupational hearing loss claim for an employee who worked a mere four days. But that's exactly what happened in a recent workers' compensation appeal before the West Virginia Supreme Court of Appeals, Pioneer Pipe, Inc. v. Swain et al.

Stephen Swain worked as a heavy equipment operator in the construction industry for over 30 years. He was often exposed to industrial noise from equipment he operated and from nearby machinery. Swain worked for many different employers over the course of his working life. His last employer was Pioneer Pipe, for whom he worked a total of 40 hours in a position involving noise exposure.

Shortly after he stopped working, Swain was diagnosed with bilateral hearing loss attributable to noise exposure during his working career. The Office of Judges identified three employers that might be charged with his claim, including Pioneer.

West Virginia law gives the Insurance Commissioner the explicit authority to "allocate and divide" hazardous noise claims based on the employee's length of service with each employer. Nevertheless, the Insurance Commissioner adopted a policy refusing to allocate these claims, instead charging the last employer who exposed an employee to hazardous noise with responsibility for hearing loss claims.

The administrative law judge assigned to the case applied the Commissioner's policy and ruled Pioneer as the sole chargeable employer on the claim. The Board of Review affirmed, and Pioneer appealed.

The Court affirmed the decision, finding Pioneer to be the sole chargeable employer for Swain's occupational hearing loss claim. Justice Ketchum, writing for the majority, found that the language of the statute-"may allocate"-made allocation discretionary with the Commissioner.

Clearly, the Court's decision makes it very easy to determine the chargeable employer. Once you hire an employee and expose that employee to hazardous noise, you have "bought" the hearing loss claim. There is no minimum period of exposure necessary. Some employers and their carriers will get hit with claims based upon minimal employment and exposure, while others will dodge a significant bullet.

The Commissioner feels that most carriers will ultimately come out even. They will pick up some claims, and they will evade some claims. Although this is certainly true, when an employer is hit with a significant claim for a very short, insignificant exposure, it will not feel very fair or equitable.

West Virginia employers should note that the Commissioner's policy of non-allocation will also apply to other occupational diseases, not just hearing loss.

Despite the inherent unfairness of the Commission's policy when short-term employees are at issue, employers must resist any appearance that they screen out employees with disabilities, lest they be accused of discrimination.

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