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How do you solve a problem like Maria? Not only is that one of my favorite songs from The Sound of Music, but that also has to be resounding through the claimant bar in the wake of today’s case, Thomas Kapa v. City of Wilmington, IAB#1406213 (7/18/14). Major props to defense lawyer Maria Paris Newill for a stellar outcome on two fronts - both the statute of limitations and the substantive claim for hearing loss based on noise exposure in the course and scope of employment as a firefighter. The Board first denied the claim on statute of limitations and then went on to comment that even if the Petition were not time-barred, causation would have been lacking.
Of note on the issue of the SOL:
· Hearing loss is not a hidden or latent condition such as osteoporosis or a rotator cuff tear.
· Claimant admitted he believed in a nexus between hearing loss and occupational noise as early as 1999.
· There was no denial that the claimant and Dr. Ramzy discussed exposure to noise in the context of hearing loss early on, as reflected in the medical records.
· The “reasonable person test” does not require that “a claimant must be told by his or her doctor that the problem is work-related.”
Of note on the causation issue:
· This is a cumulative detrimental effect claim, and as such, the “but for” standard is inapplicable (it’s substantial cause”, folks!).
· The defense called to testify Roger Boyell, Electronics Analyst, a licensed professional engineer and board certified forensic engineer, who opined that because the disturbances are short-lived, they do not contribute to hearing loss, based on an occupational noise exposure established by OSHA standards.
· Dr. Medford, the defense medical expert, initially concluded that the hearing loss was more likely than not occupational in nature and then adjusted his opinion after consideration of forensic data.
I called Maria to congratulate her on the outcome and here is what she shared:
“While I do think that is the correct outcome based on the facts, I was not at all confident going in that I could overcome a “firefighter” saying it was work related, his doctor saying it was work related and nothing great outside of work to point to as the cause. All too often, it feels like it is assumed work related, until defense proves to the contrary. For the defense, I am pleased to see that is not the case as demonstrated by this decision.
I would have liked the IAB to address the forfeiture arguments I also raised because this claimant was told by multiple doctors since 1999 to wear ear protection at work, and for a variety of reasons he did not, even though protection was provided by the Employer. I won’t be greedy, however, and will take the win based on the SOL and causation arguments.”
So turning to things non-legal, I hope y’all are finding unique and exciting ways to close out those remaining weeks of summer. For my part, I continue to bake all sorts of Cassandra’s Confections, an example of which is pictured above- a humble and homespun little carrot cake. For a sample of my desserts, you are just gonna have to wait until the September 10 gathering of the Randy J. Holland Workers’ Comp Inn of Court where the Group led by yours truly and Nancy Chrissinger Cobb will be introducing a couple of signature cocktails……more on that to follow next week.
Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts
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