McCuiston v. Addressograph-Multigraph Corp. ( 1982 )

ARNOLD, Judge.

Plaintiff showed a “loss of hearing” by his testimony, the testimony of Dr. Kenan and tests conducted on him. The question is whether plaintiff proved that his hearing loss was due to “harmful noise in employment.”

This case turns on an interpretation of G.S. 97-53(28). That subsection lists one of the compensable occupational diseases under the Workers’ Compensation Act as “[l]oss of hearing caused by harmful noise in the employment.” Research by the Court and both parties has revealed no reported court decisions on this subsection, which was added in 1971. See, 1971 N.C. Sess. Laws Ch. 1108.

In interpreting this statute, we are guided by our Supreme Court that the Act “should be liberally construed to the end that benefits may not be denied on narrow or technical grounds.” Hewett v. Garrett, 274 N.C. 356, 360, 163 S.E. 2d 372, 375 (1968). But at the same time, we “may not legislate under the guise of construing a statute liberally.” Barnhardt v. Cab Co., 266 N.C. 419, 427, 146 S.E. 2d 479, 485 (1965). We will construe with these admonitions in mind.

G.S. 97-53(28) states in part:

(28) Loss of hearing caused by harmful noise in the employment. The following rules shall be applicable in determining eligibility for compensation and the period during which compensation shall be payable:

a. The term “harmful noise” means sound in employment capable of producing occupational loss of hearing as hereinafter defined. Sound of an intensity of less than 90 decibels, A scale, shall be deemed incapable of producing occupational loss of hearing as defined in this section.

b. “Occupational loss of hearing” shall mean a permanent sensorineural loss of hearing in both ears caused by prolonged exposure to harmful noise in employment.

Part a of subsection (28) requires an employee to show that the noise to which he was exposed could produce occupational loss of hearing. It then says that noise of less than 90 decibels cannot produce an occupational loss of hearing. Part b then defines occupational loss of hearing as a permanent sensorineural loss of hearing in both ears. Plaintiffs evidence showed the permanent loss in both ears.

However, defendant contends, and the Industrial Commission agreed, that under the statute 90 decibels, A scale, is a noise level that plaintiff has the burden of showing in order to recover. We are constrained to agree and thus preclude plaintiffs argument that the 90 decibels measurement is an affirmative defense that defendant must prove.

A careful reading of the statute, and the placement of the 90 decibels requirement in the subpart that defines the elements of recovery, lead to the conclusion that a plaintiff-employee must show that he was exposed to that level of noise before he can recover. If 90 decibels were an affirmative defense the General Assembly clearly could have said that as it did in G.S. 97-12, where the party claiming the defense of employee intoxication on the job has the burden of showing it. It is the task of the General Assembly to define the elements of recovery under the Workers’ Compensation Act, and this Court cannot by judicial declarations amend the Act.

Affirmed.

Judges Hedrick and Wells concur.