Manalapan Mining Co., Inc. v. Lunsford , 204 S.W.3d 601 ( 2006 )

SCOTT, Justice,

dissenting.

In Alcan Foil Products v. Huff, 2 S.W.3d 96 (Ky.1999), and subsequent cases, this court has viewed a hearing loss due to hazardous noise exposure to be a gradual injury for which a rule of discovery triggers the notice and limitations requirements. KRS 342.185 contains a two-year statute of limitations for an injury but makes no reference whatsoever to a two-year period of repose. Nonetheless, the majority has determined that Kyle Luns-ford’s hearing loss claim must be dismissed because it was filed more than two years after his last exposure to hazardous noise. I dissent.

Lunsford received 37 years’ exposure to hazardous noise while working in the mining industry. His last exposure occurred on February 18, 2001. He testified that Dr. Guindi was the first physician to test his hearing. On or about January 5, 2004, Dr. Guindi informed Lunsford that audiological tests revealed a noise-induced hearing loss that was due to his work and assigned a 26% AMA impairment. This is the first time he had received information that his hearing loss was work related. Lunsford’s attorney then informed his employer on January 14, 2004, and filed an application for benefits on January 15, 2004. The employer asserted that the claim was barred by the statute of limitations found in KRS 342.185 because Luns-ford filed it more than two years after his exposure ceased.

KRS 342.7305(4) considers a hearing loss due to noise exposure to be an “injury.” See Caldwell Tanks v. Roark, 104 S.W.3d 753 (Ky.2003). KRS 342.185(1) contains the statute of limitations for injuries. It states as follows:

(1) Except as provided in subsection (2) of this section, no proceeding under this chapter for compensation for an injury or death shall be maintained unless a notice of the accident shall have been given to the employer as soon as practicable after the happening thereof and unless an application for adjustment of claim for compensation with respect to the injury shall have been made with the department within two (2) years after the date of the accident, or in case of death, within two (2) years after the death, whether or not a claim has been made by the employee himself for compensation. The notice and the claim may be given or made by any person claiming to be entitled to compensation or by someone in his behalf. If payments of income benefits have been made, the filing of an application for adjustment of claim with the department within the period shall not be required, but shall become requisite within two (2) years following the suspension of payments or within two (2) years of the date of the accident, whichever is later.

In Alcan Foil Products v. Huff, supra, this court reaffirmed the principle of Randall v. Pendland, 770 S.W.2d 687 (Ky. App.1988), that a rule of discovery triggers the notice and limitations requirements in gradual injury claims. Moreover, in Hill v. Sextet Mining Corp., 65 S.W.3d 503 (Ky.2001); Brown-Forman Corp. v. Upchurch, 127 S.W.3d 615 (Ky.2004); and American Printing House for the Blind v. Brown, 142 S.W.3d 145 (Ky.2004), it reaffirmed that principle and also determined that a worker is not required to self-diagnose the cause of a disabling condition. When determining in Coslow v. General Electric Co., 877 S.W.2d 611, 614-15 (Ky. 1994), that the two-year period found in KRS 342.185 operates as a statute of repose as well as a statute of limitations, the court explicitly limited its holding to injuries that resulted from a single traumatic event.

Although KRS 342.316(4)(a) contains a period of repose for occupational diseases, KRS 342.185 clearly does not. Gradual injuries result from multiple traumatic incidents; therefore Coslow v. General Electric Co., supra, is inapplicable. For this court to read a period of repose into KRS 342.185 with regard to gradual injuries is unwarranted and contrary to the rule of discovery. Therefore, the Court of Appeals’ decision should be affirmed.

LAMBERT, C.J., and GRAVES, J., join this dissent.