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Kapa v. City of Wilmington, IAB No. 1406213 (July 18, 2014).

Firefighter’s hearing loss claim barred by statute of limitations and not causally related to his employment.

The claimant, Thomas Kapa, filed a Petition to Determine Compensation due on October 3, 2013, alleging that he developed bilateral hearing loss as a result of the cumulative detrimental effect of the noises he was exposed to while working as a firefighter for the City of Wilmington. The asserted occupational noise included sirens, power tools and alarm systems. The manifestation date put forward by the claimant’s petition was October 4, 2011, although he later propounded a manifestation date of March 19, 2012 at the hearing. The employer maintained that the petition was barred by the statute of limitations and alternatively disputed causation.

In addressing the statute of limitations argument, the Board recited the “reasonable person” standard, which provides that “[t]he statute of limitations for filing a workers’ compensation claim does not begin to run until the claimant, as a reasonable person, should recognize the nature, seriousness and probable compensable nature of the injury or disease.” Geroski v. Playtex Family Products, 676 A.2d 903 (Del. 1996) (ORDER); Anderson v. State, 1992 WL 115948 (Del. 1992) (ORDER). The claimant had worked for Employer for 27 years. He testified at the hearing that he participates in physical examinations required by his employer every year and admitted that he had known about his hearing loss and believed that there was a causal nexus to his employment as early as 1999, when his doctor, Dr. Ramzy, discussed exposure to noise as a potential cause. The claimant further admitted that he knew his condition was permanent in 1999.

The Board concluded that a reasonable person would have realized the nature, compensability and seriousness of the injury at least by 1999, given the annual testing, permanency and progression of the hearing loss. The Board observed that the reasonable person test does not require that “a claimant must be told by his or her doctor that the problem is work-related.” Willis v. American Original, 1991 WL 215888 at *2 (Del. Super. Sept. 27, 1991). The claim was barred by the statute of limitations.

As to causation, the Board applied the “substantial cause” standard used for cumulative detrimental effect claims. The Board found the testimony of employer’s experts to be credible and persuasive. Roger Boyell, a licensed professional engineer, performed environmental audiological testing at the claimant’s work site and opined that, because the noise disturbances there were short-lived, they did not contribute to Claimant’s hearing loss, based on an occupational noise exposure standards established by OSHA. The employer’s medical expert, Dr. William Medford, initially concluded that the hearing loss was more likely than not work-related, but adjusted his opinion after consideration of the forensic data. The Board concluded that work noise was not a substantial cause of Claimant’s hearing loss and the petition was denied.

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