Kansas Court Upholds Firefighter’s Hearing Loss Disability Claim

The Kansas Court of Appeals has upheld a workers’ comp claim brought by a firefighter alleging hearing loss. Patrick O’Neal was a firefighter with the Hutchinson Fire Department.

O’Neal filed a workers’ comp claim alleging permanent bilateral hearing loss and tinnitus following an incident that occurred on February 23, 2009, inside a fire house when an air horn was sounded as he walked past the front of a truck. The claim was originally filed for a “single accident.”

The city contested the claim by arguing that a single event did not cause O’Neal’s disability. The city’s medical expert, Dr. Robert Epp, concluded it was more likely that O’Neal’s hearing loss was the result of repetitive exposures. That prompted O’Neal’s attorneys to file a new claim for repetitive trauma hearing loss.

A workers’ comp administrative law judge ruled in O’Neal’s favor finding him 2% disabled. The city appealed to the Kansas Workers Compensation Appeals Board who agreed with the city that there was insufficient proof the February 23, 2009 incident caused the hearing loss. However, the Board ruled in O’Neal’s favor on the repetitive trauma claim. That ruling prompted the city to appeal arguing that res judicata prohibited O’Neal from raising the repetitive trauma claim.

The Court of Appeals rejected the city’s res judicata argument. As explained by the court:

  • The City’s primary argument on appeal is that res judicata bars O’Neal’s repetitive trauma claim.
  • The City claims O’Neal’s repetitive trauma claim is for bilateral hearing loss and tinnitus, the same injuries alleged in his first workers compensation claim, and that the Board erred by overlooking the fact that O’Neal could have raised his repetitive trauma claim in his first claim.
  • Res judicata (also called claim preclusion) is “a common-law rule of equity grounded in both notions of justice and in sound public policy, each of which demands that a party not be vexed with litigation twice on the same cause.”
  • Res judicata requires four elements be satisfied: “(1) the same claim; (2) the same parties; (3) claims that were or could have been raised; and (4) a final judgment on the merits.”
  • If any element is not met, res judicata does not apply.
  • We think the City’s … argument that O’Neal’s repetitive trauma claim could have been brought in his single accident claim undermines its argument that both of O’Neal’s claims are the same. They are not.
  • His first workers compensation claim was based on a single accident—a fire truck horn sounding when O’Neal was walking in front of it.
  • The nucleus of that claim was based on one accident occurring on February 23, 2009. In contrast, O’Neal’s current claim is based on repetitive trauma—hearing loss caused by damage to his ears due to years of repeated exposure to damaging environments.
  • The Kansas Workers Compensation Act, K.S.A. 44-501 et seq. (the Act), separates accidents and repetitive trauma. An accident is “an undesigned, sudden and unexpected traumatic event.” K.S.A. 2019 Supp. 44-508(d). Repetitive trauma is when “an injury occurs as a result of repetitive use, cumulative traumas or microtraumas.” K.S.A. 2019 Supp. 44-508(e).
  • Though O’Neal does assert the same injury—bilateral hearing loss and tinnitus—in both claims, the claims are not the same. An accident and a repetitive trauma are different claims under the Act. In his first claim, O’Neal focused on a single point in time, one moment on one day of his job. In his second, O’Neal’s claim was based on his entire career working for the City.
  • The timeframe is greater and requires proof of more incidents. The key fact in his single accident claim was the difference in his hearing before and after February 23, 2009.
  • For his repetitive trauma claim, the Board needed to analyze all of O’Neal’s hearing tests for evidence that his hearing ability had decreased while working for the City.
  • O’Neal’s repetitive trauma claim is not the same claim as his single accident claim.
  • The record shows O’Neal filed his repetitive trauma claim while his single accident claim was still pending—a fact the City acknowledges.
  • O’Neal filed his repetitive trauma claim on July 11, 2016, over three months before the ALJ issued an award on his single accident claim on October 28, 2016, and almost eight months before the Board reversed that award on March 7, 2017.
  • The Board determined the date of injury was April 11, 2016, the date Dr. Bieri testified. Additionally, Dr. Epp examined O’Neal on May 10, 2016, although there is no evidence Dr. Epp informed O’Neal of his conclusions then.
  • Dr. Epp did testify in his June 20, 2016 deposition that O’Neal’s injuries were caused by repetitive trauma from his career working as a firefighter.
  • There is no evidence O’Neal knew before Dr. Bieri’s or Dr. Epp’s depositions that his bilateral hearing loss and tinnitus were caused by repetitive trauma rather than a single accident.
  • Thus, O’Neal could not have raised his repetitive trauma claim when he filed his single accident claim because he did not have any knowledge at that time that his injuries were caused by repetitive trauma from working as a firefighter.
  • Moreover, O’Neal’s contention that adding an additional repetitive trauma claim to his original single accident claim was impractical—given the evidence in his single accident claim had closed—makes sense.
  • This element of res judicata was not met.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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