Arlene Ernstes v. Printpack, Inc.

IN THE SUPREME COURT OF TENNESSEE

SPECIAL WORKERS' COMPENSATION APPEALS PANEL

AT JACKSON FILED

Assigned on Briefs October 24, 2023

JAN 0 2 2024

ARLENE ERNSTES v. PRINTPACK, INC. Clerk of

Rec'd By

Appeal from the Workers' Compensation Appeals Board

No. 2020-07-0617 Timothy W. Conner, Judge

No. W2023-00863-SC-R3-WC — Mailed November 30, 2023

Employee sought worker's compensation benefits based on hearing loss allegedly caused

by continuous noise exposure during her employment with Employer. Employer denied

the claim, asserting Employee failed to give timely notice of injury. After a compensation

hearing, the trial court rejected Employer's notice defense and awarded benefits to

Employee. The Workers' Compensation Appeals Board reversed the trial court's finding

that Ernployee gave timely notice; vacated the order awarding benefits; and remanded the

case for a deterrnination of whether Employee had a reasonable excuse for failing to give

timely notice or whether Ernployer was prejudiced by the failure. On remand, the trial court

again awarded benefits, concluding Employee did not offer a reasonable excuse but

Employer failed to establish prejudice. In a second appeal, the Appeals Board construed

the notice statute and concluded the clairn should have been denied and disrnissed. In this

appeal, Employee argues the Appeals Board erred in its conclusion that Employee failed

to satisfy the statutory notice requirement. The appeal has been referred to the Special

Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and

conclusions of law pursuant to Tennessee Suprerne Court Rule 51. We affirm.

Tenn. Code Ann. § 50-6-225(a) (2014) Appeal as of Right;

Decision of the Workers' Compensation Appeals Board Affirmed

ROY B. MORGAN, JR., SR. J., delivered the opinion of the court, in which DWIGHT E.

TARWATER, J. and DON R. ASH, SR. J., joined.

Jeffrey P. Boyd, Jackson, Tennessee, for the appellant, Arlene Ernstes

Gregory H. Fuller & Adarn C. Brock-Dagnan, Knoxville, Tennessee, for the appellee,

Printpack, Inc.

OPINION

Factual and Procedural Background

Arlene Ernstes ("Employee") was employed by Printpack, Inc. ("Employer" and

"Printpack") for thirty-three years. Over the course of her employment, Employee worked

in several different positions, spending a majority of her time on the plant floor where she

was exposed to loud machinery. Employer provided annual hearing screens; however,

Employee was unaware of any hearing loss when she retired in 2016.

In the years after her retirernent, Employee noticed she was having difficulty hearing

but she attributed the hearing loss to her age. In 2019, Ernployee went to Dr. Karl

Studtmann, an otolaryngologist, with complaints of ear pain, dizziness, and hearing loss.

An audiological exam conducted during the visit revealed significant hearing loss.

Although Dr. Studtrnann and Employee discussed her hearing loss, they did not address

the etiology of her hearing loss at that time.

In September 2020, Employee accompanied her husband to a meeting with an

attorney regarding his employment-related hearing loss case. During the meeting,

Employee talked with the attorney about her past employment with Employer and her own

hearing loss. Following this meeting, Employee, through counsel, gave notice of her injury

to Employer. On November 17, 2020, Ernployee filed a Petition for Benefit Determination

with the Tennessee Bureau of Workers' Cornpensation ("Bureau") based on bilateral

hearing loss caused by noise exposure at Printpack.

In June 2021, Employee returned to Dr. Studtmann for an evaluation at her counsel's

request. Dr. Studtmann diagnosed Employee with sensorineural hearing loss likely

attributable to her employrnent with Employer. He assigned an impairment rating of ten

percent (10%) to the body as a whole. When mediation failed to resolve the issues of

cornpensability and permanent disability benefits, the Bureau issued the Dispute

Certification Notice on May 5, 2021, and the "final" Dispute Certification Notice on April

21, 2022.

Compensation Hearing

A cornpensation hearing was conducted on August 4, 2022 in the Court of Workers'

Compensation Clairns. The court heard testimony from Employee and reviewed the

deposition of Dr. Studtmann.

Employee, eighty-three years old at the time of the compensation hearing, testified

about her employment history with Ernployer and the noisy work environment. Employee

said she always wore hearing protection, but at times the noise hurt her ears even with the

protection. Employee recalled that Employer provided annual hearing screens via a mobile

unit. After each screening, a slip of paper indicating pass or fail would be placed in

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Employee's mailbox. Employee said she did not take the results seriously. Employer never

discussed the results of the hearing screens with Ernployee and never suggested Employee

had a hearing problem or should see a doctor for any reason.

Employee explained that after leaving her employment she gradually began to

notice her hearing loss. She initially believed her hearing difficulties were due to getting

older. Employee learned she had significant hearing loss during her 2019 visit to Dr.

Studtmann. She said the first time she connected the hearing loss to her employrnent was

during a visit with her husband's attorney regarding his work-related hearing loss case.

During cross-examination, Employee recalled giving her deposition. Employee

testified during the deposition that she was informed of her severe hearing loss after her

2019 exarnination. She said she did not inquire into the cause of her hearing loss because

she knew then her loss was caused by the "loud noise."

Before determining whether Employee had established a compensable claim, the

judge considered Employer's notice and statute of limitations defenses. As to notice, the

judge recognized that hearing loss is a gradually occurring or cumulative injury, and

therefore, Employee was required to provide notice to Employer within thirty days after

she knew or reasonably should have known she suffered a work-related injury that resulted

in permanent physical irnpairment ("the discovery rule"). The judge concluded that

Employee did not causally relate her hearing loss to her employment until she met with her

attorney and notified Employer in September 2020. As to the statute of limitations, the

judge explained that under the discovery rule, the statute of limitations in a gradually

occurring injury case is suspended until by reasonable care and diligence it is discoverable

that a compensable injury has been sustained. In this instance, the judge concluded

Employee did not know her hearing loss was work-related until she saw Dr. Studtmann in

2019, and therefore, the petition was not time-barred.

The trial court concluded Employee had established that her hearing loss arose

primarily out of and in the course and scope of her employment at Employer and awarded

benefits including permanent partial disability and lifetime future medicals.

First Appeal

On appeal, Employer's issue was "whether the trial court erred in finding that

Employee provided Employer timely notice of a gradually occurring injury." Ernstes v.

Printpack, Inc., No. 2020-07-0617, 2022 WL 17825267, at *4 (Tenn. Workers' Comp.

App. Bd. Dec. 15, 2022). The Appeals Board found the following colloquy (related to the

2019 visit to Dr. Studtmann) significant on the issue of timely notice under the discovery

rule:

Q: Okay. Do you remember doing any hearing screening?

A: Yeah, I did the screening and then he [Dr. Studtmann] checked my

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ears.

Q: And what was the conclusion - - or what were the findings that wcre

provided to you at that particular - -

A: That I couldn't hear.

Q: Okay. So, they informed you you had a hearing loss?

A: Yes.

Q: Was it pretty severe?

A: Yes.

Q: Okay. Did you ask them why?

A: No.

Q: And why is that?

A: I knew why. All the loud noises and everything with . . . .

Q: Okay. So, in 2019, you knew why you had hearing loss.

A: I figured that was why.

Q: So, you - - okay. So, you did not think it was because of your age?

A: Yeah, I figured it was my age until I - - until he - - when he did the

test and he was telling what it was, I figured it was my age. And then, I

figured, no, it was all the noise.

Id. at *5 (emphasis in original).

Based on this testimony, the Appeals Board deterrnined that the evidence

preponderated against the trial judge's findings. Accordingly, the Appeals Board

concluded Employee failed to give timely notice of her injury. Id. at *5-6. However, the

Appeals Board turned its focus to the notice provisions of the workers' compensation

statute, which provide:

No compensation shall be payable under this chapter, unless written notice

is given to the employer within thirty (30) days after the occurrence of the

accident, unless reasonable excuse for failure to give the notice is made to

the satisfaction of the tribunal to which the claim for compensation may be

presented.

Id. at *5 (quoting Tenn. Code Ann. § 50-6-201(a)(1)) (emphasis added).

The Board explained that because the trial court concluded the notice was timely, it

did not reach the issue of whether Employee had a reasonable excuse for failing to give

timely notice. Further, citing a second statutory notice provision related to defective or

inaccurate notice, the Appeals Board concluded the trial court must also consider whether

Employer was prejudiced by the late notice. Thus, the Board reversed the trial court,

vacated its judgment, and remanded for the trial court to consider whether Employee had

a reasonable excuse for her failure to provide timely notice and, if no reasonable excuse is

given, whether and to what extent Employ,er was prejudiced by the failure to give proper

notice. Id. at *6.

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Compensation Hearing on Remand

On rernand, the trial court concluded that Employee did not offer a reasonable

excuse for her failure to give notice in 2019; however, the judge also concluded that

Ernployer failed to show prejudice. Accordingly, the judge reinstated the benefits award.

Second Appeal

On appeal following rernand, Employer's issue was stated in the notice of appeal as

"[w]hile it is true that the Appeals Board remanded this case to allow the trial court to

determine whether Employee provided a reasonable excuse for her providing late notice,

it neglected to consider whether Ernployee's claim is barred by the statute of limitations;

therefore, the issues on appeal are whether the court erred in determining that Employee

provided a reasonable [sic] and whether Employee's claim is barred by the statute of

limitations." Initially, the Appeals Board determined that the statute of limitations issue

was waived for failure to raise the issue in the first appeal and was nevertheless without

rnerit. Ernstes v. Printpack, Inc., No. 2020-07-0617, 2023 WL 3931450, at *3-4 (Tenn.

Workers' Comp. App. Bd. June 6, 2023). Next, the Appeals Board construed the notice

provisions of the workers' cornpensation statute and clarified that in cases where lack of

timely written notice is alleged the employee has the burden of proving that: (1) tirnely

written notice was provided; (2) the employer had actual knowledge of the accident or

injury; or (3) the employee has a reasonable excuse for the failure to provide timely written

notice. Id. at *13. Applying this clarified standard to the instant case, the Appeals Board

concluded that Employee failed to show any reasonable excuse for her failure to give

timely written notice of her alleged work-related hearing loss after her medical

appointment with Dr. Studtmann in Decernber 2019. Because (1) no timely written notice

was provided, (2) no actual knowledge of Employer was shown, and (3) no reasonable

excuse was provided, the claim should have been denied. Accordingly, the Appeals Board

reversed the trial court and dismissed the petition. Id. at *14. Employee has appealed.

Analysis

Standard of Review

Under the applicable standard of review, we review the trial court's findings of fact

de novo upon the record accompanied by a presumption of correctness, unless the

preponderance of the evidence is otherwise. Tenn. Code Ann. § 50-6-225(2). However,

questions of law are reviewed de novo without a presumption of correctness. Smith v. U.S.

Pipe & Foundry Co., 14 S.W.3d 739, 742 (Tenn. 2000).

This appeal focuses on whether the Appeals Board erred in its conclusion that

Employee failed to satisfy the statutory notice requirement.' As explained, this appeal

Employee initially argues that the Appeals Board erred in addressing the notice issue in the second

appeal because the issue was not included in the notice of appeal. The notice of appeal identified the

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follows two appeals in the Appeals Board related to the notice requirement. Before we

examine the propriety of those decisions, we revisit the statutory notice requirement in

workers' cornpensation cases.

Tennessee Code Annotated section 50-6-201 provides that:

(a)(1) Every injured employee or the injured employee's representative shall,

immediately upon the occurrence of an injury, or as soon thereafter as is

reasonable and practicable, give or cause to be given to the employer who

has no actual notice, written notice of the injury, and the employee shall not

be entitled to physician's fees or to any compensation that rnay have accrued

under this chapter, from the date of the accident to the giving of notice, unless

it can be shown that the ernployer had actual knowledge of the accident. No

compensation shall be payable under this chapter, unless the written notice

is given to the employer within fifteen (15) days after the occurrence of the

accident, unless reasonable excuse for failure to give the notice is made to

the satisfaction of the tribunal to which the claim for compensation may be

presented.

(2) The notice of the occurrence of an accident by the employee required to

be given to the ernployer shall state in plain and simple language the name

and address of the employee and the time, place, nature, and cause of the

accident resulting in injury or death. The notice shall be signed by the

claimant or by some person authorized to sign on the claimant's behalf, or

by any one (1) or more of the claimant's dependents if the accident resulted

in death to the employee.

(3) No defect or inaccuracy in the notice shall be a bar to compensation,

unless the employer can show, to the satisfaction of the workers'

compensation judge before which the matter is pending, that the employer

was prejudiced by the failure to give the proper notice, and then only to the

extent of the prejudice.

issues as "whether the court erred in determining that Employee provided a reasonable [sic] and

whether Employee's claim is barred by the statute of limitations[.]" The Appeals Board concluded that

the statute of limitations issue was waived due to Employer's failure to raise the issue in the first appeal

but that Employer's brief "fairly raised" the notice issue. We agree. Without question, the second notice

of appeal rather clumsily referenced reasonable excuse; however, the appellate brief did challenge the

trial court's interpretation of the notice requirement. Although Employer's decision to focus on the

statute of limitations issue was fraught with peril, the inartful drafting in the notice of appeal does not

entitle Employee to relief under Hodge v. Craig, 382 S.W.3d 325 (Tenn. 2012) or under any of the legal

theories advanced in her brief. Accordingly, the Appeals Board did not err in addressing the notice issue.

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Tenn. Code Ann. § 50-6-201 (2022).2 In cases involving gradual or cumulative injuries,

the injured worker is required to provide notice of injury to employer within fifteen days

after the employee:

(1) Knows or reasonably should know that the employee has suffered a work-

related injury that has resulted in permanent physical impairrnent; or (2) Is

rendered unable to continue to perform the employee's normal work

activities as a result of the work-related injury and the employee knows or

reasonable should know that the injury was caused by work-related activities.

Tenn. Code Ann. § 50-6-201(b) (commonly known as the "discovery rule).

In the first appeal, the Appeals Board concluded Employee had not provided timely

notice but it remanded the case for the trial court to deterrnine whether, pursuant to

subdivision (a)(1), Employee had offered a reasonable excuse for her failure to give timely

notice, and whether, pursuant to subdivision (a)(3), Employer had suffered any prejudice

due to the lack of notice. Ernstes, 2022 WL 17825267, at *6. The trial court determined

that Employee offered no reasonable excuse but that Employer had not shown prejudice.

The trial court reinstated its original award of benefits, and Employer again appealed the

trial court's rejection of the notice defense.

In the second appeal, the Appeals Board realized the confusion surrounding these

notice provisions, particularly the contours of reasonable excuse and prejudice contained

in subdivisions (a)(1) and (a)(3) respectively. The Appeals Board conducted an exhaustive

exarnination of the history of the notice requirement and construed the language of the

notice statute in light of this history. Important here, the Appeals Board drew a distinction

between untirnely notice and defective notice and the burden accompanying each notice

deficiency. Ernstes, 2023 WL 3931450, at *5-12.

The Board concluded that in cases involving the lack of timely written notice, the

employee has the burden of proving that: (1) timely written notice was provided; (2) the

employer had actual knowledge of the accident or injury; or (3) the employee has a

reasonable excuse for the failure to provide timely written notice. Id. at *13. Conversely,

when an employer affirmatively asserts a defect or inaccuracy in the written notice, the

burden shifts to the employer to prove prejudice. Id. 3

2 The General Assembly amended these provisions in 2016 to reduce the notice requirement from thirty

(30) days to the present fifteen (15) days in all cases except for occupational disease cases.

3 Employee does not challenge the Appeals Board's interpretation of the notice

statute, including its

delineation between untimely notice and defective notice. It seems our own de novo review of the

notice statute would lead to substantially the same interpretation. Nonetheless, we observe in the

Appeals Board's interpretation of the notice statute the seemingly unsettled role, if any, prejudice

should play in assessing untime/y written notice. Because the issue is not squarely presented in this

appeal, we leave resolution of that issue to another day.

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Against this backdrop, we consider whether the Appeals Board erroneously

concluded Employee failed to satisfy the statutory notice requirement. Because the parties

do not dispute that Employee failed to offer a reasonable excuse, we turn our focus to

whether Employer had actual knowledge of Employee's injury or whether Employee, in

fact, gave timely written notice of her injury.

Employee argues Employer had actual notice of Employee's gradual hearing loss.

Ernployee testified that she worked in a noisy environment and was required to wear

hearing protection. She recalled that Employer provided annual hearing screens via a

mobile unit that came to the plant. The employees were provided a "pass or fail" notice

after each screening; however, Employee did not take the results seriously. No proof was

presented to suggest these screening results were known to Employer or that Employer had

ever referred Employee or any ernployee to a medical professional. As to this issue, the

Appeals Board noted as follows:

Ernployee argues that Employer should be charged with actual knowledge of

her work-related hearing loss because it required that she wear hearing

protection and undergo regular hearing tests. Without any evidence in the

record to suggest that Employer had retained a medical professional with

appropriate expertise to conduct the tests and relate the results of those tests

to Ernployer, we decline to impute knowledge to an employer that an

employee's hearing loss was work-related based rnerely upon the fact that it

required employees to wear heiring protection and to undergo hearing tests.

Ernstes, 2022 WL 17825267, at *5 n. 4 (emphasis in original). Upon our review of the

record, we are unable to conclude that Employer had actual notice of Employee's hearing

loss.

In the end, this case turns on whether Employee provided timely notice of her injury.

Under the discovery rule, Employee was required to give notice of her gradually occurring

injury within fifteen4 days of when she knew or reasonably should have known that she

suffered a work-related injury that resulted in permanent physical impairment. Employee

testified that she first connected her hearing loss to her employrnent with Ernployer on

September 28, 2020, when she attended a meeting with her husband and his counsel about

her husband's work-related hearing loss. During this meeting, Ernployee and counsel

discussed Employee's own hearing loss and the likelihood the hearing loss was attributable

to her ernployment with Employer. During the meeting, Employee retained the same

counsel to pursue her hearing loss claim, and counsel sent notice letters to Employer on

that date. The trial court accredited Employee's testimony and rejected Employer's notice

defense.

4Employee's brief cites a fifteen-day notice requirement while Employer's brief cites a thirty-day notice

requirement.

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In the first appeal, the Appeals Board reviewed the testimony under the applicable

standard of review and concluded the evidence preponderated against the trial court's

findings. The Appeals Board pointed to Employee's cross-examination testimony,

concluding Employee knew or should have known her hearing loss was work related at the

time of her appointment with Dr. Studtmann in 2019. In the second appeal, the Appeals

Board did not revisit this determination. Upon our review of the testimony, we agree that

the evidence preponderates against the trial court's findings. In her candid cross-

examination (which referenced her earlier deposition), Employee testified that although

she originally believed her hearing loss was attributable to her age, she knew the hearing

loss was caused by "all the loud noise." Thus, Employee did not give written notice within

fifteen or thirty days of when she knew her hearing loss was causally related to her

ernployment. Accordingly, we are constrained to conclude that Employee failed to give

timely written notice of her gradually occurring injury.

Because Employee failed to give timely written notice, failed to prove any

reasonable excuse for her failure, and failed to prove Employer had actual knowledge of

her injury, the Appeals Board did not err in concluding Employee failed to provide the

statutorily required notice of her gradually occurring injury.

Conclusion

For the foregoing reasons, we affirm the judgment of the Appeals Board. Costs are

taxed to Arlene Ernstes, or her surety, for which execution may issue if necessary.

ROY B. MORGAN, JR., SENIOR JUDGE

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IN THE SUPREME COURT OF TENNESSEE

SPECIAL WORKERS' COMPENSATION APPEALS PANEL

AT JACKSON

ARLENE ERNSTES v. PRINTPACK, INC.

Appeal from the Workers' Compensation Appeals Board

No. 2020-07-0617

FILED

JAN 02 2024

No. W2023-00863-SC-R3-WC

JUDGMENT ORDER

This case is before the Court upon the entire record, including the order of referral

to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum

Opinion setting forth its findings of fact and conclusions of law, which are incorporated

herein by reference.

Whereupon, it appears to the Court that the Memorandum Opinion of the Panel

should be accepted and approved; and

It is, therefore, ordered that the Panel's findings of fact and conclusions of law are

adopted and affirmed, and the decision of the Panel is made the judgment of the Court.

Costs are assessed to Arlene Ernstes, or her surety, for which execution may issue

if necessary.

It is so ORDERED.

PER CURIAM