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Woodgrain Millwork/Windsor Wood Windows v. Millender

The employee's premature claim for occupational hearing loss ripened at the expiration of the 6-month statutory waiting period.

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This case involves issues of first impression in a workers’ compensation claim for occupational hearing loss. Following our grant of their application for discretionary appeal, Woodgrain Millwork/Windsor Wood Windows and Liberty Mutual Insurance Company collectively, the “Employer” appeal the order of the superior court affirming an award by the State Board of Workers’ Compensation “Board” to Donzi Millender. The Employer contends that, because Millender’s claim was prematurely filed, the Administrative Law Judge “ALJ” erred in denying the Employer’s motion to dismiss. The Employer also claims the ALJ misapplied the law and the evidence. For reasons which follow, we find that the superior court properly affirmed the Board award adopting the ALJ’s findings and we affirm.

Viewed in the light most favorable to the findings of the ALJ, the record shows that Millender worked for the Employer from mid-1996 through June of 1997. He drove a forklift. The mill was a noisy workplace, and the employees were required to wear hearing protection for their ears. Although hearing protection was available, Millender did not protect his right ear, because otherwise he could not hear the forklift-mounted radio which relayed delivery instructions. The Employer at the least condoned, and perhaps initiated, Millender’s practice of leaving his right ear unprotected while operating the forklift.

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