Opinion
No. 296 C.D. 2012
09-07-2012
Ulysses Stallings, Petitioner v. Workers' Compensation Appeal Board (Philadelphia Gas Works), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Ulysses Stallings (Claimant) petitions for review of the order of the Workers' Compensation Appeal Board (Board) affirming the decision of the Workers' Compensation Judge (WCJ) that denied his claim petition for workers' compensation benefits under Section 306(c)(8) of the Workers' Compensation Act (Act) for binaural hearing loss. We affirm.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §513(8). Section 306(c)(8) provides, in pertinent part:
For all disability resulting from permanent injuries of the following classes, the compensation shall be exclusively as follows:77 P.S. §513(8)(i), (x).
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(8)(i) For permanent loss of hearing which is medically established as an occupational hearing loss caused by long-term exposure to hazardous occupational noise, the percentage of impairment shall be calculated by using the binaural formula provided in the Impairment Guides. The number of weeks for which compensation shall be payable shall be determined by multiplying the percentage of binaural hearing impairment as calculated under the Impairment Guides by two hundred sixty weeks. Compensation payable shall be sixty-six and two thirds per centum of wages during this number of weeks, subject to the provisions of clause (1) and subsection (a) of this section.
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(x) Whether the employe has been exposed to hazardous occupational noise or has long-term exposure to such noise shall be affirmative defenses to a claim for occupational hearing loss and not a part of the claimant's burden of proof in a claim.
In turn, Section 105.4 of the Act, added by Act of February 23, 1995, P.L. 1, states that "[t]he term 'hazardous occupational noise,' as used in this act, means noise levels exceeding permissible noise exposures as defined in Table G-16 of OSHA Occupational Noise Standards, 29 CFR 1910.95 (relating to occupational noise exposure) (July 1, 1994)." 77 P.S. §25.4. "By incorporating OSHA's occupational noise exposure standards, section 105.4 allows exposure up to ninety decibels for an eight-hour day before such exposure is considered hazardous." Joy Mining Machinery Company v. Workers' Compensation Appeal Board (Zerres), 8 A.3d 444, 446 n.1 (Pa. Cmwlth. 2010) (citation omitted). Finally, Section 105.6 of the Act states that "[t]he term 'long-term exposure,' as used in this act, means exposure to noise exceeding the permissible daily exposure for at least three days each week for forty weeks of one year." 77 P.S. §25.6.
Claimant has worked for Philadelphia Gas Works (Employer) since 1976. In 1994, he began working in Employer's meter shop where he serviced, cleaned and tested gas measuring instruments. In April of 2009, Claimant filed a claim petition alleging that he sustained bilateral hearing loss as of January 5, 2009, as a result of repetitive exposure to loud noise while in the course and scope of his employment in the meter shop. Employer denied the claim petition contending that Claimant's hearing loss was not work-related as well as raising the affirmative defense that Claimant was not exposed to hazardous occupational noise.
Before the WCJ, Claimant testified that the noise in the meter shop was intense, that he tested three to eight meters in the course of a day on one of two "transfer prover" machines installed in 2003, and that he conducted tests on those machines for three hours out of an eight-hour shift. Claimant stated that a large compressor that supplies air to pneumatic tools in an adjoining room was also loud and ran for the whole eight hours. He stated that another loud machine that washes meters was recently purchased and runs for four hours a day on the days that it is used. Claimant explained that he noticed that his hearing was diminished a year-and-a-half prior to the filing of his claim and that he had a hearing test at his attorney's request.
To support his claim for benefits, Claimant presented the deposition testimony of Aaron Shapiro, M.D. (Dr. Shapiro), a physician board certified in otolaryngology and in facial plastic and reconstructive surgery. Dr. Shapiro stated that Claimant reported a progressive hearing loss from the prior year. A physical examination of Claimant was normal. Dr. Shapiro noted that a 1975 audiogram showed that Claimant had essentially normal hearing across all frequencies but that a 1976 audiogram showed some notching at 4,000 hertz in both ears and some mild hearing loss in the low frequencies, a period before Claimant reported that he was exposed to loud noise in the workplace. Claimant's 2009 audiogram showed a 31.9% impairment under the 4th Edition of the AMA Impairment Guide. Dr. Shapiro acknowledged that he was not provided with any information regarding the noise levels at Employer's meter shop. Nevertheless, Dr. Shapiro opined that Claimant's hearing loss is related to his employment based on the audiograms, Claimant's history and his examination.
To establish the conditions of Claimant's employment in the meter shop, Employer presented the testimony of Emil Ottinger (Ottinger), its superintendent of meter measurement engineering. Ottinger testified that noise became an issue in 2005 when all of the machines were put together in one room so that a drywall partition could be installed in the meter shop and a quilted enclosure was installed in 2009. Ottinger explained that the larger prover has a ten minute cycle and that about five meters are tested a day. Ottinger stated that Claimant ran the two large provers and worked about three feet from the quilted enclosure; he sat about six feet from the machines when they were not enclosed. Ottinger stated that a noise test was conducted on December 17, 2009, and that the noise level was the same as a typical workday. Ottinger opined that it was probably louder than a typical workday because they ran the loudest piece of equipment that Employer had to test. He stated that the larger prover was enclosed during the testing, but the enclosure door was opened and Claimant ran the machine for additional testing after the employees left.
To establish that Claimant did not suffer a work-related hearing loss, Employer presented the deposition testimony and report of Lee Rowe, M.D. (Dr. Rowe), a physician board certified in otolaryngology and head and neck surgery. Dr. Rowe stated that Claimant was 60 years old with a three to four-year history of progressive hearing loss and that his physical examination was normal. Audiometric testing showed that Claimant has a 30% binaural hearing handicap under the AMA Guidelines. Based on his examination and the audiometric testing, Dr. Rowe opined that Claimant has evidence of presbycusis, or age-related progressive hearing loss. Claimant's progressive hearing loss at all frequencies over the last three to four years indicates presbycusis and not occupational hearing loss, and the hearing loss in the low frequencies and the loss in Claimant's left ear at 4,000 and 8,000 cycles per second that exceeds 75 decibels is also not characteristic of occupational hearing loss. Dr. Rowe opined that the onset of Claimant's hearing loss is more consistent with presbycusis because it occurred in the sixth decade of his life and it has been progressive over the last three or four years. Unlike Claimant's testimony before the WCJ, Dr. Rowe testified that Claimant indicated that he ran the meters at ten minutes per meter, that he worked on three to five meters per day, and that he would have been exposed to 50 minutes of noise at most. Dr. Rowe explained that continuous noise is more hazardous and that Claimant's history only indicates intermittent noise exposures. After Dr. Rowe formed his opinion that the hearing loss was age-related and not due to occupational exposure, he received noise dosimetry studies which were consistent with his opinion that Claimant's hearing loss was not work-related because he was not exposed to any noise level exceeding the permissible exposure limit under the OSHA guidelines.
To establish the affirmative defense that Claimant was not exposed to hazardous occupational noise under Section 306(c)(8)(x) of the Act, Employer presented the deposition testimony and report of Todd Allshouse (Allshouse), a board certified industrial hygienist. Allshouse performed a sound level monitoring at Employer's meter shop on December 17, 2009, with his colleague, David Konow (Konow), a health and safety specialist. Allshouse stated that he evaluated present noise exposures with the acoustical enclosure in place, and the enclosure was opened to mimic exposures that could have occurred prior to its installation. Allshouse opined that the proving equipment was operated as on a fairly typical workday, if not a worst-case scenario, as confirmed by Claimant and other workers at the site, with the equipment running and not running. Allshouse and Konow wore noise dosimeters and other dosimeters were attached at fixed locations. Allshouse stated that Konow was a proxy for Claimant and stayed within several feet of Claimant for the entire workday. Allshouse explained that the large prover was operated on a total of four meters for ten minutes each because the typical worst-case scenario was five meters tested for a total of 50 minutes. Allshouse testified that the time weighted average exposure for the large meter proving area was 66.6dBA over an eight-hour, 32-minute sampling period, and all of the dosimetry data collected measured less than 70 decibels over the approximately eight-and-one-half hour testing period in all areas of the meter shop, well below the 90dBA threshold under the Act.
The WCJ found Ottinger's testimony more credible than Claimant's conflicting testimony, Dr. Rowe's testimony more credible than Dr. Shapiro's conflicting testimony, and Allshouse's uncontradicted testimony as credible. Based on the credible evidence, the WCJ found that: Claimant's exposure to the noise of the large prover, the loudest piece of equipment, was intermittent for ten minutes at a time up to five times a day; Claimant's exposure to the noise of the pneumatic tools was intermittent as they were used for seconds at a time on a cyclical basis; the noise levels documented in the December 17, 2009 dosimetry testing reflected Claimant's individual exposure; the average noise levels to which Claimant was exposed over the course of an eight-hour day consistently fell below the 90 dBA OSHA permissible exposure limit under the Act; and that Claimant was not exposed to hazardous occupational noise.
As a result, the WCJ denied benefits for two reasons: (1) Claimant had failed to sustain his burden of proving a compensable work-related hearing loss under Section 306(c)(8)(i) of the Act; and (2) Employer had sustained its burden of proving the affirmative defense under Section 306(c)(8)(x) of the Act that Claimant was not exposed to hazardous occupational noise. Accordingly, the WCJ issued an order denying Claimant's claim petition. The Board affirmed the WCJ's decision and Claimant filed the instant petition for review.
The WCJ distinguished our opinion in Joy Mining Machinery Company because, in that case, there was no evidence that the employer conducted a test of the claimant's personal exposure to noise, the medical expert acknowledged that the noise intensity varied, and he could not say whether the noise levels exceeded 90 dBA. The WCJ also distinguished our opinion in General Electric Company v. Workers' Compensation Appeal Board (Bower), 734 A.2d 492 (Pa. Cmwlth. 1999), because, in that case, the employer tested the claimant's exposure for only one day and the employer's witnesses did not testify that the exposure was typical and would be the same on any other day.
Our scope of review of a Board decision is limited to determining whether an error of law was committed, constitutional rights were violated, or a necessary finding of fact was not supported by substantial evidence of record. McClure v. Workers' Compensation Appeal Board (Cerro Fabricated Products), 28 A.3d 951, 954 n.2 (Pa. Cmwlth. 2011). "Substantial evidence" is such relevant evidence as a reasonable person might accept as adequate to support a conclusion. Hoffmaster v. Workers' Compensation Appeal Board (Senco Products, Inc.), 721 A.2d 1152, 1155 (Pa. Cmwlth. 1998). In performing a substantial evidence analysis, the evidence must be viewed in a light most favorable to the party who prevailed before the WCJ. Id. It is immaterial that there is evidence in the record supporting a factual finding contrary to that made by the WCJ; rather, the pertinent inquiry is whether there is any evidence which supports the WCJ's factual finding. Id. It is solely for the WCJ to assess credibility, to resolve conflicts in the evidence, and to determine the weight to be given to any evidence. Id., 721 A.2d at 1155-56. The WCJ may reject the testimony of any witness in whole or in part even if that testimony is uncontradicted. Id. at 1156. This Court is precluded from disturbing the WCJ's findings of fact if they are supported by substantial evidence notwithstanding evidence to the contrary or that we may have resolved the evidentiary conflicts differently. Callahan v. Workmen's Compensation Appeal Board (Bethlehem Steel Corp.), 571 A.2d 1108, 1110 (Pa. Cmwlth. 1990).
Claimant first argues that Dr. Rowe's testimony was insufficient under Section 306(c)(8)(ii) of the Act because he did not rely on the Impairment Guide in finding that Claimant's hearing loss was age-related, and because Dr. Rowe's subtraction of hearing loss attributable to presbycusis was not appropriate because the Guide does not allow such a deduction. In support, Claimant cites to a portion of Dr. Rowe's report that relies on a treatise not sanctioned by the Act to form his opinion regarding causation and to portions of Dr. Shapiro's testimony. This argument is incorrect for several reasons.
Section 306(c)(8)(ii) states, in relevant part:
(ii) For permanent loss of hearing not caused by long-term exposure to hazardous occupational noise which is medically established to be due to other occupational causes such as acoustic trauma or head injury, the percentage of hearing impairment shall be calculated by using the formulas as provided in the Impairment Guides....77 P.S. §513(8)(ii).
First, under Section 306(c)(8) of the Act, the claimant has the burden of proving that he suffers from a permanent hearing loss of 10% or greater that is medically established to be work-related and caused by exposure to occupational noise. Flatley v. Workers' Compensation Appeal Board (Mallinckrodt Chemical), 803 A.2d 862, 867-68 (Pa. Cmwlth. 2002), appeal denied, 573 Pa. 667, 820 A.2d 705 (2003). While it is undisputed that Claimant suffers a permanent binaural hearing loss of more than 10%, the WCJ rejected as not credible Claimant's and Dr. Shapiro's testimonies concerning a relationship between Claimant's hearing loss and his exposure to noise at work in favor of Ottinger's and Dr. Rowe's testimony that Claimant's hearing loss was not due to occupational causes. See Washington Steel Corporation v. Workers' Compensation Appeal Board (Waugh), 734 A.2d 81, 84 (Pa. Cmwlth. 1999) (holding that a claimant did not demonstrate that he was entitled to benefits for a work-related hearing loss where the WCJ discredited both the claimant's testimony and that of his medical expert and only credited that of a doctor who testified that the hearing loss was due to non-work-related causes.)
Whether a claimant has, in fact, been exposed to hazardous occupational noise is not part of his burden of proof. Flatley, 803 A.2d at 868. Rather, the employer may assert that the claimant's exposure to such noise was not hazardous or long-term as an affirmative defense under Section 308(c)(8)(x) of the Act. Id. See also Joy Mining Machinery Company.
Second, as to the specific reason that Claimant contends that Dr. Rowe's testimony was not competent - that he did not rely on the Impairment Guide but instead relied on a treatise not sanctioned by the Act to form his opinion that Claimant's hearing loss was attributable to presbycusis and was not work-related - the use of the Impairment Guide does not go to what caused the hearing loss, but to the calculation of the amount of hearing loss. See Section 306(c)(8)(i) of the Act, 77 P.S. §513 (8)(i) ("For permanent loss of hearing which is medically established as an occupational hearing loss caused by long-term exposure to hazardous occupational noise, the percentage of impairment shall be calculated by using the binaural formula provided in the Impairment Guides....").
Finally, while the Act does not permit a deduction from a claimant's total binaural hearing impairment for that portion caused by presbycusis, see LTV Steel Company, Inc. v. Workers' Compensation Appeal Board (Mozena), 562 Pa. 205, 754 A.2d 666 (2000), Dr. Rowe did not allocate a portion of Claimant's hearing loss to presbycusis and another portion to occupational noise exposure. Rather, Dr. Rowe determined that there was no work-related hearing loss and his deposition testimony clearly supports the WCJ's findings in this regard. (Reproduced Record (R.R.) at 83a, 85a-88a, 90a-91a, 109a-111a.)
Moreover, even if we had not affirmed the WCJ's finding that Claimant's hearing loss was not work-related, we still would have affirmed the decision because the WCJ did not err in finding that Employer established the affirmative defense of Section 306(c)(8)(x) of the Act that Claimant was not exposed to long-term hazardous occupational noise. Claimant asserts that the December 17, 2010 dosimeter test was not adequate under Joy Mining Machinery Company because it did not reflect his personal exposure to noise because he did not wear a dosimeter, and because the reading was done for one day in the meter shop with the acoustical enclosure that was installed in the last few years and that was not present throughout his entire employment in the meter shop.
In order to prove the affirmative defense under Section 306(c)(8)(x) of the Act, the employer must establish either: (1) that the claimant was not exposed to sound levels exceeding 90 dBA during the relevant period of exposure to long-term hazardous noise; or (2) that such exposure did not exceed the permitted daily exposure for three days a week for 40 weeks in any one year for which long-term hazardous exposure is claimed. Joy Mining Machinery Company, 8 A.3d at 448. In determining that the employer had not established the affirmative defense in that case, we noted:
Whether the noise level at work constitutes hazardous occupational noise is a question of fact to be determined by the WCJ. General Electric Co. v. Workers' Compensation Appeal Board (Rizzo), 737 A.2d 852 (Pa. Cmwlth. 1999).
Here, there is no evidence that Employer conducted a test of Claimant's personal exposure to noise. None of the dosimetry readings presented as evidence are for Claimant. Moreover, Employer's expert witness, Dr. Callen, acknowledged that noise intensity will vary from day to day depending on the production techniques used and that, when he is not there to measure the noise, he cannot say whether the noise levels exceed 90 dB. Dr. Callen further admitted that the area where Claimant works is one of the plant's noisiest areas. Thus, despite Dr. Callen's observation that none of the individuals who were tested in the structural department had a dosimetry level above 90 dB on a time-weighted average basis, the WCJ could still conclude that those noise levels did not reflect Claimant's individual exposure.Id. at 448-49 (citations to the record omitted.)
In contrast, in this case, Allshouse testified that Konow wore a dosimeter and acted as a proxy for Claimant, staying in very close proximity with Claimant for the entire workday while Claimant operated the equipment. (R.R. at 266a.) Allshouse stated that measurements were taken in the immediate vicinity of the acoustical curtain, directly outside, and a bit further away. (Id. at 268a.) He testified that testing was performed both inside the acoustical enclosure and outside the enclosure. (Id. at 261a-62a.) Allshouse explained that the panels to the acoustical enclosure were opened, including one that was directly in front of the computer workstation, and measurements were taken without the enclosure in place to capture the noise exposure as if the acoustical curtain had not been there. (Id. at 261a, 269a.) Allshouse stated that he let the employees run the equipment according to their workload, and that Claimant and other employees indicated that what he was observing was a typical amount of activity on a typical workday, if not a typical worst-case scenario. (Id. at 262a-63a.) Allshouse also stated that the tests were conducted according to where Claimant indicated that he worked. (Id. at 268a.) Allshouse noted that although the highest momentary measured noise level was 92.8 decibels, the time weighted average exposure throughout Employer's meter shop were all measured at over an eight-hour period to be less than 70 dBA, well below the 90 dBA threshold under the Act. (Id. at 267a, 272a-74a.) Thus, there is substantial evidence demonstrating that the dosimeter testing reflected Claimant's personal exposure to noise at work, and supporting the WCJ's factual determination that the noise level at Claimant's work did not constitute hazardous occupational noise under the Act.
Ottinger also testified that the amount of work conducted during testing was that of a typical workday, the noise level was probably louder than on a typical workday, and the acoustical enclosure was opened for testing after the workforce had left for the day. (R.R. at 198a-99a, 200a.) --------
Accordingly, the Board's order is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 7th day of September, 2012, the order of the Workers' Compensation Appeal Board, dated February 3, 2012, at No. A11-0181, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge