Opinion
No. 1599 C.D. 2012
03-11-2013
Anthony Aquilino, Petitioner v. Workers' Compensation Appeal Board (Philadelphia Gas Works), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this appeal, Anthony Aquilino (Claimant) asks whether the Workers' Compensation Appeal Board (Board) erred in affirming a Workers' Compensation Judge's (WCJ) decision that denied his claim petition for workers' compensation benefits under Section 306(c)(8) of the Workers' Compensation Act (Act) for binaural hearing loss. Claimant asserts the WCJ erred in denying his claim petition by failing to first determine whether Claimant met his initial burden of proving he possessed a 10% binaural hearing loss and whether he was exposed to occupational noise. He argues the WCJ improperly chose to forego this analysis and found that his hearing loss was age-related. Claimant also contends the WCJ misapplied the standards for weighing Employer's affirmative defense evidence in a hearing loss case.
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:
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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.
77 P.S. §513(8)(i), (x).
In a recent, unreported opinion, this Court rejected very similar arguments to those presented by Claimant here, which were presented by one of Claimant's former co-workers with Philadelphia Gas Works (Employer). See Stallings v. Workers' Comp. Appeal Bd. (Phila. Gas Works) (Pa. Cmwlth., No. 296 C.D. 2012, filed September 7, 2012) (Pellegrini, P.J.) (unreported). Consistent with Stallings and other applicable case law, we affirm the workers' compensation authorities' denial of Claimant's claim petition here.
I. Factual and Procedural Background
On April 14, 2009, Claimant filed a claim petition alleging he sustained bilateral hearing loss as of December 3, 2007, which occurred during his employment with Employer. Employer denied the allegations. It also asserted Claimant's hearing loss was not work-related, and it raised the affirmative defense that Claimant was not exposed to hazardous occupational noise. Hearings ensued before a WCJ.
Before the WCJ, Claimant explained he worked for Employer from December 1978 until December 2007, when he suffered a work-related back injury, for which he receives workers' compensation benefits. Claimant did not return to work after his back injury.
Initially, Claimant worked in Employer's "streets department," where he remained for two years. WCJ Op., 1/11/11, Finding of Fact (F.F.) No. 5(a); Reproduced Record (R.R.) at 13a. For the first eight months, Claimant worked as a laborer, using pneumatic tools, including a jackhammer and a spade. After eight months, his job expanded to include operating heavy equipment and driving, maintaining and stocking Employer's trucks.
Claimant next worked in field service within the streets department, where he performed emergency appliance repair work. He would restore gas service when the streets department finished its repairs. He also performed service work in commercial buildings with loud noises. Employer provided Claimant with hearing protection when he worked in the streets department. Claimant underwent hearing testing when Employer hired him.
Beginning in 2003, Claimant began working in Employer's meter shop as a meter mechanic, eight to ten hours a day for three to four years. Prior to that time, Claimant worked in the meter shop during the summers for several years. Employer provided earplugs in the meter shop, and Claimant sometimes wore them. Claimant did not work on the "prover meter," but when it was on, he heard it because his workbench was the first one adjacent to the proving room and was located "probably 12 feet [away from the prover]." WCJ's Hearing, Notes of Testimony (N.T.), 6/23/09, at 12. The prover meter was very loud. He worked in a large room where the meters were repaired, which was separated from the prover room by a six-foot wall. Claimant worked with pneumatic tools all day. The pneumatic tools were "just as loud but the prover was a deafening loudness." N.T., 6/23/09, at 13; F.F. No. 5(g). By 2005 or 2006, Employer modified the layout of its shop and placed the prover in a room with no doors. Claimant believed this resulted in increased noise.
At his attorney's recommendation, Claimant underwent hearing testing in January 2009. Through the years, Claimant noticed increased difficulty with his hearing.
In support of his claim petition, Claimant presented the deposition testimony of Aaron Shapiro, M.D., who is board-certified in otolaryngology and in facial plastic and reconstructive surgery (Claimant's Physician). On January 7, 2009, Claimant's Physician performed audiological testing on Claimant and obtained a history. On physical examination, Claimant's ears appeared normal. Claimant's audiogram showed a 29.4% impairment. Claimant's Physician opined Claimant's hearing loss was related to his work activities with Employer.
In opposition, Employer presented the deposition testimony of Lee Rowe, M.D., who is board-certified in otolaryngology (Employer's Physician). Employer's Physician examined Claimant on September 24, 2009, and he obtained a history, which included several co-morbid factors directly related to the possibility of hearing loss, including smoking. Audiological testing conducted under Employer's Physician's direction revealed a "bilateral moderate low frequency sensori-neural hearing loss dropping to a profound high frequency loss bilaterally." F.F. No. 9(l); R.R. at 76a. Employer's Physician also reviewed the audiogram performed at Claimant's Physician's office, performed about eight months earlier. Employer's Physician noted Claimant's hearing worsened in that time period despite the fact Claimant no longer worked for Employer. This deterioration was not due to noise exposure because once an individual is removed from potentially hazardous noise, any further deterioration is "caused by something else." F.F. No. 9(n); R.R. at 78a.
Based on Claimant's age, and the fact that the deterioration occurred in an accelerated fashion, Employer's Physician opined the hearing loss was characteristic of presbycusis, or age related hearing loss. Id. Ultimately, Employer's Physician opined Claimant's hearing loss was "consistent with presbycusis and not secondary to occupational noise exposure." F.F. No. 9(o); R.R. at 79a.
Employer also presented the testimony of Emil Ottinger, its superintendent of meter measurement engineering. Ottinger reviewed the testimony of Claimant and Ulysses Stallings, another employee who filed a hearing loss claim. Ottinger testified the meter shop Claimant and Stallings worked in had a transfer prover, which is used to test the accuracy of gas readings for commercial or industrial meters. The transfer prover becomes noisy during testing. In 2003, Employer began using two transfer provers, but only one prover is used at a time.
According to Ottinger, 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 transfer prover has a 10 minute cycle and when run with a large rotator meter, noise became an issue. About five meters are tested on the larger prover each day. Claimant worked about 15 to 18 feet from the exterior of the enclosure around the prover meter. Ottinger testified Employer conducted sound testing of the meter shop on December 17, 2009, which was "probably louder than a typical day," and the loudest machines were running. F.F. No. 6(k); N.T., 4/27/10, at 25. Ottinger explained hearing protection is and was always available to employees at the meter shop after the expansion.
Employer also presented the testimony of Beverly Bright, its manager of safety training and field operations. Bright testified Claimant's work involved breaking up cement and asphalt for two years from 1978 through 1980. Bright testified that no one person is assigned to the jackhammer, the loudest tool used. He explained that a typical job involved using the jackhammer for only 30 minutes at a time, and in one day, a crew usually performed two jobs. Bright further explained Claimant's field service job would not have exposed him to jackhammers within 10 feet of him. Bright also testified Employer always made soft sponge ear protection available in the streets department. Ear muffs were worn on top of the sponge ear protection.
Employer also presented the deposition testimony of Todd Allshouse, a board-certified industrial hygienist. At Employer's request, Allshouse performed a sound level monitoring of Employer's meter shop on December 17, 2009, with his colleague, David Konow, a health and safety specialist. Allshouse explained the meter shop included a proving area within the larger open shop area. The testing performed by Allshouse evaluated the noise exposure with the acoustical enclosure in place, in addition to the noise level when the enclosure was opened to the greatest extent possible to mimic the exposure that could have occurred before installation of the enclosure. The proving equipment was operated as it would be on a typical work day, if not a "worst case scenario." F.F. No. 10(g); R.R. at 129a-130a. Allshouse and Konow wore noise dosimeters and other dosimeters were attached at fixed locations. Allshouse stated Konow served as a proxy for Stallings and stayed within several feet of Stallings for the entire work day. Additionally, Mike Fusi, an engineer/supervisor for Employer, wore a noise dosimeter.
While Stallings was still employed by Employer as of the date of the testing, Claimant no longer worked for Employer at that time. WCJ's Hearing, Notes of Testimony, 6/23/09, at 15-16, 20; Reproduced Record (R.R.) at 121a-22a, 123a.
Further, Allshouse explained the time weighted average exposure for the large meter proving area was 66.6 dBA over an 8 hour and 32 minute sampling period. This is below the 90 dBA threshold hazardous noise level as set forth in the Act. Allshouse explained various measurements were made throughout the building, and all the noise dosimetry data measured below 70 dBA, well below the 90 dBA threshold.
As Allhouse explained, the abbreviation for decibels is "dB." When looking at occupational noise exposure, decibels are measured on an "A scale" so the data is presented in terms of "dBA." R.R. at 131a.
Ultimately, the WCJ credited the testimony of Ottinger and Bright and rejected Claimant's testimony to the extent it conflicted with the testimony of these witnesses. Further, the WCJ credited the testimony of Employer's Physician over that of Claimant's Physician. The WCJ also credited Allshouse's uncontradicted testimony.
Based on the credible evidence, the WCJ determined: 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 permissible exposure limit under the Act; and, Claimant was not exposed to hazardous occupational noise.
As a result, the WCJ determined Claimant did not meet his burden of proving he experienced a compensable work-related hearing loss pursuant to Section 306(c)(8)(i) of the Act. Additionally, the WCJ determined Employer met its burden of proving its affirmative defense under Section 306(c)(8)(x) of the Act that Claimant was not exposed to hazardous occupational noise. Thus, the WCJ denied Claimant's claim petition.
In her decision, the WCJ also specifically distinguished our opinion in Joy Mining Machinery Company because, in that case, there was no evidence the employer conducted a test of the claimant's personal exposure to noise, the medical expert acknowledged the noise intensity varied, and he could not say whether the noise levels exceeded 90 dBA.
In addition, the WCJ 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 the exposure was typical and would be the same on any other day.
On Claimant's appeal, the Board affirmed. This appeal by Claimant followed.
II. Issues
On appeal, Claimant begins by asserting that he worked for Employer for 30 years when he retired in 2009. During that time period, he used tools and jack hammers. At the end of his 30 years of employment, Claimant learned he sustained a 30% binaural hearing loss as demonstrated by an audiogram. As such, he filed a claim petition seeking hearing loss benefits.
Our review is limited to determining whether the WCJ's findings of fact were supported by substantial evidence, whether an error of law was committed or whether constitutional rights were violated. Dep't of Transp. v. Workers' Comp. Appeal Bd. (Clippinger), 38 A.3d 1037 (Pa. Cmwlth. 2011).
"Substantial evidence is such relevant evidence as a reasonable person might accept as adequate to support a conclusion." Waldameer Park, Inc. v. Workers' Comp. Appeal Bd. (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003). "In performing a substantial evidence analysis, this court must view the evidence in a light most favorable to the party who prevailed before the factfinder." Id. "Moreover, we are to draw all reasonable inferences which are deducible from the evidence in support of the factfinder's decision in favor of that prevailing party." Id. "It does not matter if there is evidence in the record supporting findings contrary to those made by the WCJ; the pertinent inquiry is whether the evidence supports the WCJ's findings." 3D Trucking Co., Inc. v. Workers' Comp. Appeal Bd. (Fine & Anthony Holdings Int'l), 921 A.2d 1281, 1288 (Pa. Cmwlth. 2007). Also, it is solely for the WCJ, as factfinder, to assess credibility and resolve evidentiary conflicts. Waldameer Park. As such, the WCJ may reject the testimony of any witness, in whole or in part. Id.
Despite suffering a hearing loss that met the standard under the Act and despite his exposure to occupational noise, Claimant contends, the WCJ did not articulate that he met his burden under the case law, and that the burden then shifted to Employer to provide an alternative defense. Instead, the WCJ simply relied on Employer's medical evidence that Claimant's hearing loss as demonstrated on the audiogram was attributable to presbycusis. Claimant argues this evidence is faulty because our Supreme Court holds that an employer cannot deduct that portion of the impairment caused by presbycusis from the total binaural hearing impairment as there is no reliable scientific means to quantify the effect of aging on an individual's hearing loss. See LTV Steel Co. v. Workers' Comp. Appeal Bd. (Morenza), 562 Pa. 205, 754 A.2d 666 (2000).
Further, Claimant maintains, the WCJ did not correctly evaluate the affirmative defense evidence Employer presented. Specifically, Claimant contends that in Joy Mining Machinery Co. v Workers' Compensation Appeal Board (Zerres), 8 A.3d 444, 448 (Pa. Cmwlth. 2010), this Court held a WCJ's acceptance of dosimeter readings as an affirmative defense in a hearing loss case must reflect the "[c]laimant's personal exposure to noise." Here, Claimant argues, the dosimeter readings Employer presented were taken on one day, December 17, 2009, and they did not reflect Claimant's personal exposure to noise. Specifically, Claimant contends the monitoring equipment was not worn by someone performing Claimant's job as a meter repair specialist, and it was only performed at Employer's meter shop, after sound baffling was installed, not at the numerous industrial locations in which Claimant worked.
III. Discussion
A. Stallings
Recently, in Stallings, a persuasive unreported memorandum opinion, this Court rejected substantially similar arguments to those presented by Claimant here. There, we affirmed the same WCJ's denial of a claim petition seeking benefits for binaural hearing loss filed by Ulysses Stallings, Claimant's former co-worker, who worked in closer proximity to the prover machines in Employer's meter shop over a longer period than Claimant here. The credited evidence presented in that case was substantially similar to that presented here. Indeed, as in Stallings, Employer here presented the testimony of Allshouse, Ottinger and Employer's Physician, all of whom the WCJ credited.
Before this Court, Stallings challenged the sufficiency of Employer's medical evidence asserting, among other things, Employer's Physician improperly deducted the percentage of hearing loss attributable to presbycusis from Claimant's total hearing impairment, a method disapproved by our Supreme Court in LTV Steel Co. Additionally, Stallings argued the dosimeter testing performed by Allshouse was not adequate under this Court's decision in Joy Mining Machinery Co. because it did not reflect his personal exposure to noise. Speaking through President Judge Pellegrini, this Court rejected Stallings' arguments and upheld the denial of his claim petition. As discussed in greater detail below, we reach the same result here.
B. WCJ's Analysis Regarding Claimant's Burden of Proof/Causation
Claimant first argues the WCJ erred in denying his claim petition where the WCJ did not first determine whether Claimant actually possessed a 10% bilateral hearing loss and whether he was exposed to occupational noise. Instead, the WCJ simply skipped this analysis and found Claimant's hearing loss was age-related.
Claimant contends a review of the record reveals he met his burden of proving he: (1) possessed binaural hearing loss of 10%; and (2) was exposed to occupational noise from 2003 to 2007 because the dosimeter readings exceeded 85dBAs. Claimant maintains the WCJ erred in not making these findings. Instead, the WCJ simply decided the nature of Claimant's hearing loss was not work-related based on Employer's Physician's opinion. Claimant assigns error in the WCJ's analysis, noting that in LTV Steel Co., our Supreme Court held an employer cannot deduct that portion of the impairment caused by presbycusis from the total binaural hearing impairment.
Pursuant to Section 306(c)(8) of the Act, the claimant bears the burden of proving he suffered a permanent hearing loss of 10% or greater that is medically established to be work-related and caused by the long-term exposure to hazardous occupational noise. Flatley v. Workers' Comp. Appeal Bd. (Mallinckrodt Chem.), 803 A.2d 862 (Pa. Cmwlth. 2002). A claimant seeking benefits for an alleged work-related hearing loss, like any injured worker, bears the burden of proving all elements necessary to support an award. Rockwell Int'l v. Workers' Comp. Appeal Bd. (Sutton), 736 A.2d 742 (Pa. Cmwlth. 1999). Absent proof of work-related causation of an injury, an employee is not entitled to benefits. Id. A claimant is not entitled to a presumption of causation merely because he shows his hearing loss exceeds 10%. Id.; see also Washington Steel Corp. v. Workers' Comp. Appeal Bd. (Waugh), 734 A.2d 81 (Pa. Cmwlth. 1999).
Whether a claimant has, in fact, been exposed to hazardous occupational noise is not part of his burden of proof. Flatley v. Workers' Comp. Appeal Bd. (Mallinckrodt Chem.), 803 A.2d 862 (Pa. Cmwlth. 2002). Rather, the employer may assert 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 Mach. Co.
Here, it is undisputed that Claimant suffers a permanent binaural hearing loss greater than 10%. However, the WCJ rejected as not credible the testimony of Claimant and his Physician regarding a relationship between Claimant's hearing loss and his exposure to noise at work. F.F. Nos. 13, 14. Instead, the WCJ credited the testimony of Ottinger, Bright and Employer's Physician that Claimant's hearing loss was not due to occupational noise exposure. Id.
Moreover, contrary to Claimant's assertions, we discern no error in the WCJ's analysis. Claimant faults the WCJ for failing to make a finding as to the exact percentage of hearing loss he sustained. Because the WCJ determined Claimant's hearing loss was attributable to non-work-related causes, a finding on the exact percentage is immaterial. Further, the WCJ did not fail to make a finding regarding Claimant's alleged exposure to hazardous occupational noise; rather, the WCJ rejected Claimant's testimony to the extent it conflicted with Employer's witnesses. Also, as discussed more fully below, the WCJ credited Allshouse's uncontradicted testimony that Claimant was not exposed to hazardous occupational noise.
In Waugh, this Court, speaking through Judge (now President Judge) Pellegrini, held that a claimant did not prove he was entitled to hearing loss benefits where the WCJ discredited the testimony of both claimant and his medical expert, and only credited the testimony of a physician who opined the claimant's hearing loss was due to non-work-related causes. Accord Stallings. The same result is warranted here.
Claimant correctly points out that the Act does not permit a deduction from a claimant's total binaural hearing impairment for that portion caused by presbycusis. See LTV Steel Co. Here, however, Employer's Physician did not allocate a portion of Claimant's hearing loss to presbycusis and another portion to occupational noise exposure. Rather, Employer's Physician opined: "[Claimant] exhibits evidence of an accelerated hearing loss consistent with presbycusis and not secondary to occupational noise exposure." R.R. at 79a (emphasis added); see also R.R. at 83a. In short, Employer's Physician's testimony amply supports the WCJ's findings that Claimant's hearing loss was not caused by hazardous exposure to occupational noise. F.F. Nos. 9(n)-(q), 14; R.R. at 77a-83a, 90a, 98a-99a; see Stallings. We reject Claimant's arguments to the contrary.
C. Sufficiency of Employer's Affirmative Defense Evidence
Claimant also argues the WCJ erred in misapplying the standards for weighing Employer's affirmative defense evidence. He reminds us that our decision in Joy Mining Machinery Co. holds that a WCJ's acceptance of dosimeter readings as an affirmative defense in a hearing loss case must reflect a claimant's personal exposure to noise.
Here, Claimant contends the WCJ erred because the evidence—namely the noise dosimeter reading performed on December 17, 2009—did not accurately reflect Claimant's personal exposure to noise. Claimant asserts the dosimeter test was not adequate under Joy Mining Machinery Co. because (1) the dosimeter testing was performed two years after Claimant ceased working in the meter shop and the dosimeter was not worn by a worker performing the job of a mechanic; and (2) the readings were done for one day in a room that had sound-proofing material that was not in place when Claimant worked there. Further, the dosimeter testing in the sound-proofed shop still showed that the large meter prover measured a noise level of 92.8dBA on a short-term basis, that the meter flushing station read 90 dBAs, and that in the wet testing area there was a reading of 91.5 dBAs.
In order to prove the affirmative defense under Section 306(c)(8)(x) of the Act, an employer must establish either that: (1) the claimant was not exposed to sound levels exceeding 90 dBA during the relevant period of exposure to long-term hazardous noise; or (2) 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 Co.
Whether the noise level at work constitutes hazardous occupational noise is a question of fact to be determined by the WCJ. Gen. Elec. Co. v. Workers' Comp. Appeal Bd. (Rizzo), 737 A.2d 852 (Pa. Cmwlth. 1999). --------
In Joy Mining Machinery Co., we affirmed a WCJ's determination that the employer did not establish the affirmative defense. There, a WCJ determined the employer failed to credibly establish that the claimant was not exposed to hazardous occupational noise. We stated:
Here, there is no evidence that [the] [e]mployer conducted a test of [the] [c]laimant's personal exposure to noise. None of the dosimetry readings presented as evidence are for [the] [c]laimant. Moreover, [the] [e]mployer'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 [the] [c]laimant 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 [the] [c]laimant's individual exposure.Id. at 448-49 (record citations omitted).
Here, unlike in Joy Mining Machinery Co., the WCJ specifically found: "The noise levels reflected by the 12/17/09 dosimetry testing reflected Claimant's individual exposure." F.F. No. 16 (emphasis added). In crediting Allshouse's "uncontradicted" testimony here, the WCJ found that Allshouse consulted with Claimant and Employer's representatives in performing the testing. F.F. No. 15.
Further, with regard to the testing, Allshouse testified Konow wore a dosimeter and acted as a proxy for Stallings, the employee who operated Employer's proving equipment. R.R. at 133a. Significantly, the credited evidence reveals that Stallings worked about three feet from the quilted enclosure, and about six feet from the machines when they were not enclosed. N.T., 4/27/10, at 21. Unlike Stallings, Claimant did not operate the proving equipment, and he worked 15 to 18 feet from the exterior of the acoustical enclosure. Id.
In conducting the noise level testing, Konow remained in very close proximity to Stallings for the entire workday while Stallings operated the equipment. R.R. at 133a. Allshouse stated that measurements were taken in the immediate vicinity of the acoustical curtain, directly outside, and a bit further away. R.R. at 135a. He testified testing was performed both inside and outside the acoustical enclosure. R.R. at 128a-29a. To that end, Allshouse explained the panels to the acoustical enclosure were opened, including one 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 did not exist. R.R. at 128a, 136a.
Further, Allshouse stated he let the employees run the equipment according to their workload, and Stallings and other employees indicated what he was observing was a typical amount of activity on a typical workday, if not a typical worst-case scenario. R.R. at 129a-130a. Allshouse also stated the tests were conducted according to where Stallings indicated that he worked. R.R. at 135a. Further, Allshouse conducted short-term measurements on the pneumatic tools Claimant used, which were used cyclically throughout the day, for several seconds at a time. R.R. at 137a-38a. Allshouse noted that, although the highest "momentary" measured noise level was 92.8 dB, the time weighted average exposure throughout the meter shop measured less than 70 dBA, well below the 90 dBA threshold under the Act, over an eight-hour period. R.R. at 134a, 139a-141a.
Based on Allshouse's credited testimony, the WCJ found:
[16. (f)] Mr. Allshouse's professional and uncontradicted opinion was that during Claimant's length of employment while the meter [shop] was located at 9th and Diamond, the representative data suggested the noise exposure was below 70 dBA in all areas tested, significantly below the 90 dBA threshold. With the acoustical enclosure not in place, representative data was collected and using the assumption that
the proving equipment would be operated up to about 50 minutes per day, the representative data supports the conclusion that the exposures would be below 90 dBA.F.F. Nos. 16(f), 17, 18.
17. Claimant's exposure to the noise of the prover meter, the loudest piece of equipment, was intermittent as it was not run on a continuous basis but rather for 10 minutes at a time up to 5 times a day. Additionally, Claimant's exposure to the noise of pneumatic tools was intermittent as they were used for seconds at a time on a cyclical basis.
18. The Judge finds, based on the credited testimony of Mr. Allshouse that as the average noise levels at [Employer] consistently fell below the OSHA permissible exposure limit of 90 decibels over the course of an eight hour day that Claimant was not exposed to hazardous occupational noise.
In sum, the WCJ's findings, which are amply supported by record, reveal the noise dosimeter testing reflected Claimant's individual noise exposure at work. In Stallings, we upheld nearly identical findings based on the same noise dosimeter testing with regard to a claimant who worked in closer proximity to the proving equipment, for several years longer than Claimant here. Further, as in Stallings, the record supports the WCJ's factual finding that the noise level at Claimant's work did not constitute hazardous occupational noise under the Act.
For the foregoing reasons, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 11th day of March, 2013, the order of the Workers' Compensation Appeal Board is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge
In turn, Section 105.4 of the Act, added by Act of February 23, 1995, P.L. 1, states "[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 Mach. Co. v. Workers' Comp. Appeal Bd. (Zerres), 8 A.3d 444, 446 n.1 (Pa. Cmwlth. 2010) (citation omitted). Finally, Section 105.6 of the Act states "[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.