Opinion
No. 2421 C.D. 1999.
Submitted: December 31, 1999.
Filed: May 11, 2000.
Before: Honorable Dan Pellegrini, Judge, Honorable Rochelle S. Friedman, Judge, Honorable Samuel L. Rodgers, Senior Judge.
OPINION
Flagg Brass (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed as amended the decision of the workers' compensation judge (WCJ) granting Joseph Kararzynski's (Claimant) claim petition requesting benefits for a binaural hearing loss suffered as a result of long-term exposure to hazardous occupation noise. We reverse.
Claimant worked for Employer as a sheet metal mechanic from November 1960 until he retired on June 20, 1988. On February 1, 1995, Claimant filed a claim petition, alleging that he suffered an occupational hearing loss resulting from his exposure to noise at work. Employer filed an untimely answer, denying the allegations, and the matter was assigned to a WCJ.
Claimant testified about his work history, his military history and described the types of noise to which he was exposed. Claimant also testified that his hearing gradually deteriorated during the time he worked for Employer. He acknowledged that Employer began testing the hearing of employees about four or five years prior to his retirement, but that test results were not explained to him. Claimant submitted a report authored by Matthew J. Nagorsky, M.D., who examined Claimant on March 24, 1998. The doctor opined that Claimant had sustained a 17.8 percent permanent binaural hearing impairment due to exposure to noise trauma while working for Employer.
In response, Employer submitted a report from Arnold K. Brenman, M.D., who examined Claimant on February 25, 1998. Dr. Brenman opined that Claimant's binaural hearing impairment measured 18.8 percent and could be attributed to either Claimant's occupation noise exposure or presbycusis. Dr. Brenman further opined that using statistical measurements that estimate the portion of hearing loss attributed to aging provides a 7.5 percent impairment of Claimant's hearing loss at the time of retirement ten years earlier.
Presbycusis is defined as the "loss of ability to perceive or discriminate sounds as a part of the aging process. . . ." Stedman's Medical Dictionary 1254 (25th ed. 1990).
The WCJ's Finding of Fact No. 1 contains a typographical error indicating a retirement date for Claimant on June 20, 1998, rather than June 20, 1988, ten years earlier.
The WCJ credited both Claimant's testimony and the opinions stated by Dr. Nagorsky in his report and rejected Dr. Brenman's opinions, determining that Claimant had proven that he sustained a 17.8 percent compensable hearing loss caused by exposure to noise at work. The WCJ concluded that Employer had received timely notice of Claimant's injury through the filing of the claim petition, because the WCJ determined that Claimant was "unaware of the nature and extent of his work-related hearing loss until he filed a claim petition on or about January 30, 1995." (WCJ's decision, p. 5).
The WCJ also indicated that Act 1 of 1995 (Act 1), Act of February 23, 1995, P.L. 1, the hearing loss amendments to the Workers' Compensation Act, did not apply to the present case because Claimant's claim petition was filed prior to its enactment. Based on the non-applicability of Act 1, the WCJ determined that Claimant's claim petition was timely filed. In other words, the WCJ concluded that the statute of limitations section of Act 1, which requires the filing of a claim petition within three years of the date of last exposure to hazardous occupational noise was inapplicable. The WCJ also concluded that Employer had not filed a timely answer to Claimant's petition and that Claimant was entitled to 46.28 weeks of benefits at a rate to be determined by the parties with an assessment of interest from January 30, 1995 at a rate of 10 percent per annum.
Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 1-104.4, 2501-2626.
Section 306(c)(8)(viii) of Act 1, 77 P. S. § 513(8)(viii).
Employer appealed to the Board, alleging a lack of substantial evidence to support various findings and that the WCJ should have applied Act 1 to this case and thereby, erred in concluding that Claimant's petition was timely filed. Employer also alleged that notice to Employer was not timely, that the WCJ failed to identify a date of injury and an average weekly wage and benefit rate, that the WCJ erred in awarding interest from January 30, 1995, and further erred in addressing Employer's late answer in light of Claimant's failure to object.
The Board reviewed the evidence concluding that the WCJ's findings were supported by substantial evidence. Then the Board held that Act 1 did apply because, although the claim was filed before the effective date of Act 1, no benefits were paid or awarded prior to that date, citing Bible v. Department of Labor and Industry, 548 Pa. 247, 696 A.2d 1149 (1997). However, the Board held that the WCJ had properly applied Act 1 in that the date from which the statute of limitation begins to run is the date when a claimant learns he has sustained a hearing loss that is related to his exposure to hazardous occupational noise at work. The Board also responded to the rest of Employer's arguments, essentially affirming the WCJ's decision. The Board then ordered the matter remanded for the calculation of benefits, indicating that the benefits should be calculated according to Claimant's average weekly wage in 1995, the year the claim petition was filed.
However, the Board did not recognize the typographical error made by the WCJ in Finding of Fact No. 1 and relied on an incorrect date of retirement throughout its decision. The Board did find that the WCJ erred in addressing Employer's late answer because Claimant failed to object.
Employer now appeals to this Court, raising the following issues for our review: (1) whether Claimant's petition is time barred pursuant to Section 306(c)(8)(viii) of Act 1, (2) whether the Board erred in concluding that February 1, 1995 is the date of injury for calculation purposes when Claimant last worked for Employer in 1988, and (3) whether Claimant was entitled to interest 21 days after February 1, 1995.
Our scope of review in a workers' compensation appeal is limited to determining whether an error of law was committed, constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. General Electric Co. v. Workers' Compensation Appeal Board (Bower), 734 A.2d 492 (Pa.Cmwlth. 1999), petition for allowance of appeal denied, ___ Pa. ___, ___ A.2d ___ (803 M.D. Alloc. Dkt. 1999, January 5, 2000).
Initially, we begin our discussion by reiterating the holding in Bible, wherein the court held that the retroactive application of the 1995 amendments was not constitutionally infirm thereby allowing the amendments to apply "to all claims existing as of the effective date of this act for which compensation has not been paid or awarded." Id. at 252, 696 A.2d at 1151. Because Claimant here filed his claim petition on February 1, 1995, a date before the enactment of Act 1 on February 23, 1995, but was not paid or awarded benefits before the enactment, we conclude that Act 1 is applicable to this case.
Our reference to Bible is to show that Act 1 applies here because compensation has not been paid or awarded. Claimant only argued that Act 1 was inapplicable because his claim was filed prior to Act 1's enactment. He did not argue that if applicable, Act 1 was unconstitutional. Claimant waived this issue and the Court may not sua sponte consider issues not raised by the parties. Jonathan Sheppard Stables v. Workers' Compensation Appeal Board (Wyatt), 739 A.2d 1084 (Pa.Cmwlth. 1999).
Based upon the supposition that Act 1 applies here, Employer first argues that Claimant's claim petition is barred by Section 306(c)(8)(viii) of Act 1, which states:
(viii) Whenever an occupational hearing loss caused by long-term exposure to hazardous occupational noise is the basis for compensation or additional compensation, the claim shall be barred unless a petition is filed within three years after the date of last exposure to hazardous occupational noise in the employ of the employer against whom benefits are sought.
Employer contends that the Board misinterpreted "date of last exposure" to mean the date on which Claimant learned that he sustained a hearing loss related to his exposure to hazardous occupational noise. Relying on the language in the statute and this Court's discussion in General Electric Co. v. Workers' Compensation Appeal Board (Rizzo), 737 A.2d 852 (Pa.Cmwlth. 1999), and Toth v. Workers' Compensation Appeal Board (USX Corp.), 737 A.2d 838 (Pa. Cmwlth. 1999), we agree.
In Rizzo, the claimant continued to work for the employer throughout the pendency of the action so the question of the timeliness of the filing of the claim petition was related to the issue of the degree of noise exposure, i.e., when was the claimant last exposed to hazardous occupational noise as that term is defined in Section 105.4 of Act 1, 77 P. S. § 25.4. The court remanded the case so that the WCJ could determine the date of last exposure to hazardous occupational noise. In giving direction to the WCJ on remand, the court stated:
If Claimant was not exposed to hazardous occupational noise within three years of the date on which he filed his claim petition, Claimant's claim was untimely filed. However, if Claimant was exposed to hazardous noise within the three years period prior to filing his claim petition, then Claimant's petition was timely filed and he should receive benefits.
Id. at 858.
In Toth, the claimant filed his claim petition on September 13, 1995. The WCJ determined that the claimant had to have been exposed to hazardous occupational noise between September 13, 1992, three years prior to the filing of the claim petition, and August 27, 1993, the date of claimant's retirement. Again, the Toth case centered on the extent of the claimant's exposure to the requisite noise level. After finding that the claimant had not been so exposed, benefits were denied on the basis that the claim petition had not been timely filed.
Although the case before us does not raise an issue concerning whether the level of noise was hazardous, the interpretation of Section 306(c)(8)(viii) of Act 1 remains the same. Here, Claimant stopped working on June 20, 1988, and filed his claim on February 1, 1995. Clearly, more than three years passed between the time Claimant was exposed to hazardous occupational noise and his filing of his claim petition. Therefore, we must conclude that Claimant's claim is time barred. See also School District of Philadelphia v. Workers' Compensation Appeal Board (Hennegan), ___ A.2d ___ (Pa. Cmwlth. 2000) (No. 2228 C.D. 1999, filed May 11, 2000) and Anchor Glass Container Corp. v. Workers' Compensation Appeal Board (Temechko), ___ A.2d ___ (Pa.Cmwlth. 2000) (No. 2215 C.D. 1999, filed April 28, 2000).
Having determined that Claimant's claim is time barred, we need not reach the other issues raised by Employer.
Accordingly, we reverse the Board's order.
ORDER NOW, May 11, 2000, the order of the Workers' Compensation Appeal Board, at No. A98-2999, dated August 11, 1999, is reversed.
I concur with the majority in reversing the decision of the Workers' Compensation Appeal Board but write separately because I do not believe that Bible v. Department of Labor and Industry, 548 Pa. 247, 696 A.2d 1149 (1997) holds that all provisions of Section 306c(8)(viii) of the Act of February 22, 1995, P.L. 1 (Act 1), 77 P. S. § 513(8)(viii), apply retroactively.
Joseph Katarzynski (Claimant) worked for Flagg Brass (Employer) as a sheet metal mechanic until he retired in 1988. On February 1, 1995, Claimant filed a claim petition alleging that he suffered an occupational hearing loss resulting from his exposure to noise during his 28 years of working for Employer. Employer opposed the claim contending that, among other things, the claim was time barred because it was not filed within three years of Claimant's last exposure to hazardous noise as required by Section 306(c)(8)(viii) of the Act as part of Act 1, although that section was enacted after Claimant had filed his claim petition. After receiving testimony, the WCJ found that Claimant had suffered a compensable hearing loss, that this provision of Act 1 did not apply, and awarded benefits. The Board reversed, holding, as does the majority, that Act 1's requirement that the last exposure must be within three years of filing the complaint applies retroactively based upon our Supreme Court's decision in Bible v. Dept. of Labor and Industry, 548 Pa. 247, 696 A.2d 1149 (Pa. 1997).
While our Supreme Court held that retroactive application of those provisions in Act 1 dealing with how compensation was to be calculated did not violate due process, it did so because the Act did not impair a claimant's right to receive compensation for hearing loss but merely changed the remedy. In addressing the claimant's due process argument, it stated:
[Claimants] argue that retroactive application of Act 1 violates due process because it alters the elements of the cause of action for hearing loss so substantially as to abrogate their claims for complete loss of use. They cite Jenkins v. Hospital of the Medical College of Pennsylvania, 535 Pa. 252, 634 A.2d 1099 (1993), and Gibson v. Commonwealth, 490 Pa. 156, 415 A.2d 80 (1980). They also argue that their right to seek compensation "vested" at the time of injury and the law in effect at the time of injury must be followed.
In Jenkins, we held that a statute precluding a claim for damages based on "wrongful birth" could not extinguish a cause of action that had accrued prior to the effective date of the statute. In Gibson, we held that the sovereign immunity statute passed in 1978 could not be retroactively applied to causes of action that had accrued following our overruling of common law sovereign immunity in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978). The appellees argue that they likewise have a vested right to pursue a "cause of action" for compensation for complete loss of hearing that could not be extinguished.
The flaw in this argument is that Act 1 did not extinguish a "cause of action" for compensation for complete loss of hearing. Rather, it created an "action" for compensation for partial loss of hearing, and substituted a legislatively defined method of determining hearing loss, including "complete" loss, for the judicial interpretation spawned by Hartlieb.
Bible, 696 A.2d at 1153, 1154.
In this case, applying Section 306(c)(8)(viii) of the Act retroactively does more than change the remedy; it impairs a claimant's right to receive compensation because it extinguishes an already-filed claim which our Supreme Court in Jenkins and Gibson held could not be extinguished by a retroactive application of a statute. If the constitutionality of Act 1 had been raised, Bible would not govern because Claimant's right to receive compensation would have been impaired. However, even though Claimant said that Act 1 did not apply to him because he filed prior to its enactment and he was the prevailing party below, he never raised that issue.
The holding in this case may also be at variance with what appears to be dicta in Socha v. Workers' Compensation Appeal Board (Bell Atlantic PA), 725 A.2d 1276, 1281 (Pa.Cmwlth. 1999), where we stated:
A claimant cannot be charged with the knowledge that he or she has suffered a compensable partial hearing loss until the claimant is informed by a physician or other health care provider that the permanent binaural hearing impairment may exceed, or in fact does exceed, ten percent, as required by section 306(c)(8)(iii) of the Act, and that such loss is work-related.
Section 306(c)(8)(iii) provides that no benefits shall be payable if there is a level of binaural hearing impairment as calculated under the impairment guides which is equal to or less than ten per centum.
The major difficulty that I have had with this case is whether the Board can be affirmed when the Claimant never argued that the Board should be affirmed because Act 1 was unconstitutional and extinguished his cause of action, but only argued that Act 1 did not apply because he filed his claim prior to its enactment. While I sympathize with Claimant because he was the winning party at all stages of the proceedings below and the retroactivity of Act 1 was in doubt for most of the litigation, although we can affirm on an alternative basis, I don't believe I can reverse unless Claimant had raised somewhere in the proceedings that Act 1 unconstitutionally extinguished his cause of action.
Accordingly, with much reluctance, I concur in the majority's decision.
Judge Friedman joins in this concurring opinion.