Opinion
No. 780 C.D. 2014
09-25-2014
Fisher & Ludlow, Inc., Petitioner v. Workers' Compensation Appeal Board (Swartzfager), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Fisher & Ludlow, Inc. (Employer) petitions for review from the order of the Workers' Compensation Appeal Board (Board) which affirmed the Workers' Compensation Judge's (WCJ) grant of the Claim Petition filed by Robert Swartzfager (Claimant).
On October 17, 2011, Claimant petitioned for benefits for an alleged permanent occupational hearing loss of fifty-five percent, due to continued exposure to "loud and damaging" noise while working for Employer. Claim Petition, October 17, 2011, at 1.
At a hearing before the WCJ on January 30, 2012, Claimant testified that he began working for Employer in September 1995 and was still working for Employer at the time of the hearing. Notes of Testimony, January 30, 2012 (N.T.) at 9; Reproduced Record (R.R.) at 17a. Claimant testified that when he began working for Employer, his hearing was excellent. N.T. at 12; R.R. at 20a. He first noticed a problem with his hearing approximately five or six years ago, and since then, the problem has worsened. N.T. at 13; R.R. at 21a. He complained of muffled hearing and ringing in his ears from being continuously exposed to loud noises at work. N.T. at 13-14; R.R. at 21a- 22a. He worked for Employer as a saw operator and in shipping, which both have great noise exposure. N.T. at 15, 19; R.R. at 23a, 27a. He wore double hearing protection at work, which included foam insert plugs and muffs, which was required for numerous years. N.T. at 20; R.R. at 28a. He was a deer hunter and hunted two or three days a year. N.T. at 23; R.R. at 31a. Claimant also stated that he used foam ear plugs when mowing his lawn. He was sent to a hearing examination by Employer, where he was told he needed hearing aids. Claimant did not obtain the hearing aids. N.T. at 22-23, 36; R.R. 30a-31a, 44a.
Claimant presented the deposition testimony of Steven T. Froman, M.D. (Dr. Froman), a board-certified otolaryngologist. Deposition of Steven T. Froman, M.D., May 1, 2012, (Dr. Froman Deposition) at 4; R.R. at 67a. Claimant's attorney referred him to Dr. Froman in October 2011. N.T. at 28-29, 35-36; R.R. at 36a-37a, 43a-44a. Dr. Froman testified that his certified audiologist performed an audiology test on Claimant on October 17, 2011. Dr. Froman Deposition at 10; R.R. at 73a. From the test, Dr. Froman determined that Claimant suffered from a bilateral mild to profound neurosensory hearing loss, which was permanent, irreversible, and untreatable. Dr. Froman Deposition at 12-13; R.R. at 75a-76a. The results of the audiogram revealed a fifty-five percent binaural handicap. Dr. Froman Deposition at 12; R.R. at 75a. Dr. Froman opined that Claimant's hearing loss was a result from his "total and cumulative exposure to loud noise" during his years with Employer. Dr. Froman Deposition at 13; R.R. at 76a. Dr. Froman stated that the degree of Claimant's hearing loss was far greater than patients who were recreational hunters, and therefore he did not believe Claimant's hunting was a significant contributory cause of his hearing loss. Dr. Froman Deposition at 15; R.R. at 78a.
Employer presented the deposition testimony of Dennis S. Gorscak, CIH, CSP (Gorscak) on April 30, 2012. Gorscak is a certified safety professional and certified industrial hygienist. Deposition of Dennis S. Gorscak, CIH, CSP, April 30, 2012, (Gorscak Deposition) at 4; R.R. at 118a. Gorscak performed dosimetry testing on March 29, 2012, at Employer's plant. Gorscak Deposition at 6; R.R. at 120a. The testing involved placing a device on Employer's employees during their shifts to measure the sound pressure level intensity they were exposed to. Gorscak Deposition at 7-8; R.R. at 121a-122a. Based upon the testing, employees' full shift exposure was eighty-six percent of the standard, or eighty-eight point nine decibels (dBA). Gorscak Deposition at 20, 22; R.R. at 134a, 136a. Therefore, on this particular day, employees' exposure was below the permissible exposure limit of ninety dBA for eight hours. Gorscak Deposition at 22; R.R. at 136a.
Employer then presented the testimony of Roy Thomas Landahl (Landahl), the plant manager for Employer. Deposition of Roy Thomas Landahl, April 30, 2012, (Landahl Deposition) at 3; R.R. at 173a. Landahl testified that supervisors monitor the employees to make sure they wore dual hearing protection. Landahl Deposition at 7; R.R. at 177a. He was present during the dosimetry testing and testified that the first shift employees were monitored on March 29, 2012. Landahl Deposition at 11; R.R. at 181a. Landahl noted that Claimant worked the second shift on the day of the testing, but he stated that there was no difference in the workload from the first shift to the second shift. Landahl Deposition at 11; R.R. at 181a.
Employer also presented the deposition testimony of Douglas A. Chen, M.D. (Dr. Chen), a board-certified otolaryngologist with an added certificate of qualification in otology and neurotology. Deposition of Douglas A. Chen, M.D., July 18, 2012, (Dr. Chen Deposition) at 3; R.R. at 199a. Dr. Chen evaluated Claimant on March 7, 2012, and that his examination of the Claimant's ear drum and ear canal was normal. Dr. Chen Deposition at 9; R.R. at 205a. Audiometric testing was performed on Claimant on March 7, 2012, which revealed bilateral high frequency hearing loss and sensorineural hearing loss with a high frequency exceeding forty dBA. Dr. Chen Deposition at 10; R.R. at 206a. Claimant's testing reflected an asymmetry at the left side, most likely a result of Claimant's right-handed rifle use. Dr. Chen Deposition at 12; R.R. at 208a. Claimant's hearing impairment was calculated as a binaural impairment of fifty-five percent. Dr. Chen Deposition at 13; R.R. at 209a. Dr. Chen opined that a substantial portion of Claimant's hearing loss was not related to occupationally hazardous noise levels. Dr. Chen Deposition at 18; R.R. at 214a. He explained that Claimant's hearing loss is greater than seventy-five dBA, which was not consistent with occupational noise as the sole cause of the hearing loss because it was commonly accepted that occupationally hazardous noise levels do not produce frequencies in excess of seventy-five dBA. Dr. Chen Deposition at 19; R.R. at 215a.
The WCJ granted the Claim Petition on November 30, 2012. The WCJ made the following Findings of Fact:
11. The testimony of the Claimant is credible with regard to his job duties, working and noise exposure experiences. He did not appear to be exaggerating any part of his testimony. Much of his testimony was supported by other sources.
12. The testimony of Dennis S. Gorscak is found to be generally credible with regard to the dosimetry testing he performed, but unpersuasive in the conclusions he drew. Based upon that dosimetry testing it is apparent to this Judge that the Claimant was exposed to noise levels in excess of 90 decibels. It further appears that the testing provided in this litigation would not be indicative of the maximum levels of noise to which the Claimant was exposed over his years of employment as modifications had been made throughout the years to lessen the impact of the noise on the workers.
13. The testimony of Thomas Landahl is generally credible regarding the Claimant's job duties and noise exposure with the employer. His testimony was similar to the testimony provided by the Claimant.
14. The testimony of Dr. Froman is found to be more credible than that of Dr. Chen. Initially, it should be noted that both doctors agree that the Claimant's binaural hearing loss in [sic] 55%. Dr. Froman reviewed a complete history of the Claimant's noise exposure both in and away from work and he conducted a thorough examination. He opined that the Claimant's hearing loss was related to his hazardous noise exposure at Fisher &
Ludlow [Employer]. He clearly explained the reasons for his opinions.WCJ's Decision, November 30, 2012, Finding of Fact (F.F.) No. 11-15 at 9-11.
15. Although Dr. Chen conducted an equally thorough examination, he appeared to base his conclusions on a commonly accepted belief that a substantial portion of occupationally induced hearing loss occurs during the first 10 to 15 years of exposure and then tapers off thereafter. Since, according to Dr. Chen, the Claimant did not meet this commonly accepted standard, Dr. Chen opined that 'something else' is going on with this gentleman other than just noise. He did not explain what this 'something else' might be. He did allow that some small portion of the Claimant's hearing loss could be attributed to hazardous noise. Both Dr. Chen and Dr. Froman took time and effort to explain the qualifications of their associates who performed the audiology testing that each relied upon. Dr. Chen's willingness to then rely so heavily on and base his conclusions on unqualified audiograms dating back to 1998 when he has no information as to who conducted the tests or in what conditions the tests were conducted renders his opinions unpersuasive and lacking in credibility.
Employer appealed to the Board which affirmed.
Employer contends that the Board erred when it affirmed the WCJ's Opinion that Employer failed to meet its burden of proving that the Claimant was not exposed to hazardous occupational noise in the course and scope of his employment with Employer and that the Board erred when it affirmed the WCJ's grant of the claim petition where the reasons for her rejection of Dr. Chen's testimony were unsupported by substantial evidence.
This Court's review is limited to a determination of whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, or whether constitutional rights were violated. Vinglinsky v. Workmen's Compensation Appeal Board (Penn Installation), 589 A.2d 291 (Pa. Cmwlth. 1991).
Section 306(c)(8) of the Workers' Compensation Act (Act), 77 P.S. § 513, sets forth the requirements for establishing a claim for benefits for work-related hearing loss. The claimant has the burden of proof to establish that he is suffering from a permanent hearing loss of ten percent or greater. The employer may assert the affirmative defense that the claimant's exposure to such noise was not hazardous or long-term. 77 P.S. § 513. In order to prove its affirmative defense, employer must establish that the claimant was not exposed to sound levels equal to or in excess of ninety dBA during the alleged period of exposure to long-term hazardous noise or that such exposure did not exceed the permitted daily exposure for three days a week for forty weeks in any one year for which exposure to long-term hazardous exposure is claimed. Joy Mining Mach. v. Workers' Compensation Appeal Board (Noggle), 805 A.2d 1279, 1282 (Pa. Cmwlth. 2002).
Act of June 2, 1915, P.L. 736, as amended.
It is undisputed that Claimant suffers from a permanent bilateral hearing loss greater than ten percent. However, Employer contends that Claimant's work exposure was not hazardous. Employer explains that Gorscak's testimony and the testing results were the only evidence presented concerning the noise levels Claimant was exposed to at work. Gorscak provided testimony stating that while a noise level in excess of ninety dBA was picked up during the dosimetry testing, Claimant still may not even have been exposed to noise levels greater than ninety dBA at some point during the day, which is permissible. R.R. at 133a-136a. Employer contends that because the dosimetry results did not reflect elevated noise levels, Claimant was not exposed to hazardous noise in his work environment. R.R. at 133a-136a.
Specifically, Employer contends that it was irrelevant that the WCJ found that Claimant was exposed to levels higher than ninety dBA for an unstated period of time because Claimant was allowed to be exposed to levels up to ninety dBA for an entire eight hour work day. Employer also believed that the WCJ's opinion that the testing was not indicative of real life and was less than a full shift was unfounded because there was no evidence that Claimant was ever exposed to greater noise levels or that Claimant always worked more than eight hours in one day. Finally, Employer argues that even the Board agreed that the WCJ's opinion that testing was stopped early in order to avoid going over the decibel limit was unfounded and irrelevant.
However, the Claimant argues that Gorscak admitted that if he was to test another employee on a different day, he may obtain different results. For instance, in Joy Mining Machinery Co. v. Workers' Compensation Appeal Board (Zerres), 8 A.3d 444 (Pa. Cmwlth. 2010), the employer's expert tested five employees each month for noise level exposure. This level of testing was far more advanced than Gorscak's one time test. The defendant's expert in Zerres testified that noise levels recorded would depend on production, materials, work performed, and the area of the plant. On the days not tested, the expert could not conclude what the noise levels were. Zerres, 8 A.3d at 446-447.
Gorscak claimed that his dosimeter results were accurate in that they included a full shift minus employee breaks, were measured when cutting some of the hardest steel, and obtained when all of the evidence reflected concluded that noise levels were below ninety dBA. However, while Employer's expert may have believed his results were an accurate interpretation of the noise levels present at the plant, a one-day sample is not conclusive as an affirmative defense. This Court in General Electric Co. v. Workers' Compensation Appeal Board (Bower), 734 A.2d 492, (Pa. Cmwlth. 1999) stated that General Electric Co. (GE) attempted to prove as an affirmative defense that Joseph Bower (Bower) was not exposed to noise levels in excess of 90 dB by presenting Bower's personal noise exposure test showing that, for one day, Bower was exposed to only 86 dB of noise. This Court held that GE failed to prove the affirmative defense because GE tested Bower's exposure for only one day and because GE's witness did not testify that the exposure was typical and would be the same on any other day.
Applying that reasoning, the WCJ correctly determined that one day of dosimetry testing at the plant was not enough to prove that Claimant was not exposed to hazardous noise levels.
Next, Employer contends that the WCJ's reasons for rejecting Dr. Chen's testimony were unsupported by substantial evidence.
Claimant contends that as long as the WCJ explained her reasons for crediting Dr. Froman and discrediting Dr. Chen, and those reasons were supported by substantial, competent evidence, the decision was well-reasoned and should not be disturbed.
The WCJ explained every aspect of Dr. Froman's testimony, and took into account each opinion given. The WCJ also specifically listed the reasons for rejecting Dr. Chen's testimony, particularly because Dr. Chen relied on unqualified audiograms to make his opinions. The WCJ's opinion was an exercise of judicial discretion that should not be disturbed.
Employer argues that the WCJ erred because she considered Dr. Chen's opinion that "something else" may have caused Claimant's hearing loss, as Dr. Chen not knowing the cause. However, Employer noted that Dr. Chen testified that Claimant's hunting activities could have impacted his hearing. Employer also noted that Dr. Chen did not rely on "commonly accepted belief[s]" or "unqualified audiograms," but rather used national experts from across the country and cited to a consensus issued by the American College of Occupational Medicine. R.R. at 212a-214a.
Employer believes that Dr. Chen explained his opinions about Claimant's hearing loss at length, and therefore his opinions were supported by substantial evidence, and should have been found credible.
Claimant argues that a reasoned decision does not permit challenges to a WCJ's reasons for credibility determinations. The WCJ is the ultimate finder of fact and her findings may not be disturbed if supported by substantial evidence. Harrell v. Workers' Compensation Appeal Board (Circle HVAC), 616 A.2d 1051 (Pa. Cmwlth. 1992). Substantial evidence is relevant evidence a reasonable mind might accept as adequate to support a conclusion. Bethenergy Mines, Inc. v. Workmen's Compensation Appeal Board (Skirpan), 612 A.2d 434 (Pa. 1992). If the determination of the WCJ was not made arbitrarily, the credibility determinations must be upheld.
To the extent Employer argues that the WCJ failed to issue a reasoned decision because she failed to provide sufficient explanations for her credibility determinations, this Court does not agree.
Section 422(a) of the Act, 77 P.S. § 834, provides:
Neither the board nor any of its members nor any workers' compensation judge shall be bound by the common law or statutory rules of evidence in conducting any hearing or investigation, but all findings of fact shall be based upon sufficient competent evidence to justify same. All parties to an adjudicatory proceeding are entitled to a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole which clearly and concisely states and explains the rationale for the decisions so that all can determine why and how a particular results was reached. The workers' compensation judge shall specify the evidence upon which the workers' compensation judge relies and state the reasons for accepting it in conformity with this section. When faced with conflicting evidence, the workers' compensation judge must adequately explain the reasons for rejecting or discrediting competent evidence. Uncontroverted evidence may not be rejected for no reason or for an irrational reason; the workers' compensation judge must identify that evidence and explain adequately the reasons for its rejection. The adjudication shall provide the basis for meaningful appellate review. (Emphasis added.)
It is irrelevant whether the record contains evidence to support findings other than those made by the WCJ; the critical inquiry is whether there is evidence to support the findings actually made. We review the entire record to determine if it contains evidence a reasonable mind might find sufficient to support the WCJ's findings. If the record contains such evidence, the findings must be upheld even though the record contains conflicting evidence.Hershgordon v. Workers' Compensation Appeal Board (Pep Boys), 14 A.3d 922, 928-929 (Pa. Cmwlth. 2011).
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 25th day of September, 2014, the Order of the Workers' Compensation Appeal Board in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge
In Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 76 828 A.2d 1043, 1053 (Pa. 2003), our Pennsylvania Supreme Court noted that "a decision is 'reasoned' for the purpose of section 422(a) if it allows for adequate review by the WCAB without further elucidation and if it allows for adequate review by the appellate courts under applicable reviewable standards...[a] reasoned decision is no more, and no less." (Emphasis added.)