Opinion
No. 1321 C.D. 2011
12-28-2011
Allen Goss, Petitioner v. Workers' Compensation Appeal Board (Commonwealth of Pennsylvania, Department of General Services), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JOHNNY J. BUTLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BUTLER
Allen Goss (Claimant) petitions for review of the June 22, 2011 order of the Workers' Compensation Appeal Board (Board) affirming the decision of the Workers' Compensation Judge (WCJ) denying him workers' compensation benefits for hearing loss. The issue before this Court is whether the Board's findings of fact were supported by substantial, competent evidence. Based upon the following, we affirm the Board's order.
Claimant worked full time as a press operator in the printing division of the Commonwealth of Pennsylvania's Department of General Services (Employer) from 1980 until he retired due to congestive heart failure in February of 2007. On September 2, 2008, Claimant filed a claim petition seeking workers' compensation benefits pursuant to Section 306(c)(8)(i) of the Workers' Compensation Act (Act), for hearing loss in both ears (binaural) due to long-term exposure to hazardous occupational noise while employed by Employer. Employer timely denied Claimant's allegations, and preserved its defense that Claimant was not exposed to long-term hazardous occupational noise. Hearings were held before the WCJ on September 30, 2008, October 20, 2009 and February 24, 2010. Claimant's November 24, 2008 deposition testimony was, by agreement of the parties, submitted as his hearing testimony. On July 19, 2010, the WCJ denied and dismissed Claimant's claim petition. Claimant appealed to the Board. On June 22, 2011, the Board affirmed the decision of the WCJ. Claimant appealed to this Court.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 513(8)(i).
This Court's review is limited to determining whether an error of law was committed, whether the findings of fact are supported by substantial evidence and whether there was a violation of constitutional rights. Sysco Food Servs. of Phila. v. Workers' Comp. Appeal Bd. (Sebastiano), 940 A.2d 1270 (Pa. Cmwlth. 2008).
On appeal, Claimant argues that the Board's findings of fact were not supported by substantial evidence, and that the Board specifically erred by accepting and relying upon incompetent evidence. Claimant specifically avers that the WCJ improperly accepted the December 4, 2008 report from Employer as to the decibel reading in Employer's print shop because it was taken 22 months after Claimant retired, and improperly accepted the medical opinion of Robert T. Sataloff, M.D., D.M.A., F.A.C.S. (Dr. Sataloff) because it relied upon that sound reading.
Claimant also argues that the WCJ improperly allowed a Mr. Bao Nguyen's testimony as expert testimony relative to the occupational noise levels at Employer's facility, because he was not properly admitted or recognized as an expert. We disagree.
The law is clear that "[i]n a claim petition, the burden of establishing a right to compensation and of proving all necessary elements to support an award rests with the claimant." Coyne v. Workers' Comp. Appeal Bd. (Villanova Univ.), 942 A.2d 939, 945 (Pa. Cmwlth. 2008). This action is based upon a claim petition filed by Claimant for binaural hearing loss. This Court recently stated:
The requirements for establishing a right to benefits for a work-related hearing loss are set forth in Section 306(c)(8) of the [Act] . . . 77 P.S. § 513(8). The Act requires the claim to be '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.' Section 306(c)(8)(viii) of the Act, 77 P.S. § 513(8)(viii). The hearing loss must be established by an audiogram which 'conform[s] to OSHA Occupational Noise Exposure Standards.' Section 306(c)(8)(iv) of the Act, 77 P.S. § 513(8)(iv). The hearing loss must be 'permanent' to be compensable. Section 306(c)(8)(i) of the Act, 77 P.S. § 513(8)(i). . . . Case law has established that the Claimant must present medical evidence to meet his burden of proving that his permanent hearing loss of more than 10 percent was caused by exposure to occupational noise.City of Phila. v. Workers' Comp. Appeal Bd. (Seaman), 8 A.3d 1004, 1007 (Pa. Cmwlth. 2010). "Whether the claimant was exposed to hazardous occupational noise is a question of fact to be found by the WCJ." Newcomer Prods. v. Workers' Comp. Appeal Bd. (Irvin), 826 A.2d 69, 73 n.12 (Pa. Cmwlth. 2003).
In order to determine whether the WCJ and the Board properly found that Claimant in this case failed to meet his burden, we must look at whether there was substantial evidence to support the WCJ's findings. Verizon Pa., Inc. v. Workers' Comp. Appeal Bd. (Guyders), 999 A.2d 665 (Pa. Cmwlth. 2010). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Gibson v. Workers' Comp. Appeal Bd. (Armco Stainless & Alloy Prods.), 580 Pa. 470, 479, 861 A.2d 938, 943 (2004). Substantial evidence must be both competent (i.e., properly admitted) and sufficient (i.e., able to form the basis of a finding). Gibson. Finally, in an appeal to this Court from a decision of the Board, all evidence of record must be construed in favor of the party who was successful before the factfinder. Cerasaro v. Workers' Comp. Appeal Bd. (Pocono Mountain Med., Ltd.), 717 A.2d 1111 (Pa. Cmwlth. 1998).
Construing the evidence of record here in Employer's favor, we conclude that there was substantial evidence to support the WCJ's findings. During his deposition, Claimant testified that he worked in the print shop 7½ hours per day, five days per week since 1980. There was a constant metallic gear, motor-driven machine noise due to the operation of nine to sixteen printing machines on the floor, which produced up to a few hundred thousand copies per day. He testified that, in the mid-1980's, he fell while working for Employer and struck and cut the back of his head, requiring stitches. In the early to mid-1990's, he began gradually experiencing tinnitus (i.e., ringing in his ears) which worsened gradually over the years. His hearing loss became evident gradually, having first been noticed by Claimant's wife when he had to turn the television volume up, and he had difficulty following conversations in crowded places and on the telephone. By the late 1990's, he visited an audiologist at Boscov's and obtained hearing aids, which he wears consistently. The audiologist did not discuss with him what the cause of his hearing loss might have been. He has worn two hearing aids in nine years.
Claimant testified that before working for Employer, from 1967 through 1969, Claimant worked for Olivetti-Underwood, inspecting typewriters in an environment with a noise level of medium intensity. Immediately before working for Employer, Claimant worked in the print shop at the Commonwealth's Department of Transportation (DOT) for eight years. He stated that the noise level in the DOT print shop was lower, because the room was smaller, the walls were insulated, and the floors were carpeted.
According to the medical reports, in the interim years of 1969 through 1971, Claimant worked for McFarland Company, a printing company, but his job involved the use of a camera, so he had no exposure to loud noise during that time.
Claimant does not know of any studies conducted to assess the noise level in Employer's print shop, although all of the employees were provided hearing checks, perhaps in the late 1980s or early 1990s. He underwent the testing because he knew that something was not quite right with his hearing at that time, however, he did not receive the result of that hearing test. He also stated that, on only one occasion, Employer gave him rubber ear plugs to wear for work. Also, in 2002 or 2003, following a discussion about the loud droning noise he experienced at work, a friend gave him disposable foam ear plugs. He never complained to his supervisor, however, about the noise level in Employer's print shop. Claimant further testified that his mother needed a hearing aid in the last four or five years of her life, he rode a motorcycle years ago, he has owned and shot a black powder muzzle loader since 2003, and he deer hunts with rifles annually without wearing ear protection.
According to medical records submitted by Claimant, he saw Allan Gold, M.D., F.A.C.S. on April 28, 2008 for an evaluation which included an audiogram. According to Dr. Gold's May 6, 2008 report, Claimant showed a bilateral, moderate to severe sensorineural hearing loss which, according to the American Medical Associations' Guidelines to the Evaluation of Permanent Impairment, represents a 27% hearing loss. Dr. Gold's report reflects, based upon Claimant's history and his examination, "within a reasonable degree of medical certainty, that [Claimant] has sustained a noise-induced, sensorineural hearing loss as the result of exposure to loud noise in the course of his employment with the Commonwealth of Pennsylvania, in both the Transportation and General Services Departments." Reproduced Record (R.R.) at 8a.
At the February 24, 2010 hearing, Employer offered the testimony of Mr. Nguyen, who worked as a press operator for Employer within ten feet of Claimant from 1996 through 2002. From 2002 through 2007, he worked approximately 20 to 30 feet from Claimant. From approximately 2003 or 2004 through the time that Claimant left work due to heart trouble, Mr. Nguyen observed Claimant wearing AM/FM stereo headphones while Claimant worked in the print shop. He did not, however, know if Claimant had the radio on, and he never heard noise coming out of them. Mr. Nguyen claimed that while working in the print shop, he was able to communicate with Claimant in a normal tone of voice, without raising his voice. He testified that the level of environmental noise in the print shop did not change at all between 1996 and February of 2007.
Claimant underwent an independent medical evaluation with Dr. Sataloff on January 14, 2009. According to Dr. Sataloff's report, Claimant reported using foam plugs regularly while at work. An audiogram performed by Dr. Sataloff "revealed puretone averages that do not match with his speech reception threshold scores suggestive of a possible component of non-organic etiology to his hearing loss." R.R. at 6ai. However, Dr. Sataloff deferred his opinion relative to Claimant's hearing level "until he has undergone additional testing (brainstem evoked response audiogram for thresholds, otoacoustic emissions and other studies) to help determine a valid threshold." Id. He also stated:
Prior to rendering an opinion regarding causation, it would also be helpful to have time weighted averages, or at least sound pressure level measurements, for his job description while at the Pennsylvania Department of General Services. In addition, if audiograms are available from the time of his hiring . . . through the present, it would be helpful to have copies of them to review.Id.
Dr. Sataloff issued a supplemental report dated March 26, 2009, following his review of records provided to him by Employer related to Claimant's heart treatment and records from an allergist, and a decibel (dB) reading conducted at Employer's print shop on December 4, 2008, which revealed no readings above 77dB. Despite the fact that Claimant had not yet undergone the additional testing Dr. Sataloff had previously recommended, Dr. Sataloff stated that he had sufficient documentation "to state with medical certainty that [Claimant's] hearing loss was not caused by occupational noise exposure at the Pennsylvania Department of General Services, Printing Division." R.R. at 6aii.
Based upon a review of records provided to him by Employer related to Claimant's September 2008 hospitalization, Dr. Sataloff, issued another supplemental report dated October 26, 2009, in which he stated that those records for treatment of lower back pain did not have any consequence in his determination of whether Claimant's hearing loss was due to his occupation.
The WCJ rejected the opinions of Dr. Gold because his findings were based upon a history the WCJ deemed inconsistent with Claimant's testimony, and ignored that ringing in Claimant's ears followed his 1980 fall. The WCJ accepted Dr. Sataloff's opinion on the basis that it was consistent with the Claimant's testimony, and it took into account Nguyen's uncontradicted testimony that Claimant used headphones during work. The WCJ also rejected Claimant's testimony that contradicted that of Mr. Nguyen and Dr. Sataloff, due to the fact that Dr. Sataloff noted that Claimant's testing demonstrated a non-organic reason for his hearing loss. The WCJ concluded that Claimant failed to meet his burden of proving that his employment within the three years prior to his last day of work with Employer resulted in hearing impairment. The Board found no error in the WCJ's conclusions.
It is well established that "[t]he WCJ is the ultimate factfinder and has exclusive province over questions of credibility and evidentiary weight." Univ. of Pa. v. Workers' Comp. Appeal Bd. (Hicks), 16 A.3d 1225, 1230 n.8 (Pa. Cmwlth. 2011). "The WCJ, therefore, is free to accept or reject, in whole or in part, the testimony of any witness, including medical witnesses." Griffiths v. Workers' Comp. Appeal Bd. (Red Lobster), 760 A.2d 72, 76 (Pa. Cmwlth. 2000). In addition, "Section 422(a) [of the Act] does not permit a party to challenge or second-guess the WCJ's reasons for credibility determinations. Unless made arbitrarily or capriciously, a WCJ's credibility determinations will be upheld on appeal." Dorsey v. Workers' Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191, 195 (Pa. Cmwlth. 2006) (citation omitted).
77 P.S. § 834. --------
Claimant's charges of error by the WCJ are nothing more than disagreements with the WCJ's findings and credibility determinations. There is no dispute that the sound reading was taken in December of 2008, almost two years after Claimant retired. However, Claimant did not undertake to notify Employer that his hearing loss was due to his employment until September of 2008, and there was no evidence that Employer had a reason to suspect Claimant suffered a noise-related injury. When Employer was made aware of the need for such a reading, it produced a reading within 12 weeks. Claimant produced no evidence that the December 2008 reading was in any way flawed, or irrelevant to this case. Moreover, there is nothing in the record on which Claimant could base his claim that Mr. Nguyen's testimony was expert testimony. He was clearly a lay witness who testified as to his observations that he was able to communicate with Claimant at work in a normal tone of voice, that the noise in Employer's print shop was consistent over the years, and that Claimant wore headphones in the print shop while he worked.
Claimant's disagreement with the WCJ's findings and credibility determinations are not grounds upon which this Court may reweigh evidence or substitute its judgment. In fact,
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.Lahr Mech. v. Workers' Comp. Appeal Bd. (Floyd), 933 A.2d 1095, 1101 (Pa. Cmwlth. 2007) (citations and quotation marks omitted).
We conclude from our review of the record that there was sufficient competent evidence to support the findings made by the WCJ. Thus, we find that the Board did not err by affirming the decision of the WCJ. Accordingly, the Board's June 22, 2011 order is affirmed.
/s/_________
JOHNNY J. BUTLER, Judge
ORDER
AND NOW, this 28th day of December, 2011, the June 22, 2011 order of the Workers' Compensation Appeal Board is affirmed.
/s/_________
JOHNNY J. BUTLER, Judge