Opinion
No. 544 C.D. 2014
01-08-2015
Francis A. Lally, Petitioner v. Workers' Compensation Appeal Board (Commonwealth of Pennsylvania, Department of Transportation), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Francis A. Lally (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed an order of a workers' compensation judge (WCJ) denying Claimant's claim petition alleging a work-related hearing loss. Claimant contends his evidence established he sustained a permanent binaural hearing loss of greater than 10% as a result of exposure to hazardous occupational noise levels for more than 25 years during his employment with the Commonwealth of Pennsylvania, Department of Transportation (Employer). In addition, Claimant argues the WCJ applied an incorrect standard in evaluating the medical testimony where Employer's medical expert failed to testify within a reasonable degree of medical certainty as to what pathology caused Claimant's hearing loss. For the reasons that follow, we affirm.
I. Background
A. Evidence
Claimant began working for Employer in July 1984 as an equipment operator. In 1986, Claimant began working on one of Employer's line painting crews. During a typical year, Claimant would paint road lines from April into October or November. In the off-season, Claimant performed maintenance duties in the warehouse. He would also plow snow when necessary.
In April 2010, Claimant filed a claim petition alleging a permanent hearing loss caused by constant exposure to loud machines and road noise. Although Claimant continued to work, he sought specific loss benefits for hearing impairment under Section 306(c)(8) of the Workers' Compensation Act (Act). Employer filed an answer denying Claimant's material allegations. Employer also asserted the defenses of statute of limitations and lack of notice.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §513(8).
Claimant testified regarding his exposure to loud noises while painting, snowplowing and performing maintenance. He frequently encountered noise from air compressors in the paint truck and machines in the maintenance garage. Claimant also obtained documents from a traffic control specialist for Employer, Lonnie Lloyd (Specialist Lloyd), showing high decibel readings for his paint truck (District 5.0, Truck #9). See Notes of Testimony (N.T.), 12/13/10, Employee's Ex. 02-03.
In addition, Claimant presented the deposition testimony of Dr. Joseph V. Puzzi, M.D. (Claimant's Physician), a board certified otolaryngologist. Claimant began treatment with his Physician in November 1999 for an upper respiratory infection and labyrinthitis. Claimant's Physician began treating Claimant for hearing loss in August 2006. In a September 2010 report, he calculated Claimant's binaural hearing loss at 11.6%. See Dep. of Dr. Joseph V. Puzzi M.D. (Puzzi Dep.), 1/19/11, at 17; Reproduced Record (R.R.) at 177; Puzzi Dep., Ex. 3; R.R. at 222. Claimant's Physician attributed Claimant's hearing loss to long-term exposure to loud noises while working on Employer's painting crew. Id.
Claimant also submitted the deposition of Specialist Lloyd, who took acoustical readings of Employer's paint trucks for the period of May 2008 through June 2010. Lloyd took sound readings two to three inches from the paint trucks.
However, Specialist Lloyd testified he never received any training in acoustical testing. See Dep. of Lonnie Lloyd (Lloyd Dep.), 4/18/11, at 16; R.R. at 417. On cross-examination, Lloyd testified he received no training or certification specific to industrial noise testing. Lloyd Dep. at 48; R.R. at 449. Lloyd further admitted he did not know if his machine was ever calibrated. Lloyd Dep. at 49; R.R. at 450. Lloyd also admitted he never documented the distance from the source he tested. Id.
Employer presented the testimony of an assistant county manager, Thomas William Roble (Assistant County Manager). He formerly held the position of district traffic operations manager, which covered Claimant's line painting crew, "from maybe 2004 to probably 2009." N.T., 12/13/10 at 79; R.R. at 115. Assistant County Manager testified he performed Claimant's line painting duties for one day. N.T. at 79-80; R.R. at 116-17. He did not find the operation to be overly noisy; however, there was some noise. To communicate, an individual must speak in a louder tone. N.T. at 80-81; R.R. at 117-18. Assistant County Manager further testified that neither the open maintenance warehouse nor the snowplows were overly noisy places to work. N.T. at 81-83; R.R. at 118-20.
Employer's district safety and workers' compensation coordinator, Dennis McArdle (Safety Coordinator), also testified. Safety Coordinator stated that Specialist Lloyd's sound tests were not part of any testing initiated by Employer's safety division. N.T. at 90-92; R.R. at 127-29. Safety Coordinator explained that if Employer felt testing was necessary, it would hire an independent third party, probably an industrial hygienist, to perform a certified test. N.T. at 91; R.R. at 128. This would require a certified individual with the right equipment and training. Id. It would not be done by Employer itself. Id.
Safety Coordinator further testified Employer provided headset equipment that served the purposes of both communication and hearing protection. N.T. at 97-98; R.R. at 134-35. The headset is used by several other agencies, aircraft manufacturers and fire departments. N.T at 98; R.R. at 135. Employer also makes earplugs available to its employees.
In addition, Employer submitted the deposition testimony of Dr. Robert T. Sataloff, M.D. (IME Physician), a board certified otolaryngologist who performed an independent medical examination (IME) of Claimant on August 31, 2010. IME Physician took Claimant's history, obtained an audiogram, and performed an ear, nose and throat examination. Based on his examination and review of Claimant's records, IME Physician testified Claimant sustained a significant hearing loss between 2006 and 2011. Dep. of Robert T. Sataloff, M.D. (Sataloff Dep.), 3/3/11, at 22; R.R. at 237. However, IME Physician opined Claimant's hearing loss could not be attributed to occupational noise exposure. Id. IME Physician testified that when people are exposed to long-term hazardous noise, they sustain the maximum hearing loss that they will sustain within the first 10 to 15 years. Sataloff Dep. at 23; R.R. at 237.
IME Physician further testified there was inadequate evidence of Claimant's exposure over time to sufficient noise to cause his hearing loss. Sataloff Dep. at 26-29; R.R. at 238. People need to be exposed over many hours per day, and many weeks per year, to sustain injury from continuous noise exposure. Sataloff Dep. at 26; R.R. at 238.
B. WCJ's Decision
In his decision, the WCJ found that levels of hazardous occupational noise existed in Claimant's workplace. WCJ's Op., 4/25/12, Finding of Fact (F.F.) No. 83. However, the WCJ determined Employer established, by a preponderance of the evidence, that Claimant did not suffer long-term exposure to hazardous occupational noise. F.F. No. 84. To that end, the WCJ found IME Physician's testimony credible and persuasive. F.F. No. 85. The WCJ also found IME Physician's opinions more credible and persuasive than Claimant's Physician's opinions. Id. In so doing, the WCJ found IME Physician more qualified and experienced than Claimant's Physician with respect to the causes and measurement of occupational hearing loss. Id.
As the WCJ observed, Section 306(c)(8) of the Act provides for specific loss benefits for binaural hearing loss. Section 306(c)(8) states, in pertinent part (with emphasis added):
For all disability resulting from permanent injuries of the following classes, the compensation shall be exclusively as follows:
* * * *
(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.
* * * *
(iii) Notwithstanding the provisions of subclauses (i) and (ii) of this clause, if there is a level of binaural hearing impairment
as calculated under the Impairment Guides which is equal to or less than ten percentum, no benefits shall be payable.77 P.S. §513(8)(i), (iii), (ix), (x) (footnote added).
* * * *
(ix) The date of injury for occupational hearing loss under subclause (i) of this clause shall be the earlier of the date on which the claim is filed or the last date of long-term exposure to hazardous occupational noise while in the employ of the employer against whom the claim is filed.
(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.
The "Impairment Guides" referred to in Section 306(c)(8) of the Act are the American Medical Association's Guides to the Evaluation of Permanent Impairment (4th ed. 1995).
"The term 'hazardous occupational noise,' as used in [the 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)." Section 105.4 of the Act, 77 P.S. §25.4 (footnote added). By incorporating OSHA's occupational noise exposure standards, Section 105.4 permits exposure up to 90 decibels for an eight-hour day before such exposure is deemed hazardous. Joy Mining Mach. Co. v. Workers' Comp. Appeal Bd. (Zerres), 8 A.3d 444 (Pa. Cmwlth. 2010). Also, "[t]he term 'long-term exposure,' as used in [the Act], means exposure to noise exceeding the permissible daily exposure for at least three days each week for forty weeks of one year." Section 105.6 of the Act, 77 P.S. §25.6.
"OSHA" refers to the U.S. Department of Labor's Occupational Safety and Health Administration.
Added by the Act of February 23, 1995, P.L. 1.
Added by the Act of February 23, 1995, P.L. 1.
Here, the WCJ accepted as fact IME Physician's opinion that Claimant's hearing loss could not possibly be related to his employment because he would have suffered a hearing loss within the first 10 to 15 years of his initial exposure to occupational noise. F.F. No. 64. More specifically, any occupational hearing loss related to Claimant's line painting job should have occurred in 2001, and probably by 1999. Id.
The WCJ also credited IME Physician's opinion that the road noise and truck noise in Claimant's work environment would not ordinarily be loud enough to cause hearing loss. F.F. No. 64; Sataloff Dep. at 35-36; R.R. at 240. This includes noise from a snow plow. Id. In particular, beginning in 2003, Employer began using new trucks with an enclosure that insulated Claimant from the air compressor. F.F. No. 64; Sataloff Dep. at 24; R.R. at 237.
In sum, IME Physician opined Claimant's hearing loss was not causally related to his work on a line painting crew. Claimant's work experience with Employer does not provide a history of enough occupational noise to explain the cause for his hearing loss between 2006 and 2010, and especially his substantial hearing loss between 2009 and 2010. F.F. No. 64; Sataloff Dep. at 26-27, 34-37; R.R. at 238, 240. As noted above, Claimant's hearing loss should have occurred by 2001, within 10 to 15 years of working on the painting crew. F.F. No. 64; Sataloff Dep. at 37; R.R. at 240. IME Physician further opined that if the noise does not get any louder and there is a progressive hearing loss after that point, it is related to another cause. Id.
Ultimately, the WCJ determined Claimant failed to satisfy his burden of proof that any hearing loss he suffered from his alleged April 2010 injury date was related to his employment. Conclusion of Law (C.L.) No. 8. The WCJ further determined the "evidence of record does not support that Claimant was exposed to hazardous occupational noise associated with his employment." C.L. No. 9. In accord with his decision, the WCJ issued an order denying and dismissing Claimant's claim petition.
The WCJ also determined Claimant failed to provide timely notice under Section 311 of the Act, 77 P.S. §631, by failing to provide Employer with notice of injury within 120 days of Claimant's Physician's September 2009 testing and opinion that Claimant's hearing loss was causally related to his exposure at work to hazardous occupational noise. See C.L. Nos. 4, 10. To that end, the WCJ noted Claimant filed his claim petition in April 2010. Id.
On appeal, the Board affirmed, noting the WCJ accepted IME Physician's testimony as more credible and persuasive than that of Claimant's Physician. Without Claimant's Physician's medical testimony as to causation, Claimant could not establish a work-related permanent binaural hearing loss of more than 10%. City of Phila. v. Workers' Comp. Appeal Bd. (Seaman), 8 A.3d 1004 (Pa. Cmwlth. 2010). Claimant petitions for review.
This Court's 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. 2 Pa. C.S. §704; Dep't of Transp. v. Workers' Comp. Appeal Bd. (Clippinger), 38 A.3d 1037 (Pa. Cmwlth. 2011).
II. Issues
Claimant contends the evidence presented established that he suffered a permanent hearing loss as a result of exposure to hazardous occupational noise levels for more than 25 years with Employer. In addition, Claimant argues the WCJ applied an incorrect standard in evaluating the expert testimony based solely on qualifications where both Claimant's Physician and IME Physician were board certified in hearing loss and audiology. Claimant further asserts IME Physician's testimony was inconsistent and equivocal.
Conversely, Employer contends Claimant's appeal is rendered moot in light of Claimant's failure to provide Employer with Section 311 notice of injury within 120 days of being informed by Claimant's Physician of a permanent hearing loss causally related to his exposure to hazardous occupational noise.
III. Discussion
A. Notice of Injury
We first address Employer's contention that Claimant's failure to provide timely notice of injury under Section 311 of the Act, 77 P.S. §631, rendered his appeal moot. Employer asserts the WCJ properly determined Claimant failed to provide Employer with notice of injury within 120 days of being informed by Claimant's Physician in September 2009 that he suffered an 11.6% binaural hearing loss as a result of his exposure to hazardous occupational noise. See C.L. Nos. 4, 10.
We disagree. Here, Claimant seeks specific loss benefits for permanent hearing loss caused by long-term exposure to hazardous occupational noise. Section 306(c)(8)(ix) of the Act, 77 P.S. §513(8)(ix), provides that the date of injury for occupational hearing loss shall be the earlier of the date on which the claim petition is filed or the last date of long-term exposure while working for the employer against whom the claim is filed. Crompton Corp. v. Workers' Comp. Appeal Bd. (King), 954 A.2d 751 (Pa. Cmwlth. 2008). Employees who continue to be exposed to hazardous occupational noise are not obligated to give notice prior to filing a claim petition. See Caloric Corp. v. Workers' Comp. Appeal Bd. (Shoemaker), 802 A.2d 32 (Pa. Cmwlth. 2002) (citing Socha v. Workers' Comp. Appeal Bd. (Bell Atlantic - Pa, Inc.), 783 A.2d 288 (Pa. 2001) (plurality opinion)).
Here, Claimant continued to work for Employer at the time he filed his claim petition. As such, he continued to be exposed to occupational noise after filing his claim petition. Therefore, Claimant's claim petition satisfied the notice requirements of Section 311 of the Act. Socha; Caloric Corp. Consequently, the WCJ erred in determining Claimant failed to comply with the notice requirements in Section 311 of the Act, 77 P.S. §631.
Employer asserts Claimant waived any challenge to the WCJ's notice determination by failing to appeal it. However, in his appeal to the Board, Claimant alleged the WCJ failed to consider the legal principle that repetitive exposure is cumulative. Arguably, this could refer to the notice requirement. Regardless, both the WCJ and the Board misinterpreted the notice requirement where a claimant continues to be exposed to occupational noise after filing a claim petition. Moreover, the WCJ's issued a comprehensive 32-page decision, including 89 findings of fact, addressing the merits of Claimant's hearing loss claim. In addition, both parties fully addressed the merits of Claimant's appeal in their briefs. Under these circumstances, we believe the interests of both justice and judicial economy are best served by addressing the merits of Claimant's appeal.
B. Merits of Hearing Loss Claim
Claimant first contends his evidence, including his Physician's medical testimony, demonstrated he sustained a binaural impairment of greater than 10% causally related to his long-term exposure to hazardous noise with Employer. Claimant asserts the WCJ should have found Specialist Lloyd's decibel readings and Claimant's own testimony sufficient to establish an excessively loud work environment.
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. In order to establish a prima facie compensable hearing loss, a claimant must present medical evidence showing his exposure at work to hazardous occupational noise caused a permanent binaural hearing impairment of more than 10%. Seaman. In other words, 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).
However, the burden is not on the claimant to establish long-term exposure to hazardous occupational noise. Flatley v. Workers' Comp. Appeal Bd. (Mallinckrodt Chem. Calsicat Div.), 803 A.2d 862 (Pa. Cmwlth. 2002). Rather, the burden shifts to the employer to establish, as an affirmative defense, that the claimant did not suffer either an exposure "to hazardous occupational noise or a long-term exposure to such noise ...." Section 306(c)(8)(x) of the Act, 77 P.S. §513(8)(x).
An employer must demonstrate that the claimant was not exposed to sound levels equal to or in excess of 90 decibels (dBA) during the period he or she claimed exposure to hazardous noise. See Gen. Elec. Co. v. Workers' Comp. Appeal Bd. (Bower), 734 A.2d 492 (Pa. Cmwlth. 1999). In cases where the claimant suffered an occupational exposure to noise levels in excess of 90 dBA, the employer must establish the claimant was not exposed for 40 weeks in any 12-month period within the three years (not calendar years) immediately preceding the date of injury. Bethlehem Steel Corp. v. Workers' Comp. Appeal Bd. (Zima), 777 A.2d 1245 (Pa. Cmwlth. 2001). --------
Here, Claimant asserts the WCJ disregarded his testimony of repeated exposure to loud noise during his 25 years with Employer. In addition, Specialist Lloyd's decibel readings, although not conducted pursuant to OSHA standards, could at least show an excessively loud work environment. Based on this evidence, Claimant argues the WCJ erred in failing to find Clamant did not meet his prima facie case, which would have shifted the burden to Employer to show Claimant's exposure to such noise was neither hazardous nor long-term. Flatley.
As fact-finder, the WCJ is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part. A & J Builders, Inc. v. Workers' Comp. Appeal Bd. (Verdi), 78 A.3d 1233 (Pa. Cmwlth. 2013). What is more, the WCJ's authority over questions of credibility, conflicting evidence and evidentiary weight is unquestioned. Id. On appeal, neither the Board nor a reviewing court may revisit a WCJ's credibility determinations. Furnari v. Workers' Comp. Appeal Bd. (Temple Inland), 90 A.3d 53 (Pa. Cmwlth. 2014). Further, it does not matter if there is evidence supporting findings other than 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 (Pa. Cmwlth. 2007).
Here, the WCJ, citing Claimant's testimony and Specialist Lloyd's decibel readings, found Claimant established that levels of hazardous occupational noise existed in Employer's workplace. F.F. No. 83. Therefore, the WCJ found Claimant established exposure to some level of hazardous occupational noise. Id.
However, the WCJ further found, "Claimant's exposure to hazardous occupational noise was not long-term." F.F. No. 84. In reaching this determination, the WCJ found Claimant's testimony less credible than that of Assistant County Manager regarding the levels of noise Claimant encountered while performing his various duties. Id. The WCJ also observed that Specialist Lloyd admitted that he did not test noise levels inside the insulated compartment of the trucks where Claimant worked or at the other locations where Claimant performed maintenance on the trucks. Id. In addition, the WCJ noted Claimant acknowledged his job duties varied in location and activity and even frequency. Id. Given these facts, the WCJ determined Employer "has proven by a preponderance of the evidence that Claimant was not exposed to hazardous occupational noise on a long term basis." Id.
More importantly, Claimant failed to establish a causal relationship between his exposure to occupational noise and his hearing impairment. To that end, the WCJ accepted the medical testimony and opinions of IME Physician as credible and persuasive. F.F. No. 85. In making this determination, the WCJ found IME Physician more qualified and experienced than Claimant's Physician with respect to the causes and measurement of occupational hearing loss. Id. As such, the WCJ stated:
Even if one were to assume [Employer] failed to meet its burden of proving that the Claimant was not exposed to long term hazardous noise, the medical opinion of [IME Physician], that the Claimant's increased hearing loss was unrelated to long term noise exposure, was found to be credible and persuasive and more persuasive than the opinion of [Claimant's Physician].
Id.
As discussed above, IME Physician opined Claimant's hearing loss was not causally related to his work activities for Employer. See F.F. No. 64. First and foremost, IME Physician testified that when people are exposed to long-term occupational noise, they sustain the maximum hearing loss within the first 10 to 15 years of exposure. F.F. No. 64; Sataloff Dep. at 22-23, 34-37; R.R. at 238, 240. Claimant began working on the line painting crew in 1986. However, by 1999, Claimant's hearing was normal in his left ear and very close to normal in his right ear. F.F. No. 63; Sataloff Dep. at 17-18; R.R. at 235-36. Using the Impairment Guides, Claimant's hearing impairment in 1999 fell well below 10%. F.F. No. 63; Sataloff Dep. at 18; R.R. at 236.
Similarly, IME Physician opined that Claimant's increase in hearing impairment between 2006 and 2011 could not be causally related to occupational exposure. F.F. No. 64; Sataloff Dep. at 22-25; R.R. at 236. IME Physician found no evidence of noise sufficient to cause Claimant's alleged 2009 hearing loss. F.F. No. 64; Sataloff Dep. at 26, 29; R.R. at 238. To that end, IME Physician noted Claimant's testimony that since 2003, Employer's new trucks were not as noisy as its older trucks. F.F. No. 64; Sataloff Dep. at 24-25; R.R. at 236. IME Physician further noted Claimant did not wear ear protection because he hears better without it. Id. In very noisy environments, people hear better with ear protection. Id. In borderline or quieter environments, people do not hear well with ear protection. Id.
By accepting IME Physician's testimony as more credible and more persuasive than that of Claimant's Physician, the WCJ determined Claimant failed to meet his prima facie burden of establishing by medical evidence that his hearing impairment was causally related to exposure to hazardous occupational noise while working for Employer. See Seaman (recognizing that a claimant must present medical evidence to meet his burden of proving that his permanent hearing loss of more than 10% was work-related); Flatley (burden of proof is on the claimant to establish that he suffers from a permanent hearing loss of 10% or greater that is medically established to be work-related and caused by the long-term exposure to occupational noise).
In sum, the WCJ rejected as not credible the testimony of Claimant's Physician regarding a relationship between Claimant's hearing loss and his exposure to noise at work. F.F. No. 85; C.L. No. 8. This is entirely within the province of the WCJ as fact-finder. A & J Builders, Inc.
Consequently, we discern no error in the WCJ's determination that Claimant "failed to satisfy his burden of proof that any hearing loss he suffers from his alleged April 22, 2010 injury date is related to his employment." C.L. No. 8. "To the contrary the credible testimony of [IME Physician] established that it is not possible that it is from his employment." Id. (emphasis added).
C. Competency of Employer's Medical Evidence
Claimant also challenges the competency of IME Physician's opinions. He contends the WCJ disregarded significant problems with IME Physician's testimony. First, IME Physician could not render an opinion within a reasonable degree of medical certainty as to what pathology actually caused Claimant's hearing loss.
Second, IME Physician opined Claimant was not exposed to sufficient noise to cause a hearing loss. However, IME Physician had no knowledge of the actual noise levels.
Third, despite stating that Claimant should have reached maximum hearing loss with 10 to 15 years of his initial exposure to hazardous occupational noise, and despite finding there was insufficient noise in Claimant's work environment to cause a hearing loss, IME Physician placed a noise restriction on Claimant's work. IME Physician limited Claimant's exposure to no higher than a 90 dBA work environment without hearing protection. See Sataloff Dep., Ex. D-8; R.R. at 401.
Fourth, Claimant asserts IME Physician did not consider that Claimant's yearly exposure to line painting noise occurred between April and November, which would lengthen the time of exposure needed to reach maximum impairment from 12 to 15 years to 24 to 30 years. Here, Claimant sustained a permanent hearing loss of greater than 10% after working for Employer for more than 25 years.
For these reasons, Claimant argues IME Physician's testimony contained substantial inconsistencies, and he based his opinions on mere possibilities rather than facts. Therefore, Claimant urges, IME Physician's testimony was equivocal and thus legally incompetent to support the WCJ's findings.
Whether a medical opinion is equivocal is a question of law fully reviewable on appeal. O'Neill v. Workers' Comp. Appeal Bd. (News Corp. Ltd.), 29 A.3d 50 (Pa. Cmwlth. 2011). A determination as to equivocality must be based on a review of the entire testimony. Id. Medical testimony is unequivocal if a medical expert testifies, after providing a foundation for the testimony, that in his professional opinion, he believes or thinks a fact exists. Id. However, to be unequivocal, every word of a medical expert's testimony or opinion "does not have to be certain, positive, and without reservation or semblance of doubt." Id. at 57. "Even if a medical expert admits to uncertainty, reservation or lack of information with respect to medical details, the testimony remains unequivocal so long as the expert expresses a belief that, in his or her professional opinion a fact exists." Id. at 58; see also Somerset Welding & Steel v. Workmen's Comp. Appeal Bd. (Lee), 650 A.2d 114 (Pa. Cmwlth. 1994) (the appearance of inconsistencies in a medical expert's opinion does not render a medical expert's testimony equivocal where he does not contradict himself).
Upon review of IME Physician's testimony in its entirety, we determine that his opinion is unequivocal. IME Physician took Claimant's history, reviewed his medical records, and obtained an audiogram. He performed an ear, nose and throat examination. IME Physician also reviewed Claimant's Physician's medical testimony, and the testimony of the fact witnesses in this case. See Sataloff Dep. at 21-22; R.R. at 236-37. Based on his examination and review of Claimant's records, IME Physician testified Claimant sustained a significant hearing loss between 2006 and 2011. Sataloff Dep. at 22; R.R. at 237. However, IME Physician opined Claimant's hearing loss could not be attributed to occupational noise exposure. Id. IME Physician testified that when people are exposed to noise, they sustain the maximum hearing loss that they will sustain from noise within the first 10 to 15 years. Sataloff Dep. at 23; R.R. at 237.
IME Physician also testified there was inadequate evidence of Claimant's exposure over time to sufficient noise to cause his hearing loss. Sataloff Dep. at 26-29; R.R. at 238. People need to be exposed over many hours per day and many weeks per year to sustain injury from continuous noise exposure. Sataloff Dep. at 26; R.R. at 238.
Further, IME Physician testified he could not render an opinion within a reasonable degree of medical certainty as to the precise cause of Claimant's hearing loss because he was not Claimant's treating physician. However, this does not render IME Physician's opinion equivocal or less credible than Claimant's Physician's contrary opinion. See Williams v. Workmen's Comp. Appeal Bd. (Montgomery Ward), 562 A.2d 437 (Pa. Cmwlth. 1988) (a treating physician's testimony is not entitled to greater weight than any other medical witness; the law does not require a WCJ to credit a treating physician's testimony).
IME Physician provided a sufficient medical explanation for his opinion that Claimant's occupational exposure to noise did not cause his hearing loss. Primarily, Claimant's hearing loss, if caused by occupational noise, should have occurred by 1999 to 2001. IME Physician testified that the American Occupational Medical Association (AOMA) established the 10 to 15 year standard for onset of maximum hearing loss in 1997, and updated it in 2002. Sataloff Dep. at 22; R.R. at 237. IME Physician further stated that these are the guidelines and criteria used by AOMA members for making the diagnosis of occupational hearing loss. Id.
IME Physician also testified that Claimant's history and work experience, especially in 2009 immediately preceding his alleged 2010 work injury, did not provide a history of enough noise to explain Claimant's significant increase in hearing loss in 2009-2010. See Sataloff Dep. at 26; R.R. at 238. IME Physician further testified that his opinions that Claimant's hearing loss was not work-related were rendered within a reasonable degree of medical certainty. Sataloff Dep. at 38; R.R. at 241.
The Claimant challenges the finding that he did not suffer a long-term exposure to hazardous occupational noise. However, given the testimony and findings regarding causation, even a successful challenge to the finding regarding the occupational noise level will not support relief on appeal.
Next, Claimant argues, IME Physician's 2010 restriction limiting Claimant's exposure to no more than a 90 dBA work environment, renders equivocal his opinion that Claimant's hearing loss was not work-related. In short, Claimant asserts, if he sustained a maximum hearing loss by IME Physician's 12 to 15 year deadline, and if his work environment was not overly noisy, there would be no need for such a work restriction.
Claimant's assertion fails. IME Physician did not testify that Claimant sustained a maximum hearing loss by 1999-2001. To the contrary, Claimant's hearing loss in 1999 was well under 10%. F.F. No. 63. Rather, IME Physician merely testified Claimant's occupational exposure to noise did not cause Claimant's substantial hearing loss, which occurred between 2006 and 2010. F.F. No. 64. Regardless, IME Physician's suggested 2010 work restriction, that Claimant wear ear protection when exposed to more than 90 dBA, R.R. at 401, does not render equivocal his opinion that Claimant's occupational exposure to noise did not cause his hearing loss in 2006 to 2010. O'Neill; Somerset Welding (minor inconsistencies in a medical expert's opinion does not render his testimony equivocal where he does not contradict himself).
Similarly, we reject Claimant's contention that IME Physician's testimony is equivocal because he did not consider that Claimant's yearly exposure to line painting noise only occurred for the six-month period between April and November, which would lengthen the time of exposure needed to reach maximum impairment from 12 to 15 years to 24 to 30 years. Claimant cites no medical evidence in the record supporting his position that exposure to hazardous occupational noise for six months a year would result in the onset of maximum hearing impairment 24 to 30 years after initial exposure.
More importantly, Claimant's argument suggests that he did not suffer exposure to hazardous occupational noise for a period of at least three days per week for a period of 40 weeks per year. This would preclude him from establishing a long-term exposure to hazardous occupational noise. Section 105.6 of the Act, 77 P.S. 25.6; Joy Mining.
For these reasons, we reject Claimant's contention that IME Physician's medical testimony was equivocal and therefore legally incompetent to support the WCJ's decision. Viewed in its entirety, IME Physician's testimony provides substantial competent evidence for the WCJ's determination that Claimant "failed to satisfy his burden of proof that any hearing loss he suffers from his alleged April 22, 2010 injury date is related to his employment." C.L. No. 8.
IV. Conclusion
Apart from the WCJ's erroneous conclusion that Claimant failed to provide Employer with timely notice of injury, we discern no error or abuse of discretion in the WCJ's order denying Claimant's claim petition seeking specific loss benefits for a permanent hearing loss caused by long-term exposure to hazardous occupational noise. Accordingly, we affirm the order of the Board.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 8th day of January, 2015, for the reasons stated in the foregoing opinion, the order of the Workers' Compensation Appeal Board is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge