Opinion
No. 297 C.D. 2012
08-09-2012
John Savage, Petitioner v. Workers' Compensation Appeal Board (Philadelphia Gas Works), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
John Savage (Claimant) petitions this Court for review of the Workers' Compensation Appeal Board's (Board) February 3, 2012 order affirming the Workers' Compensation Judge's (WCJ) decision denying Claimant's claim petition. Claimant presents two issues for this Court's review: (1) whether the WCJ erred as a matter of law, because she failed to first determine if Claimant established that he had a binaural hearing loss of 10%, and that he was exposed to occupational noise; and (2) whether the WCJ erred as a matter of law, because she misapplied the standards for weighing Philadelphia Gas Works' (Employer) affirmative defense evidence in a hearing loss case. We affirm.
Claimant worked as a meter reader, meter mechanic, meter repair specialist and, finally, an instrument repair specialist for Employer for approximately 30 years. Claimant worked as an instrument repair specialist for his last 12 years of employment. On January 13, 2009, Claimant filed a claim petition alleging a work- related injury in the nature of binaural hearing loss as of January 5, 2009. Claimant worked his last day with Employer on January 27, 2009, and officially retired on February 1, 2009. On July 30, 2009, a Referee held a hearing on Claimant's petition. On January 6, 2011, the Referee denied and dismissed Claimant's claim petition. Claimant appealed to the Board and, on February 3, 2012, the Board affirmed the Referee's order. Claimant appealed to this Court.
January 5, 2009 is the date Claimant was examined by Aaron Shapiro, M.D. Reproduced Record at 37a.
"This Court's scope and standard of review of an order of the Board is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether Board procedures were violated, whether constitutional rights were violated or an error of law was committed." World Kitchen, Inc. v. Workers' Comp. Appeal Bd. (Rideout), 981 A.2d 342, 346 n.5 (Pa. Cmwlth. 2009).
Claimant argues that the WCJ erred as a matter of law, because she failed to first determine if Claimant established that he had a binaural hearing loss of 10%, and that he was exposed to occupational noise. We disagree.
Initially, we recognize that Section 306(c) of the Workers' Compensation Act (Act) sets forth the method of calculating compensation for work-related hearing loss. Section 306(c) of the Act states, in relevant part:
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 513(8)(iii).
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) of subsection (a) of this section.(Emphasis added). In the instant case, both parties' expert doctors testified that Claimant's binaural hearing loss was greater than 10%. Thus, the WCJ only needed to determine whether the loss was caused by long-term occupational exposure.
(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 per centum, no benefits shall be payable. . . .
"Section 105.6 of the Act provides that: 'The 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.'" Flatley v. Workers' Comp. Appeal Bd. (Mallinckrodt Chem., Calsicat Div.), 803 A.2d 862, 867 (Pa. Cmwlth. 2002). "Section 105.4 of the Act, by incorporating OSHA's occupational noise exposure standards, allows exposure up to 90 decibels for an eight hour day before the exposure is deemed hazardous." Id., 803 A.2d at 867 (quoting Toth v. Workers' Comp. Appeal Bd. (USX Corp.), 737 A.2d 838, 840 n.5 (Pa. Cmwlth. 1999)).
Act of June 2, 1915, P.L. 736, as amended, added by Section 2 of the Act of February 23, 1995, P.L. 1, 77 P.S. § 25.6.
Act of June 2, 1915, P.L. 736, as amended, added by Section 2 of the Act of February 23, 1995, P.L. 1, 77 P.S. § 25.4.
All that a claimant has to do to meet his or her burden under Section 306(c)(8)(i) of the Act is to prima facie establish that the claim was timely filed by showing that he or she was exposed to occupational noise while working for Employer during the three years preceding the claim. The Employer then may rebut that it was timely filed by establishing that claimant's noise exposure was not hazardous or long-term during that time.Id., 803 A.2d at 867 (quoting in Meadville Forging Co. v. Workers' Comp. Appeal Bd. (Artman), 747 A.2d 958, 961 (Pa. Cmwlth. 2000)).
Here, Claimant testified that as an instrument repair specialist he was exposed to loud noise emitting from air tools and proving machines throughout his last 12 years working with Employer and, with the exception of his last year, his hearing was unprotected. He testified that the air tools consisted of "impact wrenches" and "air screw drivers" which made a "loud hissing, rattling noise." Reproduced Record (R.R.) at 23a-24a. He further testified that "a prover tells you the accuracy of a gas meter" and "the noise was un-Godly." R.R. at 31a. The transfer provers "sounded like airplanes going off." R.R. at 33a. Claimant explained that Employer did not provide earplugs until "[a]bout a year before [he] retired." R.R. at 33a. Claimant's testimony, which the WCJ deemed credible, established prima facie that he was exposed to occupational noise while working for Employer during the three years preceding the claim. Accordingly, Claimant met his burden of proof.
However, "the employer may assert as an affirmative defense that the claimant's exposure to such noise was not hazardous or long-term." Id., 803 A.2d at 867. In the instant case, Employer's burden was met by Claimant's testimony. Claimant testified the loudest occupational noise came from the air tools and the proving machines when he was in the shop, and the loudest occupational noise came from the boiler rooms when he was on the road. Concerning the air tools, Claimant testified that he did not use them continuously for 8 hours a day, but rather he used them sporadically throughout the day. R.R. at 51a. Similarly, concerning the proving machines, Claimant testified he would hear the loudest noise for less than a couple of minutes in an hour. R.R. at 54a. Claimant further testified that he was only in the shop "like one week out of a month, one week out of six weeks, depending on the workload and where you were needed at." R.R. at 32a. When asked if he was in the shop the entire 5 days during that week, Claimant responded: "No." R.R. at 54a. Regarding his work on the road, Claimant testified the time he spent in boiler rooms "could have been one day a week to five days a week . . . and you can be in there anywhere from forty-five minutes to four hours depending on what kind of work you had to do." R.R. at 34a-35a. Clearly, Claimant's own testimony established that his exposure did not exceed the permissible daily exposure for at least eight hours a day, three days each week for forty weeks of one year. Thus, Claimant's testimony satisfied Employer's burden in proving that his exposure was not hazardous or long-term. Accordingly, the WCJ did not err as a matter of law in concluding the same.
This Court notes, as did the WCJ, that Lee D. Rowe, M.D. testified that Claimant's hearing decreased after he retired, further supporting the conclusion that Claimant's hearing loss was not due to occupational noise, as such hearing loss cannot progress after being removed from the noise. See: R.R. at 158a-159a, 376a. --------
For all of the above reasons, the Board's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 9th day of August, 2012, the Workers' Compensation Appeal Board's February 3, 2012 order is affirmed.
/s/_________
ANNE E. COVEY, Judge