Bethlehem Steel Corp. v. Workers' Compensation Appeal Board

793 A.2d 1012, 2002 Pa. Commw. LEXIS 140
CourtCommonwealth Court of Pennsylvania
DecidedMarch 12, 2002
StatusPublished

This text of 793 A.2d 1012 (Bethlehem Steel Corp. v. Workers' Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bethlehem Steel Corp. v. Workers' Compensation Appeal Board, 793 A.2d 1012, 2002 Pa. Commw. LEXIS 140 (Pa. Ct. App. 2002).

Opinion

OPINION BY

President Judge COLINS.

Bethlehem Steel Corporation (Employer) petitions for review of the Workers’ Compensation Appeal Board (Board) order affirming an award of benefits to Alfonso Martinez on his claim petition in which he alleged a work-related loss of hearing in both ears.

Martinez worked for Bethlehem Steel from 1964 to 1992, and during that time he was exposed to loud and continuous noise. On or about June 23,1995, Martinez filed a claim petition alleging that his last date of employment and/or exposure was November 30, 1992 and that notice of his injury was served on the Employer by the filing of the claim petition. At a March 1997 hearing before the workers’ compensation judge, Martinez testified about his various jobs with the Employer and his exposure to noise. He stated that in 1992 before he retired, he had his hearing tested at the union hall. He stated that he never received a copy of the test results and was never told that he had sufficient hearing loss to qualify for benefits, but he subsequently contacted counsel, who told him he had cause to file a claim. (Notes of Testimony, pp. 21-22.) At the time of the March 1997 hearing, counsel for the Employer made an oral motion to dismiss on the ground that the case had been filed for over a year without an opinion from a medical expert to establish the compensa-bility of Martinez’s injury.

In support of his claim, Martinez produced the deposition testimony of Dr. Bruce M. Greenspan, board-certified in otolaryngology, who examined Martinez and conducted tests in April 1997. On the basis of an audiogram he performed on Martinez on April 4, 1997 and examination of earlier audiograms, Dr. Greenspan testified that pursuant to the AMA guidelines, Martinez suffered a 34 percent hearing loss attributable to occupational noise exposure. The Employer presented the deposition testimony of Dr. Craig Hayt-manek, who examined Martinez at the Employer’s request. Based on a 1992 au-diogram taken when Martinez was still working, Dr. Haytmanek opined that Martinez had a 17.2 percent binaural hearing loss. Eliminating non-work-related causes and hearing loss attributable to age, Dr. Haytmanek attributed a 7.8 percent bin-aural hearing loss to work-related causes. Crediting the testimony of both medical experts in part, the judge found that Martinez suffered a compensable hearing loss of 17.2 percent.

The Employer appealed, challenging the judge’s findings and conclusions as to the percentage of hearing loss and raising the judge’s failure to address the timeliness of notice to the Employer. After concluding that the judge’s finding of a 17.2 percent hearing loss was inconsistent with the evidence, the Board reversed and remanded for findings and conclusions on the extent [1014]*1014of Martinez’s hearing loss consistent with the evidence and also instructed the judge to address the Employer’s contention, raised in its answer to the claim petition, that it did not receive timely notification of Martinez’s injury.

On remand, without taking additional evidence,1 the judge made the following findings with respect to notice:

5. During the Claimant’s employment the employer took serial audiograms which demonstrate a progressive loss of hearing. Although the employer was aware of the Claimant’s loss of hearing and had reason to be aware of its cause, the Claimant was not notified by the employer of his specific audiogram results or of the reason for his hearing loss.
6. The Claimant was not notified by competent medical authority that he had a compensable noise related hearing loss until he was so advised by Dr. Bruce Greenspan subsequent to the April 4, 1997 examination.
7. Although as a practical matter the employer had actual notice of the Claimant’s hearing loss by virtue of its own hearing testing program, the employer was not formally notified of the Claimant’s loss until the filing of the instant petition on June 26,1995.

(Remand Findings of Fact Nos. 5-7.) The judge credited Dr. Greenspan’s testimony in its entirety and rejected the opinions of Dr. Haytmanek. Based on Dr. Greenspan’s testimony, the judge concluded that Martinez had established a compensable hearing loss of 34 percent. The Board affirmed.

Before Commonwealth Court, the Employer raises the following errors: 1) the judge’s original credibility determination with respect to Dr. Greenspan’s testimony was not appealed and therefore not subject to reconsideration on remand; 2) the audi-ogram on which Dr. Greenspan based his medical opinion did not conform to OSHA standards and therefore the audiogram and the medical opinion were legally insufficient to support an award of benefits; 3) the judge’s determination of timely notice to the Employer is not supported by the evidence, or in the alternative, interest on the award of benefits should be calculated as of April 1997 and not the date the claim petition was filed.

In workers’ compensation cases, our review is limited to determining whether necessary findings of fact are supported by substantial evidence and whether constitutional rights have been violated or errors of law have been committed. 2 Pa.C.S. § 704. Our function is not to reweigh evidence or to substitute our judgment for the judgment of the judge. Vitelli v. Workmen’s Compensation Appeal Board (St. Johnsbury Trucking Company), 157 Pa.Cmwlth.589, 630 A.2d 923 (1993), petition for allowance of appeal denied, 537 Pa. 627, 641 A.2d 591 (1994). If the credited evidence constitutes substantial evidence, the judge’s findings will not be disturbed even though there may be evidence to the contrary. American Refrigerator Equipment Company v. Workmen’s Compensation Appeal Board, 31 Pa.Cmwlth. 590, 377 A.2d 1007 (1977).

We begin by addressing the Employer’s contention that the evidence does not support the judge’s determination of timely notice of injury. The Employer argues that the 120 day notice period began to run in 1992, when Martinez was advised by a physician that his hearing loss was work-[1015]*1015related and advised by his attorney that he had a compensable claim. Martinez argues that the notice period did not begin to run until April of 1997, when Dr. Greenspan advised him that he had a work-related, 34-percent binaural hearing loss.

The claimant bears the burden of proving that the employer was given notice of the injury. Kocher’s IGA v. Workers’ Compensation Appeal Board (Dietrich), 729 A.2d 145 (Pa.Cmwlth.1999), petition for allowance of appeal denied, 561 Pa. 680, 749 A.2d 473 (2000). Whether a claimant has complied with the Act’s notice requirements is a question of fact to be determined by the fact finder. Socha v. Workers’ Compensation Appeal Board (Bell Atlantic-Pa., Inc.), 566 Pa. 602, 783 A.2d 288 (2001).

Section 311 of the Workers’ Compensation Act (Act)2 provides,

Unless the employer shall have knowledge of the occurrence of the injury, or unless the employe or someone in his behalf, ...

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Related

Hermanson v. Workmen's Compensation Appeal Board
628 A.2d 514 (Commonwealth Court of Pennsylvania, 1993)
Socha v. Workers' Compensation Appeal Board
783 A.2d 288 (Supreme Court of Pennsylvania, 2001)
Vitelli v. Workmen's Compensation Appeal Board
630 A.2d 923 (Commonwealth Court of Pennsylvania, 1993)
Boeing Helicopter Co. v. Workmen's Compensation Appeal Board
629 A.2d 184 (Commonwealth Court of Pennsylvania, 1993)
Kocher's IGA v. Workers' Compensation Appeal Board
729 A.2d 145 (Commonwealth Court of Pennsylvania, 1999)
American Refrigerator Equipment Co. v. Commonwealth
377 A.2d 1007 (Commonwealth Court of Pennsylvania, 1977)

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793 A.2d 1012, 2002 Pa. Commw. LEXIS 140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bethlehem-steel-corp-v-workers-compensation-appeal-board-pacommwct-2002.