Keith v. Workmen's Compensation Appeal Board

654 A.2d 183, 1995 Pa. Commw. LEXIS 39
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 19, 1995
StatusPublished
Cited by5 cases

This text of 654 A.2d 183 (Keith v. Workmen's 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
Keith v. Workmen's Compensation Appeal Board, 654 A.2d 183, 1995 Pa. Commw. LEXIS 39 (Pa. Ct. App. 1995).

Opinion

NEWMAN, Judge.

Melvin Keith (Claimant) appeals from an order of the Workmen’s Compensation Appeal Board (Board), which affirmed a referee’s decision denying him specific loss benefits under Section 306(c)(8) of The Pennsylvania Workers’ Compensation Act (Act).1 We reverse and remand.

Claimant worked for The Budd Company (Employer) for approximately thirty-five years. During the course of that employment, Claimant was frequently exposed to loud noise.

On February 2, 1990, Claimant filed a claim petition, alleging that he has suffered a complete loss of hearing as the result of occupational noise exposure. Employer filed an answer, denying the material allegations of Claimant’s petition. In its answer, Employer also asserted that Claimant’s petition was barred by the applicable statute of limitations.

[184]*184The referee subsequently held hearings at which Claimant testified as follows. He first recognized a hearing loss as early as the 1970’s. During that time, Claimant lost a union election, which he attributed to his hearing difficulties, and he also considered taking a medical leave of absence. By November 1986, Claimant was unable to hear his minister in church, he had trouble talking on the telephone, he could not hear the television without turning up the volume and he was unable to perform his job duties without assistance. Claimant, during his thirty-five year employment, notified Employer on many occasions of his hearing loss and his belief that the loss was related to occupational noise exposure. In November 1986, Claimant informed Employer that he had decided to retire, and on February 28, 1987, he resigned.

In support of his petition, Claimant also presented the deposition testimony of William W. Banks, M.D. and Max Lee Ronis, M.D. According to Dr. Banks, who examined Claimant for the first time on February 12, 1990 and again on February 8, 1991, Claimant suffers a symmetrical, bilateral, sensorineural hearing loss. Dr. Banks also testified that Claimant’s hearing loss is a result of his exposure to loud noise during his employment and that he has lost the use of his hearing for all practical intents and purposes. Dr. Ronis, who examined Claimant on March 28, 1991, agreed with Dr. Banks regarding the cause and degree of Claimant’s hearing loss.

Employer, in opposition presented the deposition testimony of Seth I. Rosenberg, M.D. It was Dr. Rosenberg’s opinion that although Claimant has some hearing loss, he has not lost his hearing for all practical intents and purposes.

Upon consideration of the evidence presented, the referee found that by November 1986, Claimant was aware, as a practical matter, that he had suffered a substantial loss of hearing. The referee further found the testimony of Claimant’s physicians to be more credible and persuasive than that of Employer’s medical expert. Based upon the testimony of Claimant’s experts, the referee found that Claimant suffered a complete loss of hearing for all practical intents and purposes and that the hearing loss was the result of occupational noise exposure. The referee also found, based upon Dr. Ronis’ testimony, that Claimant’s complete loss of hearing was not a recent occurrence, but began at least as far back as 1986.

Therefore, the referee concluded that although Claimant had suffered a complete, work-related hearing loss, his claim was barred by the statute of limitations. Specifically, the referee indicated that Claimant did not file his petition until more than three years after he became aware that he had lost the use of his hearing for all practical intents and proposes. Accordingly, the referee dismissed Claimant’s petition.

Claimant appealed to the Board, and the Board affirmed the referee’s decision. This appeal followed.

On appeal to this court, the sole issue before us is whether the referee erred in holding that Claimant’s claim petition was time-barred by the three-year statute of limitations set forth in Section 315 of the Act, 77 P.S. § 602.2

The law is clear that Section 315 of the Act extinguishes a claimant’s right to compensation unless he files a claim within three years from the date of injury. Berisford v. Workmen’s Compensation Appeal Board (Jessop Steel Co.), 142 Pa.Commonwealth Ct. 83, 596 A.2d 1237 (1991). Although Section 315 has a discovery rule,3 this [185]*185court has interpreted it to apply only to injuries resulting from ionizing radiation or occupational diseases. See Jones & Laughlin Steel Corp. v. Workmen’s Compensation Appeal Board (Feiertag), 90 Pa.Commonwealth Ct. 567, 496 A.2d 412 (1985). Therefore, for purposes of determining whether a claim for hearing loss, which results neither from ionizing radiation nor an occupational disease, is time-barred under Section 315, the three-year limitations period begins to run from the date of injury despite the claimant’s actual or constructive knowledge of the injury. Boeing Helicopter Co. v. Workmen’s Compensation Appeal Board (McCanney), 157 Pa.Commonwealth Ct. 76, 629 A.2d 184 (1993), petition for allowance of appeal dismissed, — Pa. -, 652 A.2d 796 (1994).

It is Claimant’s position on appeal that because he did not know the nature, degree or etiology of his hearing loss until February 12, 1990, when Dr. Banks examined him, the three-year statute of limitations does not bar his claim petition idled on February 2, 1990. In support of his position, Claimant correctly states that this court has consistently held that the deciding factor in determining the date of injury for purposes of Section 315 is when a claimant’s doctor advises him that he has suffered a complete loss of hearing for all practical intents and purposes and that the loss is work-related. See e.g., Westinghouse Electric Corp. v. Workmen’s Compensation Appeal Board (Peterson), 164 Pa.Commonwealth Ct. 32, 641 A.2d 1277 (1994); B.P. Oil Co. v. Workmen’s Compensation Appeal Board (DeFrank), 158 Pa.Commonwealth Ct. 8, 632 A.2d 585 (1993); Boeing Helicopter; Universal Cyclops Corp. v. Workmen’s Compensation Appeal Board (Cherry), 97 Pa.Commonwealth Ct. 399, 509 A.2d 956 (1986). But see Hermanson v. Workmen’s Compensation Appeal Board (Kaiser Aluminum), 156 Pa.Commonwealth Ct. 556, 628 A.2d 514, petition for allowance of appeal denied, 536 Pa. 633, 637 A.2d 293 (1993) (wherein this court rejected a claimant’s contention that he was not aware of the significance of his hearing loss until he was so advised by his doctor).

Relying upon Claimant’s testimony, the referee in the present action found that by November 1986, Claimant was aware that he had suffered a substantial loss of hearing.

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Bluebook (online)
654 A.2d 183, 1995 Pa. Commw. LEXIS 39, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keith-v-workmens-compensation-appeal-board-pacommwct-1995.