LTV Steel Co. v. Workers' Compensation Appeal Board

758 A.2d 749, 2000 Pa. Commw. LEXIS 487
CourtCommonwealth Court of Pennsylvania
DecidedAugust 30, 2000
StatusPublished
Cited by1 cases

This text of 758 A.2d 749 (LTV Steel Co. 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
LTV Steel Co. v. Workers' Compensation Appeal Board, 758 A.2d 749, 2000 Pa. Commw. LEXIS 487 (Pa. Ct. App. 2000).

Opinion

RODGERS, Senior Judge.

LTV Steel Company, Inc. (Employer) petitions for review of an order of the Workers’ Compensation Appeal Board (Board) that affirmed the order of a workers’ compensation judge (WCJ) granting Frederick Bleigh’s (Claimant) claim petition for binaural hearing loss benefits. We affirm.

On May 12, 1995, Claimant filed a claim petition alleging that he sustained a bin-aural hearing loss caused by exposure to noise during the course of his employment.1 Employer filed an answer denying the allegations and the case was assigned to a WCJ.

Claimant testified on his own behalf, indicating that he began working for J & L Steel at its Aliquippa plant in 1956 and has continued to work at the same facility, which is presently known as LTV Steel Company. Claimant identified the posi[751]*751tions that he held over the years and described the types of noise exposure he experienced during his forty years of employment. Claimant also testified about his limited military and hunting experience, which he claimed did not affect his hearing. He also denied that he suffered any injury or disease or had a family history that would cause a hearing loss.

In further support of his claim petition, Claimant presented the deposition testimony of Stephen Froman, M.D., a board-certified otolaryngologist, who examined Claimant on February 7, 1995. Dr. Fro-man testified that Claimant’s exposure to cumulative loud noise at work caused Claimant’s 15% binaural hearing loss as measured under the American Medical Association’s Guide to the Evaluation of Permanent Impairment (AMA Guides). Dr. Froman noted that a 1956 screening audio-gram revealed an abnormality of the left ear, but that Claimant’s hearing impairment at that time measured 0%, thus, eliminating Claimant military experience as a cause of Claimant’s loss. The doctor also stated that Claimant’s recreational hunting was not a substantial factor; nor was Claimant’s age a factor because Claimant began noticing problems with his hearing twenty years earlier when he was thirty-seven years old.

In defending against the claim petition, Employer presented the deposition testimony of Mark Katz, Esquire, senior attorney for Employer. Mr. Katz testified about the corporate structure, history and organization of Employer. Janice Paul, R.N., also testified for Employer and discussed Employer’s audiogram testing program and Claimant’s results on audio-grams administered in 1956, 1974 and 1984. Employer also presented the deposition testimony of Sidney Busis, M.D., a board-certified otolaryngologist, who evaluated Claimant on February 28, 1996. Dr. Busis found Claimant to have sustained a binaural hearing loss of 18.8% pursuant to the AMA Guides. However, Dr. Busis attributed 6.7% of the hearing loss to age and 11.7% to other causes. Additionally, Dr. Busis testified that after 1986, the year Claimant acknowledged that he began using hearing protection, Claimant’s hearing loss after that date was not due to occupational noise exposure.

The WCJ found Claimant and his medical expert credible. The WCJ also found Mr. Katz’s testimony credible and formulated the following findings of fact in regard to that testimony:

(c) Based on the credible testimony of Mr. Katz, I find that LTV Corporation assumed all assets and liabilities of J & L Steel when it acquired J & L Steel in 1974. Furthermore, the testimony of Mr. Katz, specifically his testimony regarding LTV Corporation’s decision making process, its assumption of fiduciary duties regarding the claimant’s benefits, its administration of the claimant’s pension plan and its issuance of paychecks to the claimant from its assets, supports a finding that J & L Steel and LTV Corporation are one entity for purposes of Act 1, despite the characterization of J & L Steel as a wholly owned subsidiary of LTV Corporation.
(d) LTV Corporation did not discharge its liabilities under the Pennsylvania Workers’ Compensation Act by merging its two wholly owned steel subsidiaries, J & L Steel and Republic Steel, to create LTV Steel Company. LTV Corporation operated all of its steel subsidiaries as a unified company. (Depo. of Mark Katz, Esquire, p. 25). Accordingly, when LTV Steel Company became the sole remaining steel subsidiary of LTV Corporation through the merger of J & L Steel and Republic Steel Company, LTV Steel Company, in addition to its parent company LTV Corporation, became the claimant’s employer for purposes of Act 1.
(e) The claimant has been employed by one “employer” for purposes of Act 1 during his 40 year employment history.

(WCJ’s decision, pp. 5-6). Thus, the WCJ concluded that Claimant met his burden of [752]*752proving that he had sustained a binaural hearing loss of 15% as a result of exposure to hazardous occupational noise at work. The WCJ also concluded that Employer had failed to prove that Claimant was employed by a separate employer. Accordingly, the WCJ granted Claimant’s petition. On appeal the Board affirmed.

Employer now appeals to this Court,2 and raises the following issues for our review: (1) whether age-related hearing loss should be considered when determining the amount of binaural hearing impairment caused by exposure to occupational noise, (2) whether merger, acquisition or other changes to the corporate entity should constitute the creation of a new employer for purposes of determining that amount of hearing loss attributed to that employer, and (3) whether the date of injury should be based on when a claimant’s use of hearing protection prevented injurious noise exposure.

Employer first argues that Act 1 does not absolutely preclude evidence of age-related causation of hearing loss, which Employer describes as a non-occupational cause of hearing loss as set forth in Section 306(c)(8)(vi) of the Act, 77 P.S. § 513(8)(vi), which states:

(vi) An employer shall be hable only for the hearing impairment caused by such employer. If previous occupational hearing impairment or hearing impairment from nonoccupational causes is established at or prior to the time of employment, the employer shall not be liable for the hearing impairment so established whether or not compensation has previously been paid or awarded.

Employer relies on Cooper Power Systems v. Workers’ Compensation Appeal Board (McFarland), 722 A.2d 746 (Pa. Cmwlth.1998), and Washington Steel Corporation v. Workers’ Compensation Appeal Board (Waugh), 734 A.2d 81 (Pa.Cmwlth.1999), and argues that these two cases recognize that a claimant has the burden of providing credible medical evidence on the issue of causation and on the amount of hearing impairment caused by exposure to occupational noise and that the WCJ may accept testimony regarding age-related hearing loss. Employer further contends that LTV Steel Company, Inc. v. Workers’ Compensation Appeal Board (Mozena), 727 A.2d 160 (Pa.Cmwlth.1999), petition for allowance of appeal granted, 560 Pa. 713, 743 A.2d 924 (1999), and USX Corp. v. Workers’ Compensation Appeal Board (Rich),

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758 A.2d 749, 2000 Pa. Commw. LEXIS 487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ltv-steel-co-v-workers-compensation-appeal-board-pacommwct-2000.