Pettola v. Workmen's Compensation Appeal Board

650 A.2d 1172, 168 Pa. Commw. 426, 1994 Pa. Commw. LEXIS 618
CourtCommonwealth Court of Pennsylvania
DecidedNovember 21, 1994
StatusPublished
Cited by4 cases

This text of 650 A.2d 1172 (Pettola 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
Pettola v. Workmen's Compensation Appeal Board, 650 A.2d 1172, 168 Pa. Commw. 426, 1994 Pa. Commw. LEXIS 618 (Pa. Ct. App. 1994).

Opinion

NEWMAN, Judge.

Anthony Pettola (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 vacate and remand.

Claimant worked for Sharon Steel Corporation (Employer) for nearly forty years as an electronic arc furnace operator, slitter and laborer. During the course of that employment, Claimant was exposed to loud and continuous noise from various machines operating in close proximity to his work place. Ear protection became available to Claimant in 1978, and he wore it approximately fifty percent of the time.

On November 12, 1991, Claimant filed a claim petition, alleging that he suffers a hearing loss in both ears caused by prolonged exposure to noise at work. Employer filed an answer, denying the material allegations of Claimant’s petition.

The referee subsequently held hearings on January 15, 1992 and June 17, 1992. In support of his petition, Claimant testified that he has difficulty carrying on conversations on the telephone, understanding the minister at church and understanding conversation in movies when softly spoken. Claimant stated that he cannot understand his wife in the presence of any background noise, and he must look at her to understand her. He further stated that his wife must order for him in restaurants because he cannot understand the servers.

Claimant also presented the deposition testimony of Stephen M. Froman, M.D., an otolaryngologist. Dr. Froman testified, based on his examination and testing, that Claimant suffers a bilateral, sloping, mild to severe neurosensory hearing loss with markedly impaired speech discrimination ability. It was Dr. Froman’s opinion that Claimant’s complaints concerning his hearing difficulties in everyday life are consistent with the audi-ologic test results obtained by his audiologist. Dr. Froman also stated that the hearing loss is a result of Claimant’s exposure to loud noises during his employment and that he has lost the use of his hearing for all practical intents and purposes.

Employer, in opposition, presented the deposition testimony of Donald B. Kamerer, M.D. Dr. Kamerer testified that he agreed with Dr. Froman that Claimant has some hearing impairment, although greater in his right ear than his left, and long-term exposure to noise at work was a chief factor in Claimant’s hearing impairment. Dr. Kamerer stated, however, that Claimant has not lost his hearing for all practical intents and purposes, although he has some hearing loss. According to Dr. Kamerer, Claimant has a combined binaural hearing impairment of four percent.

Upon consideration of the evidence presented, the referee found the testimony of Dr. Froman to be credible with respect to the type of hearing loss sustained by Claimant and its causal relationship to his work. The referee, however, rejected Dr. Froman’s conclusion that Claimant has lost his hearing in both ears for all practical intents and purposes on the basis that the doctor’s opinion was inconsistent with Claimant’s scores in speech discrimination testing, testing performed by Dr. Froman.2 The referee noted [1174]*1174that according to Dr. Froman’s results, Claimant’s sound field testing at 60 decibels (the high end of the conversational range) was merely two percentage points from being considered normal. In addition, relying upon the testimony of Dr. Kamerer, the referee found that Claimant did not suffer a compen-sable loss of hearing. As such, .the referee concluded that Claimant did not sustain his burden of proof, and 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 substantial evidence exists in the record to support the referee’s finding that Claimant did not suffer a compensable hearing loss.3

As a preliminary matter, we note that Section 306(e)(8) of the Act sets forth compensation due for the complete loss of hearing in both ears. A determination of whether a claimant has suffered a loss under this section of the Act is a question of fact. 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 granted, 537 Pa. 642, 644 A.2d 165 (1994). Therefore, the referee’s finding that Claimant did not suffer such a hearing loss cannot be disturbed on appeal if it is supported by substantial evidence. Williams v. Workmen’s Compensation Appeal Board (Montgomery Ward), 127 Pa.Commonwealth Ct. 587, 562 A.2d 487 (1989).

This court has defined a complete loss of hearing as a loss of hearing for all practical intents and purposes, rather than a “complete” loss. Pittsburgh Press Co. v. Workmen’s Compensation Appeal Board (Taress), 143 Pa.Commonwealth Ct. 609, 615, 600 A.2d 626, 629 (1991) (citing Workmen’s Compensation Appeal Board v. Hartlieb, 465 Pa. 249, 348 A.2d 746 (1975)). Our Supreme Court in Hartlieb stated:

If the words [complete loss of hearing] are taken relatively rather than absolutely, and in light of everyday experiences, rather than from the viewpoint of a literal clinician, then this precise means of measuring the extent of a hearing loss in percentiles becomes unacceptable. In this relative context a person, even though he is able to hear loud, pure tones, is completely bereft of his hearing if he is unable to communicate with his fellow man and is denied those other practical and useful benefits generally associated with man’s usual and customary wants, needs and pleasures.

465 Pa. at 255, 348 A.2d at 749 (emphasis added).

The test norm of a “complete loss of hearing for all practical intents and purposes” involves a determination as to whether an individual can function in his or her usual social, work and familial settings. ARMCO, Inc. v. Workmen’s Compensation Appeal Board (Carrodus), 139 Pa.Common[1175]*1175wealth Ct. 326, 590 A.2d 827, petition for allowance of appeal denied, 529 Pa. 636, 600 A.2d 955 (1991). The fact that a claimant has some hearing ability, which is of some value to him, is not inconsistent with a finding that he has suffered a compensable hearing loss. Id.

On appeal to this court, Claimant asserts that substantial evidence does not support the referee’s finding that he did not lose his hearing for all practical intents and purposes because Dr. Kamerer based his opinion solely on the results of audiologic testing and did not consider Claimant’s ability to function in social and familial settings. Claimant argues that without such testimony, Dr. Kamerer’s opinion is insufficient to overcome his own testimony that he is unable to function in the everyday aspects of his life.

In support of his position, Claimant relies upon this court’s holding in Russell v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bible v. COM., DEPT. OF LABOR AND IND.
696 A.2d 1149 (Supreme Court of Pennsylvania, 1997)
Bible v. Commonwealth, Department of Labor & Industry
696 A.2d 1149 (Supreme Court of Pennsylvania, 1997)
White v. Workmen's Compensation Appeal Board
666 A.2d 1128 (Commonwealth Court of Pennsylvania, 1995)
Aristech Chemical Corp. v. Workmen's Compensation Appeal Board
664 A.2d 686 (Commonwealth Court of Pennsylvania, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
650 A.2d 1172, 168 Pa. Commw. 426, 1994 Pa. Commw. LEXIS 618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pettola-v-workmens-compensation-appeal-board-pacommwct-1994.