Richcreek v. Workers' Compensation Appeal Board

786 A.2d 1054, 2001 Pa. Commw. LEXIS 848
CourtCommonwealth Court of Pennsylvania
DecidedNovember 15, 2001
StatusPublished

This text of 786 A.2d 1054 (Richcreek 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
Richcreek v. Workers' Compensation Appeal Board, 786 A.2d 1054, 2001 Pa. Commw. LEXIS 848 (Pa. Ct. App. 2001).

Opinion

FLAHERTY, Senior Judge.

Sam Richcreek (Claimant) petitions for review from an order of the Workers’ Compensation Appeal Board (Board) which affirmed the decision of the Workers’ Compensation Judge (WCJ) denying Claimant’s petition for hearing loss benefits. We affirm.

On August 23, 1996, Claimant filed a claim petition alleging that as of August 21, 1996, he sustained an occupational hearing loss due to exposure to hazardous occupational noise during the course and scope of his employment with York International Corporation (Employer).1 Employer denied the allegations and the case was assigned to a WCJ.

At the WCJ’s hearing, Claimant testified that he began working for Employer in 1965 as a crane and forklift operator. The job was noisy due to motors and cranes running up and down the tracks. After eight months, Claimant left his employment with Employer and returned to his previous employer for a period of eighteen months where he loaded railroad cars. In 1967, Claimant returned to work for Employer as a welder/assembler. His duties include welding parts together, using a sledgehammer, chisel, air arc and torches. He testified that the job is noisy and that he wears hearing protection. According to Claimant, he has difficulty communicating with fellow workers because of the noise at work. Approximately fifteen years ago, Claimant began noticing a hearing loss. Claimant stated that the hearing in his right ear is worse than that in his left ear.

In support of his claim petition, Claimant presented the report of Dr. Steven Ladenheim, who evaluated the Claimant for a hearing loss on May 7, 1997. Dr. Ladenheim stated that Claimant had a mild to severe mixed hearing loss and that using the American Medical Association (AMA) guidelines, Claimant suffered a 16.88 percent hearing loss in his right ear, a 18.13 percent loss in his left ear and a bilateral loss of 13.75 percent. Dr. Laden-heim opined that the sensorineural component of Claimant’s hearing loss resulted from the high level of noise Claimant was exposed to while working for Employer.

In opposition to the claim petition, Employer introduced the report of Dr. Peter L. Zemo, who examined Claimant on September 25, 1997. Dr. Zemo opined that Claimant had a precipitous high-tone sen-sorineural hearing loss in both ears. In addition, at lower frequencies Claimant had a bilateral conductive loss, which Dr. Zemo clinically diagnosed as otosclerosis.2 Using the AMA guidelines, Dr. Zemo opined that Claimant had a binaural impairment of 20.6%. However, Dr. Zemo further indicated that it was necessary to use bone conduction studies to assess Claimant’s sensineural function because the conductive component or otosclerosis is [1056]*1056not caused by noise. Using the bone conduction scores, Dr. Zemo calculated that Claimant had a binaural disability of 7.5 percent.

The WCJ credited the report of Dr. Zemo that Claimant suffered a 7.5 percent binaural hearing loss related to noise exposure, which does not meet the requirement of 10 percent under Section 306(c)(8)(iii) to prevail in an award for specific loss benefits. According to the WCJ, Dr. Zemo looked at Claimant’s total history along with available audiogram results and provided reasoning that was unequivocal. The WCJ found Dr. Ladenheim credible in part and not credible in part. Although Dr. Ladenheim opined that Claimant suffered a hearing loss that was both noise induced and due to Claimant’s physical conditions, Dr. Ladenheim failed to explain the mixed hearing loss. On appeal the Board affirmed.

Before this court, Claimant argues that the WCJ erred in relying on Dr. Zemo’s method of using Claimant’s bone conduction scores to calculate his hearing impairment. We first observe that Section 306(c)(8) of the Act, was amended by Act I, Act of February 23, 1995, P.L. 1, 77 P.S. § 513(8), and contains the hearing loss amendments. Section 306(c)(8)(i) of the Act states that, in cases involving “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.”3 However, Section 306(c)(8)(vi) of the Act, states that an employer is “liable only for the hearing impairment caused by such employer....”

Claimant argues that the Act does not permit bone conduction testing to be used to calculate a claimant’s hearing loss because Section 306(c)(8)(i) of the Act provides that the percentage of impairment shall be calculated using the AMA Impairment Guides and the Impairment Guides measure a claimant’s hearing loss using air conduction studies, not bone conduction studies. In this case, Dr. Zemo calculated Claimant’s hearing loss under the AMA Guides and determined that his hearing loss was 20.6 percent. In addition to concluding that Claimant had precipitous hightone sensorineural loss in both ears, which is attributable to noise exposure, Dr. Zemo also concluded, based on the pure tone air test, that Claimant had a bilateral hearing loss of hearing at lower frequencies and concluded that this loss was due to otosclerosis, which is not related to noise exposure. Dr. Zemo conducted a bone conduction test to assess his senso-rineural function because the conductive component is not related to noise exposure. As a result of the testing, Dr. Zemo concluded that Claimant had a sensorin-eural loss, related to noise exposure, of 7.5 percent.

We begin our analysis as to whether a deduction can be made for Claimant’s otos-clerosis by reviewing the Pennsylvania Supreme Court’s decision in LTV Steel Company v. Workers’ Compensation Appeal Board (Mozena), 562 Pa. 205, 754 A.2d 666 (2000). In Mozena, the Court addressed the issue of whether a deduction should be taken for a claimant’s hearing loss, which is attributable to age. The Court observed that the Act does not require such a deduction and there is “no reliable scientific (controlled) means of quantifying how aging, impairs the hearing of a given individ[1057]*1057ual.” Id. at 223, 754 A.2d at 675. Because there are only general statistical formulas and no true method for calculating the effects of aging, the Court determined that no deduction for age related hearing loss should be made when determining a claimant’s hearing impairment. The Court also stated, however, that “the effect of many other nonoccupational factors are quantifiable. Courts have reduced an employer’s responsibility for benefits where it is established that a nonwork-related cause was the substantial contributing factor of hearing impairment.” Id. at 223, 754 A.2d at 675-76. The Court further stated that “[w]e find no merit to the contention by LTV that the decision .... precludes employers from presenting evidence of all nonoccupational causes. Where the nonoccupational causes of a specific individual’s hearing impairment is quantifiable using the AMA Guides, either side may present evidence of the percentage of loss.” Id.

As such, in accordance with Mozena, a deduction may be made for nonoccupational factors that affect an individual’s hearing. As to whether the results of a bone conduction test may be used, we observe that in Mozena^ the Court stated the following with respect to audiograms and the difference between bone conduction and air conduction tests:

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Bluebook (online)
786 A.2d 1054, 2001 Pa. Commw. LEXIS 848, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richcreek-v-workers-compensation-appeal-board-pacommwct-2001.