Russell v. Workmen's Compensation Appeal Board

638 A.2d 373, 162 Pa. Commw. 97, 1994 Pa. Commw. LEXIS 62
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 10, 1994
StatusPublished
Cited by5 cases

This text of 638 A.2d 373 (Russell 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
Russell v. Workmen's Compensation Appeal Board, 638 A.2d 373, 162 Pa. Commw. 97, 1994 Pa. Commw. LEXIS 62 (Pa. Ct. App. 1994).

Opinion

PELLEGRINI, Judge.

Hulbert Russell (Claimant) petitions for review of the order of the Workmen’s Compensation Appeal Board (Board) affirming the decision of the Referee denying Claimant specific loss benefits for a loss of hearing.1

Claimant worked for Cooper Bessemer (Employer) for 26 years as a chipper, crane-man, foundry worker and laborer. In those positions, Claimant was exposed to loud and continuous noise made by the machines which he operated or which were operated in close proximity to his work place. Although Claimant wore some ear protection in the later years, he had already begun to experience some hearing impairment. Because of this hearing impairment, Claimant filed a claim petition on February 8, 1991, alleging the loss of use of his hearing in both ears due to continuous exposure to damaging noise in his work for Employer.

Claimant testified before the Referee that he has difficulty understanding conversations, especially when there is background noise. He stated that he cannot hear the telephone ring if it is in another room and he has difficulty carrying on a conversation by telephone. He also stated that he listens to the television so loud that his children tell him to turn it down and that he has trouble understanding a server in a restaurant and the minister in church.

Dr. Stephen M. Froman, Claimant’s otolar-yngologist, testified before the Referee that based on his examination and testing, Claimant suffered a bilaterally symmetrical, mild to severe neurosensory hearing loss with severely impaired discrimination ability. Dr. Froman stated that the difficulties that Claimant complained of are consistent with the deficiencies revealed in the audiologic testing. Dr. Froman opined that the hearing loss was a result of Claimant’s exposure to loud noises during his employment and that he had lost the use of his hearing for all practical intents and purposes.

In opposition, Employer presented the testimony of Dr. Sidney N. Busis, also an otolar-yngologist. Dr. Busis performed audiologic tests, including sound field tests, with Claimant on two occasions. Dr. Busis agreed with Dr. Froman that Claimant had some hearing impairment, and that it was due to his continuous exposure to noise at work but may be partially due to hypolipidemia and his recreational activities, including hunting. However, Dr. Busis opined that Claimant had not lost the use of hearing for all practical intents and purposes, even though he has some hearing loss.2

The Referee found that Claimant has a hearing impairment that has increased in severity over 20 years and causes difficulty [375]*375understanding conversation, particularly when there is background noise, hearing the telephone ring, and carrying on a telephone conversation. Based on Dr. Busis’ testimony, the Referee concluded that Claimant failed to meet his burden of proving that he lost the use of his hearing in both ears for all practical intents and purposes and dismissed the claim petition. Claimant appealed the Referee’s decision to the Board. The Board, without taking further testimony, concluded that there was substantial evidence for the Referee’s finding that Claimant had not lost the use of his hearing for all practical intents and purposes and affirmed the decision. The Claimant then filed this appeal.3

Claimant contends that the finding that he did not lose his hearing for “all practical intents and purposes” was not supported by substantial evidence because Dr. Busis’ opinion was based solely on audiologic tests and did not consider Claimant’s ability to function in social and family settings. Without such testimony, Claimant argues, Dr. Busis’ testimony is insufficient to overcome his own testimony on his inability to function in social and familial settings.

Section 306(c)(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 Section 306 of the Act is a question of fact. Hill v. Workmen’s Compensation Appeal Board (Latrobe Steel Company), 117 Pa.Commonwealth Ct. 251, 543 A.2d 232 (1988), petition for allowance of appeal denied, 522 Pa. 598, 562 A.2d 322 (1989).

A complete loss of hearing has been defined as a loss of hearing for all practical intents and purposes, rather than actually “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 stated in Hartlieb:

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.

Hartlieb, 465 Pa. at 255, 348 A.2d at 749 (emphasis added). The test for loss of hearing for all practical intents and purposes is determining whether the claimant is able to function in his or her usual social, work and familial settings. Pittsburgh Press; ARM-CO, Inc. v. Workmen’s Compensation Appeal Board (Carrodus), 139 Pa.Commonwealth Ct. 326, 590 A.2d 827 (1991), petition for allowance of appeal denied, 529 Pa. 636, 600 A.2d 955 (1991). “The fact that [a claimant] has some hearing ability and that it is of some value to him is not inconsistent with the finding that he has suffered a complete loss of hearing for all practical intents and purposes.” ARMCO, 139 Pa.Commonwealth Ct. at 332, 590 A.2d at 830.

For example, in ARMCO, Inc. v. Workmen’s Compensation Appeal Board (Kollar), 126 Pa.Commonwealth Ct. 288, 292, 559 A.2d 604, 606 (1989), petition for allowance of appeal denied, 524 Pa. 630, 574 A.2d 71 (1990), the claimant proved through his own testimony that he could not hear and understand others sufficiently to carry on a conversation unless he was facing them and in a quiet environment, he could not hear conversations in public places or while riding in a car, and he could not hear the telephone ring or converse on the telephone. We held that there was substantial evidence to support the conclusion that claimant had lost his hearing for all practical intents and purposes. Id. at 291, 559 A.2d at 606.

[376]*376In Pittsburgh Press, 143 Pa.Commonwealth Ct. at 611, 600 A.2d at 627, the claimant testified that he had to ask people to repeat themselves, that he had a hard time hearing people speak when he was riding in a car and when there was a lot of noise.

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Bluebook (online)
638 A.2d 373, 162 Pa. Commw. 97, 1994 Pa. Commw. LEXIS 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-v-workmens-compensation-appeal-board-pacommwct-1994.