USX Corp. v. Workers' Compensation Appeal Board

754 A.2d 64, 2000 Pa. Commw. LEXIS 306

• Court: Commonwealth Court of Pennsylvania
• Decided: June 7, 2000
• Status: Published

Opinions

RODGERS, Senior Judge.

USX Corporation (Employer) petitions for review of an order of the Workers’ Compensation Appeal Board (Board) that affirmed as amended the order of a workers’ compensation judge (WCJ) that granted hearing loss benefits to William Way (Claimant).

Claimant began working for Employer in 1964 and continues to work for Employer presently. On August 4,1995, Claimant filed a claim petition alleging that he suffered an occupational hearing loss as a result of long term exposure to hazardous occupational noise and acoustic trauma. Employer denied the allegations and the case was assigned to a WCJ.

Claimant testified by way of deposition on his own behalf, outlining his job history and the types of noise to which he was exposed. He also submitted the deposition testimony and report of Anne A. McCar-ter, M.D., who examined Claimant on October 28, 1997. Dr. McCarter testified that Claimant sustained a 22.8 percent hearing impairment as calculated under the AMA Guides, which was caused by exposure to long term occupational noise. (WCJ’s Finding of Fact No. 8).

Employer offered into evidence a report authored by Lee Rowe, M.D., who opined that Claimant sustained a 24.4 percent sensorineural hearing impairment under the AMA Guides, but that he attributed the hearing loss to presbycusis.¹ Employer also submitted a report from Joseph Sataloff, M.D., who believed that the audi-ograms performed by Dr. McCarter and Dr. Rowe were not valid measurements of Claimant’s hearing loss.

In addition to accepting Claimant’s testimony as credible, the WCJ formulated the following pertinent findings of fact:

11. The testimony and opinions of Dr. McCarter are persuasive and accepted as credible, given the greater weight for belief over the opinions and testimony of Dr. Rowe and Dr. Sataloff.

Dr. McCarter’s opinion [sic] the Claimant has a 22.8% hearing impairment as calculated under the AMA guidelines caused by the Claimant’s long term exposure to hazardous, occupational noise while working for USX is credible. Dr. McCarter’s audiometric testing is reliable, accurate and further accepted as credible. When the opinions of Dr. Rowe and Dr. Sataloff conflict with the opinions of Dr. McCarter, Dr. McCar-ter’s observations on examination, audiological evaluations and audiometric testing and opinions are given the greater weight for belief.

12. The Claimant suffered a permanent binaural sensorineural hearing loss amounting to 22.8% caused by exposure to hazardous occupational noise while in the course and scope of employment with the Employer USX.

13. The Claimant did not have actual knowledge of his hearing loss and its relationship to his employment with the Employer until October 28, 1997 [date of Dr. McCarter’s examination].

(WCJ’s decision). Based on his findings, the WCJ granted Claimant’s petition, concluding that Claimant had proved that he sustained a 22.8 percent impairment caused by his exposure to noise at work. As part of the WCJ’s order, he directed the payment of 59.28 weeks of compensation to Claimant and 10% per annum interest on all deferred and unpaid compensation.² Although the WCJ did not specifically provide a date on which the interest should begin to accrue, Finding of Fact No. 13 was interpreted by Employer to mean that the operative date was October 28, 1997.

Employer appealed to the Board and raised a number of issues, including the contention that the WCJ’s findings were not supported by substantial evidence in that Employer can not be held liable for the portion of Claimant’s hearing loss that is not work-related, i.e., Claimant’s hearing loss as measured' by a bone conductive audiogram. Employer also alleged that the WCJ erred in awarding interest from October 28, 1997, the date on which Dr. McCarter examined Claimant.

After review, the Board essentially affirmed the WCJ’s order, but amended it to reflect an award of interest to begin March 7, 1995, a date which the Board inexplicably concluded fell twenty-one. days after Employer received notice by way of the filing of the claim petition on August 4, 1995.³ The Board then remanded the matter for a calculation of Claimant’s weekly wage and the corresponding weekly compensation rate for 1995.

Employer now appeals to this Court,⁴ arguing that the Board erred in concluding that: (1) Claimant was entitled to interest from March 7, 1995, and (2) Claimant was entitled to benefits for that portion of his hearing loss not causally related to his work.

Employer first contends that since the WCJ. found that Claimant, did not have actual knowledge of his hearing loss and its relationship to his work until October 28,1997, the date of Dr. McCarter’s examination, Claimant could not have satisfied his burden of proof at the time he filed his petition. In other words, Claimant did not have the requisite medical evidence to support his 22.8 percent hearing loss resulting from his noise exposure at work until the doctor so informed him. Thus, Employer argues that the Board’s decision to impose interest from the time Claimant filed his claim petition in 1995 is in error, as is any date earlier.

We first note that the hearing loss portion of Act 1 of 1995 (Act 1)⁵ does not contain any provision for the payment of interest. Therefore, we look to Section 406.1 of the Act,⁶ which provides that:

The first installment of compensation shall be paid not later than the twenty-first day after the employer has notice or knowledge of the employe’s disability. Interest shall accrue on all due and unpaid compensation at the rate of ten per centum per annum.

Despite the language of Section 406.1, referencing notice to the employer as the date that triggers the payment of compensation benefits, Employer relies on Carlettini v. Workers’ Compensation Appeal Board (City of Philadelphia), 714 A.2d 1113 (Pa.Cmwlth.1998), a disfigurement case, to support its position that notice via the claim petition was insufficient in a hearing loss case. The Carlettini court explained that:

[T]he purpose of statutory interest is not to penalize an employer; rather, it is to provide additional compensation to a claimant for the delay during which an employer has use of funds otherwise due to claimant. Thus, the imposition of statutory interest ... is solely dependent upon whether a right to compensation was established. Therefore, our inquiry initially focuses on if, and when, a claimant establishes a right to compensation. [Emphasis added and citations omitted.]

Id. at 1114-15. In order to determine when the claimant in Carlettini established his right to compensation, the court examined Section 306(c)(22) of the Act, 77 P.S. § 513(22), and set forth what constituted the claimant’s burden when seeking compensation for disfigurement. The court held that the claimant had not established his right to compensation until the WCJ viewed the scar, concluding that only at that point in time had the claimant carried his burden of proving permanency, and that as a result, interest only began to accrue from that date forward.

Based on Carlettini, Employer here contends that at the time Claimant filed his claim petition in 1995 he had not yet established his right to compensation. In fact, at that time Claimant did not yet know the extent of his hearing loss or that it was work-related because he had not received medical information that would satisfy his burden of proof. That information was not available to Claimant until Dr. McCarter examined him in 1997.

In response, Claimant argues that notice to Employer (filing of claim petition) is the operative date. Claimant also contends that Carlettini is not applicable because it is a disfigurement case. However, we note that the hearing loss provisions are a part of Section 306(c) of the Act, a section that establishes a schedule of compensation for particular classes of injuries, namely, specific loss injuries, which include disfigurement injuries like the one at issue in Car-lettini and hearing loss cases like the one presently before this Court. Therefore, we conclude that the court’s analysis in Carlettini applies to hearing loss cases as well as disfigurement cases. This is particularly so because these specific loss injuries result in awards not intended to compensate a claimant for a loss of earning power.

We now turn our attention to a claimant’s burden of proof under the hearing loss provisions of Act 1. In order to establish a right to compensation, a claimant has the burden of proving that he has sustained a permanent loss of hearing that is medically established as an occupational hearing loss caused by long-term exposure to hazardous occupational noise. Section 306(e)(8)(i) of the Act, 77 P.S. § 613(8)©. Apparently, Claimant believed he suffered from a work-related hearing loss in 1995 and filed his claim petition at that time. Although the filing of the petition constituted notice to Employer that Claimant was seeking compensation benefits for his loss of hearing, it did not establish Claimant’s right to compensation. Therefore, pursuant to Carlettini, only when Claimant had evidence that he had a permanent, work-related loss of hearing was compensation due. Until that time Employer would not know if the loss would be compensable. Only from that point forward would interest become due on any unpaid compensation.

Moreover, Employer concedes that Socha v. Workers’ Compensation Appeal Board (Bell Atlantic PA), 725 A.2d 1276, 1281 (Pa.Cmwlth.1999), petition for allowance of appeal granted, 560 Pa. 753, 747 A.2d 373 (241 W.D. Alloc. Dkt. 1999, November 8, 1999), holds that “[a] claimant cannot be charged with the knowledge that he or she has suffered a compensable partial hearing loss until the claimant is informed by a physician or other health care provider that the permanent binaural hearing impairment may exceed, or in fact does exceed,- ten percent....”⁷ Although in Socha the court resolved an issue whether timely notice was provided to the employer, this statement of the law applies to the issue presently before this Court. This is so because the Carlettini court indicated that a claimant’s injury could be deemed compensable at a time earlier than the date on which the WCJ viewed the scar. The Carlettini court recognized that the claimant could have presented medical evidence that may have established an earlier date of permanency, rather than waiting for the WCJ’s determination upon viewing the scar.

Accordingly, we conclude that the Board incorrectly amended the WCJ’s order. We hold that pursuant to Socha and Carlettini Claimant established a compensable hearing loss on October 28, 1997, the date of Dr. McCarter’s examination, and that interest began to accrue as of that date.

Employer’s second argument centers on the difference between a sensorineural hearing loss as measured by a pure tone air conduction audiogram and a conductive hearing loss as measured by a bone conduction audiogram, the latter of which Dr. McCarter acknowledged on cross-examination could not be the result of an occupationally induced hearing loss.⁸ In other words, Employer argues that Dr. McCarter overstated Claimant’s work-related hearing loss, because she failed to deduct for a non-work-related conductive hearing loss. Moreover, because Section 306(c)(8)(vi) of Act 1, 77 P.S. § 51S(8)(vi), provides that an employer is “liable only for the hearing impairment caused by such employer,” Employer contends that the WCJ erred in accepting the 22.8 percent hearing impairment without deducting the amount of impairment not attributed to the work-related cause.⁹

Based on Dr. McCarter’s testimony, which was found- credible, the WCJ formulated Finding of Fact No. 8 that we referenced above and quote here in its entirety:

8. The testimony of Anne McCarter, M.D., has been reviewed and considered in its entirety. Dr. McCarter, based on her October 28, 1997 evaluation of the Claimant, obtained a occupational history and elicited presenting complaint as well as performing audiometric testing of the Claimant, indicating the Claimant had a binaural sensorineural hearing loss which amounted to a 22.8% hearing impairment as calculated under the AMA guidelines. Dr. Carter opined that Claimant’s permanent sensorineural hearing loss was caused by long term occupational noise exposure while the Claimant was working for the Employer USX.

Dr. McCarter further opined that Claimant suffered from a conductive hearing loss which was not work related and which was not significant conceding the Claimant could have an 18.5% hearing impairment if the scores in his bone conductive audiogram were used instead of scores of his pure tone air conduction audiogram.[¹⁰]

(WCJ’s decision).

Essentially, Employer argues that deductions for conductive hearing loss are permitted under Act 1. The court’s reasoning in USX Corporation v. Workers’ Compensation Appeal Board (Rich), 727 A.2d 165 (Pa.Cmwlth.1999), petition for allowance of appeal granted, 560 Pa. 715, 743 A.2d 925 (268 W.D. Alloc. Dkt., September 28, 1999), is instructive on this issue. The Rich court held that the plain language of Act 1 does not allow for an age-related deduction from the total percentage of healing impairment. In so holding, the Rich court discussed the interpretation of subclause (vi), reasoning that that section upheld the “principle that an employer is responsible for a disability caused by a combination of work-related and non-work-related factors if the work-related factors were a substantial contributing factor to the injury_” Id. at 166. The Rich court did note, however, that “if the employer can show that the hearing loss was caused by a non-work-related injury or disease, it is not liable for that portion of the hearing loss_” Id. at 167.

After reviewing the record, we conclude that Employer’s reliance on Dr. McCar-ter’s testimony to prove a non-work-related cause for hearing loss is misplaced. Even if we accept the WCJ’s characterization of the doctor’s testimony, Employer overlooks the WCJ’s finding that Claimant’s conductive hearing loss is not significant. Moreover, the doctor’s testimony in which she opines that Claimant sustained a 22.8 percent sensorineural hearing loss caused by long-term occupational noise exposure is the measurement accepted by the WCJ. As this Court has often stated, the WCJ is the sole arbiter of questions of credibility and may accept or reject the testimony of any witness in whole or in part. General Electric Co. v. Workers’ Compensation Appeal Board (Rizzo), 737 A.2d 852 (Pa.Cmwlth.1999). Therefore, we conclude that the WCJ did not err in accepting this testimony as the basis for his findings of fact and the resulting conclusions. Employer simply failed to prove, that a non-work-related cause impaired Claimant’s hearing to an extent that required a deduction.

Accordingly, we vacate the Board’s order with regard to its award of interest. Rather, we order the award of interest on any unpaid compensation, which became due after Claimant’s examination by Dr. McCarter, i.e., as of October 28, 1997. In all other respects, we affirm the Board’s order.

ORDER

NOW, June 7, 2000, the order of the Workers’ Compensation Appeal Board, at No. A99-0383, .dated August 11, 1999, is vacated with regard to its award of interest. Interest is awarded on any unpaid compensation that became due as of October 28, 1997. In all other respects, the Board’s order is affirmed.

1 . Presbycusis is defined as the "loss of ability to perceive or discriminate sounds as a part of the aging process....” Stedman’s Medical Dictionary 1254 (25 th ed.1990).

2 . Recognizing that Employer failed to submit a wage statement during the proceedings, in his decision, the WCJ required Employer to submit a wage statement that would form the basis for the parties' determination of the rate of compensation to be paid to Claimant.

3 . If, as the WCJ states, the claim petition was received by the Bureau of Workers’ Compensation on August 4, 1995, twenty-one days later would fall on August 25,1995, not March 7, 1995, a date months prior to the filing of the claim petition. In fact, Claimant avers in his claim petition that his date of injury was July 26, 1995, a date that falls more than four months after the date the Board ordered the award of interest to begin.

4 . Our scope of review in a workers’ compensation appeal is limited to determining whether an error of law was committed, constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704. General Electric Co. v. Workers’ Compensation Appeal Board (Bower), 734 A.2d 492 (Pa.Cmwlth.1999), petition for allowance of appeal denied, 561 Pa. 679, 749 A.2d 473 (803 M.D. Alloc. Dkt. 1999, January 5, 2000).

5 . Section 306(c)(8) of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 513(8). This section was amended by Act 1, Act of February 23,. 1995, P.L. 1, 77 P.S. § 513(8), and contains the hearing loss amendments, which apply to the claim presently before this Court.

6 . Section 406.1 was added by the act of February 8, 1972, P.L. 25, and was amended by the act of July 2, 1993, P.L. 190, 77 P.S. § 717.1.

7 . A calculation of hearing loss equal to or less than ten percent is not compensable. Section 306(c)(8)(iii) of Act 1, 77 P.S. § 513(8)(iii).

8 . Dr. McCarter testified that, the air conduction testing, which uses headphones, tests the function of the auditory nerve and the conduction of sound through the eardrum and the little bones that conduct sound to the nerve. Dr. McCarter also explained that the bone conduction testing evaluates whether a difference exists between the air testing and the bone testing, which would show an abnormality in the conductive mechanisms themselves.

9 .The complete text of Section 306(c)(8)(vi) of Act 1 states that:

(vi) An employer shall be liable 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.

10 . Although Claimant does not take issue with the WCJ's statement of Dr. McCarter’s opinion, we note that the second paragraph of Finding of Fact No. 8 mischaracterizes Dr. McCarter’s testimony. On at least five occasions during her deposition, the doctor stated that she did not believe that Claimant sustained a conductive hearing loss. She further explained that any differences between air test results and bone conduction test results fall within the realm of error of the test.