Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Darious E. Hinkle v. H.J. Heinz Company, No. SA 932 of 1970.
Lloyd F. Engle, Jr., with him Kuhn, Engle and Blair, for appellant.
William L. Standish, with him Kathleen A. Merry and Reed, Smith, Shaw & McClay, for appellee.
Judges Kramer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Kramer.
This is an appeal from an order of the Court of Common Pleas of Allegheny County, dismissing the appeal of Darious E. Hinkle (Hinkle) from an order of the Workmen's Compensation Board (Board) affirming its Referee's order of disallowance.
For a period of approximately twenty years prior to the date of the filing of a claim in this case, Hinkle was employed by the H.J. Heinz Company (Heinz) as a bodymaker mechanic, engaged in the work of making the body of tin cans. The record clearly shows that the noise in the large room (approximately 500 feet long by 200 feet wide, containing numerous machines of various kind) is at a high level, and that over the years of Hinkle's employment the noise has increased with the addition of more machinery. It was stipulated that, as a result of his exposure to this noise in the course of his employment, Hinkle had sustained a 62% loss of hearing in his left ear and a 32% loss of hearing in his right ear. The record further indicates that there is no acoustical material used in the large room where Hinkle worked, and that, after complaints, Heinz had offered ear protecters (much like the earmuffs currently used at airports) to its employees who worked in the can-making room.
To the date of the hearing in this case Hinkle had lost no time from his work on account of his hearing problem, except for a one-hour period which he utilized for the purpose of taking a hearing examination. Hinkle also presented the testimony of a fellow worker
who testified to a loss of hearing alleged to have been caused by employment in the same can-making operation of Heinz, and the testimony of a union official who was instrumental in obtaining the earmuffs. While acknowledging that he had lost no earnings or earning power as a result of his partial loss of hearing, Hinkle, nevertheless, contends that he has a right to a compensation award at this time for a partial disability. He admits the extent of his disability is as yet not fully determined because Hinkle is continuing to work at the same job for Heinz. In addition he claims medical expenses, and further that the award for disability should be suspended until such time as his disability is reflected in a loss of earnings.
Hinkle candidly admits that his claim for workmen's compensation benefits for a loss of partial hearing is a case of first impression in this Commonwealth. The Referee, the Board, and the court below all denied his claim for the reason that he had not proven a compensable accident of the type encompassed within the definition of "unusual pathological result of an ordinary condition of work," within the provisions of the Workmen's Compensation Act.
Hinkle contends steadfastly that his partial loss of hearing is a permanent partial disability covered by Section 306(b) of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 512. This section, in pertinent part, reads as follows: "For disability partial in character (except the particular cases mentioned in clause (c)) sixty-six and two-thirds per centum of the difference between the wages of the injured employe . . . and the earning power of the employe thereafter. . . . This compensation shall be paid during ...