Lloyd F. Engle, Jr., J. Craig Kuhn, Kuhn, Engle, Blair & Stein, Pittsburgh, for appellant.
William L. Standish, IV, Reed, Smith, Shaw & McClay, Pittsburgh, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts and Manderino, JJ., join in this opinion. Roberts, J., filed a concurring opinion in which Manderino, J., joins. Pomeroy, J., filed a dissenting opinion.
This is a case of first impression within this Commonwealth. In it, we are asked to determine whether workmen's compensation benefits may be awarded for a partial loss of hearing suffered by an employee by reason of protracted exposure to noise in the usual course of employment.
On September 11, 1969, the claimant, Darious E. Hinkle, filed a petition for compensation with the Workmen's Compensation Board, alleging a 62% loss of hearing in his left ear and a 32% loss of hearing in his right ear. He assigned May 9, 1969, as the date of the accident and excess noise at his place of employment as the cause of the injury. While conceding that he had lost no time from work on account of his injury, except for a one-hour period when he underwent a hearing examination, Hinkle nevertheless contended he had a right to a compensation award for a partial disability. He further claimed medical expenses and asked that the disability award be suspended, pending such time as the disability was reflected in future lost earnings.
At the subsequent hearing before the Workmen's Compensation Referee, it was established that for approximately twenty years, Hinkle had been employed as a mechanic in the can-making operations of the appellee, H. J. Heinz Company [Heinz]. Testimony indicated that the noise in the large room where Hinkle worked was at a high level, a level which increased over the years due to the addition of more machinery. There was no accoustical material used in the large room, although after several employee complaints, Heinz did offer ear protectors to those employed in the can-making operation. However, before Hinkle could present medical testimony establishing the hearing loss resulted from the working conditions,
the Referee, on motion of counsel for Heinz, dismissed his claim. The Referee found: (1) that Hinkle had failed to prove he had sustained an accident within the meaning of The Pennsylvania Workmen's Compensation Act;*fn1 and (2) that the type of injury complained of is specifically excluded from compensation benefits under The Pennsylvania Workmen's Compensation Act and/or The Pennsylvania Occupational Disease Act.*fn2
Both the Workmen's Compensation Board and the Court of Common Pleas of Allegheny County sustained the Referee's dismissal of Hinkle's claim. Hinkle then appealed to the Commonwealth Court and was again denied relief. The Commonwealth Court, while recognizing that a partial loss of hearing is compensable under the Workmen's Compensation Act,*fn3 nevertheless determined that Hinkle had failed to prove a compensable accident within the meaning of the Act. We then granted allocatur.
The basic issue before this Court is whether or not Hinkle has set forth sufficient facts to warrant the conclusion that he sustained personal injury by accident arising out of and in the course of his employment. The intended distinction between those injuries which are compensable and those which are not is divided by a line which, at times, ...