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AUBREY O. WINKELMAN v. COMMONWEALTH PENNSYLVANIA (06/09/81)

decided: June 9, 1981.

AUBREY O. WINKELMAN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND AMERICAN CAN CO., RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Aubrey O. Winkelman v. American Can Company, No. A-76335.

COUNSEL

Marc S. Jacobs, Galfand, Berger, Senesky, Lurie and March, for petitioner.

Ronald F. Bove, Swartz, Campbell & Detweiler, for respondent, American Can Company.

Judges Blatt, Craig and Williams, Jr., sitting as a panel of three. Opinion by Judge Blatt. Judge Wilkinson, Jr. did not participate in the decision in this case.

Author: Blatt

[ 59 Pa. Commw. Page 564]

The petitioner*fn1 challenges the Board's*fn2 determination that he has not suffered a complete loss of hearing in his left ear.*fn3

In May of 1976, the petitioner filed a claim petition alleging that he suffered a complete loss of hearing in both ears as a result of his employment with American Can Company. Hearings were held and depositions were introduced, after which the referee denied the claim for benefits finding that the petitioner had not lost his hearing for all practical intents and purposes.*fn4 The Board remanded the case to the referee for the taking of additional testimony, but no new evidence was presented and the referee again dismissed the

[ 59 Pa. Commw. Page 565]

    claim. Upon further appeal, the Board upheld the denial of benefits, and this petition for review attacks that denial only as it applies to the hearing in the left ear.

The petitioner argues that the referee's findings cannot be sustained without a capricious disregard of competent evidence,*fn5 and he claims that the evidence established that he had lost the hearing in his left ear for all practical intents and purposes.

The referee made the following relevant findings of fact:

4. The [petitioner] was employed by the Defendant, American Can Company, since 1970 and last worked for them on June 27, 1976.

5. During the course of his employment with the Defendant, he was subjected to some noise. The amount of that noise is ...


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