Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

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

COMMONWEALTH COURT OF PENNSYLVANIA


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 undetermined although some of it was loud.

6. The [petitioner] had sustained loss of hearing primarily of high tones although he has word discrimination of 72% in the left ear and 68% in the right ear.*fn6

7. The Referee does not believe that this represents a loss of hearing for all intents and purposes and believes that the credible evidence submitted does not represent testimony, which supports a finding of the loss of hearing for all intents and purposes, and therefore the petition should be dismissed.

[ 59 Pa. Commw. Page 566]

To establish a loss of hearing for all intents and purposes, it is not necessary that the petitioner prove that his ear is totally useless, but we believe that he must demonstrate that he has lost so much of his hearing that he cannot use his ear in the manner that nature intended. See Workmen's Compensation Appeal Board v. Hartlieb, supra n. 4.

After careful consideration of the record, we cannot say that the referee capriciously disregarded competent evidence by finding that there was no loss of hearing for all practical intents and purposes. The record discloses that it is possible for the petitioner to engage in a conversation with a single person in a quiet setting, although he would have much greater difficulty in understanding a conversation in a crowded room with more background noise. There can be no doubt that he has suffered a significant hearing impairment, but it is for the referee, not for this Court, to determine the extent of the loss in light of the conflicting testimony, and we must defer to the referee's resolution of questions of credibility and of the weight to be given the evidence produced. Workmen's Compensation Appeal Board v. Adley Express, 20 Pa. Commonwealth Ct. 251, 340 A.2d 924 (1975).*fn7

We will, therefore, affirm the Board's denial of benefits.

Order

And Now, this 9th day of June, 1981, the order of the Workmen's Compensation Appeal Board in the above-captioned matter is affirmed.

Judge Wilkinson, Jr. did not participate in the decision in this case.

Disposition

Affirmed.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.