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VARE BROTHERS AND EMPLOYERS INSURANCE WAUSAU v. WORKMEN'S COMPENSATION APPEAL BOARD (CHIARADONNA) (08/20/85)

decided: August 20, 1985.

VARE BROTHERS AND EMPLOYERS INSURANCE OF WAUSAU, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (CHIARADONNA), RESPONDENTS. ORLANDO CHIARADONNA, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (VARE BROTHERS AND EMPLOYERS INSURANCE OF WAUSAU), RESPONDENTS



Appeals from the Order of the Workmen's Compensation Appeal Board in the case of Orlando Chiaradonna v. Vare Brothers, No. A-84709.

COUNSEL

Frank J. Rubinate, with him, James K. Martin, for petitioners.

Howard Farber, for respondent, Orlando Chiaradonna.

Judges Rogers, Barry and Palladino, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 91 Pa. Commw. Page 227]

Vare Brothers, the employer, and Orlando Chiaradonna, the worker, has each filed a petition for review of an order of the Workmen's Compensation Appeal Board which (1) affirmed a referee's award of specific loss benefits to the worker for the complete loss of hearing in both ears pursuant to Section 306(c) of The Pennsylvania Workmen's Compensation Act (Act),*fn1 77 P.S. § 513(8), and (2) reversed the referee's award of counsel's fees against the employer.

The worker's employment was as a laborer. In January, 1979, the worker and a co-worker, described as the lead man on the job, were using jackhammers to break concrete at the bottom of a seven foot deep pit when the worker experienced a sudden loss of hearing in both ears. He informed the co-worker of this and left the pit. After about ten minutes, the hearing in the worker's right ear substantially returned; he continued unable to hear in his left ear.

The worker filed a claim petition for compensation averring that the use of a jackhammer in the course

[ 91 Pa. Commw. Page 228]

    of his employment resulted in the complete and permanent loss of hearing in his left ear and a permanent high frequency loss of hearing in his right ear. The referee, after hearing, awarded the worker (1) benefits for "complete loss of hearing in both ears"; (2) benefits for a ten week healing period; (3) twenty percent penalties for unreasonable delay; and (4) twenty percent attorney's fees against the employer for unreasonable contest. The board, as mentioned, affirmed the referee's award of benefits for complete loss of hearing in both ears, but reversed the award of benefits for a ten week healing period, the award of twenty percent penalty for delay, and the award of twenty percent for attorney's fees.

The employer challenges the board's award of compensation for complete loss of hearing. The worker concedes that the board properly reversed the award of benefits for a healing period and the award of a penalty for delay, but argues that the board improperly reversed the referee's award of attorney's fees.

The employer alleges that the referee's award of benefits for the worker's complete loss of hearing in both ears should be overturned because (1) the worker failed to give notice of his injury within 120 days of its occurrence as required by Section 311 of the Act, 77 P.S. § 631; (2) there is no evidence that the worker has experienced a complete loss of hearing in both ears because he can hear by his right ear; and (3) the record contains no evidence that the worker's loss of hearing in his left ear was work-related.

Section 311 of the Act, 77 P.S. § 631, provides in pertinent part, that:

Unless the employer shall have knowledge of the occurrence of the injury, or unless the employe or someone in his ...


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