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CHARLES MARTIN v. WORKMEN'S COMPENSATION APPEAL BOARD (JONES & LAUGHLIN STEEL CORPORATION) (11/20/87)

decided: November 20, 1987.

CHARLES MARTIN, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (JONES & LAUGHLIN STEEL CORPORATION), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Charles Martin v. Jones & Laughlin Steel Corp., No. A-88531.

COUNSEL

James D. Strader, Caroselli, Spagnolli & Beachler, for petitioner.

Joseph S. Weimer, with him, Fred C. Trenor, Meyer, Darragh, Buckler, Bebenek & Eck, and Daniel R. Minnick, for respondent.

Judges MacPhail and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 111 Pa. Commw. Page 201]

Charles Martin (Petitioner) appeals from the dismissal of his workmen's compensation petition for hearing

[ 111 Pa. Commw. Page 202]

    loss as time barred under Sections 311 and 315 of The Pennsylvania Workmen's Compensation Act, 77 P.S. ยงยง 631 and 602 respectively.*fn1 We affirm the order of the Workmen's Compensation Appeal Board (Board) dismissing the petition. At the time of the referee's hearing, Petitioner was a 61 year old man who had been employed in the mill of Jones and Laughlin Steel Corporation for 34 years. He testified that he first began experiencing hearing problems in 1974 which progressively grew worse to the point he had to purchase a hearing aid for his left ear in 1976. In 1979 he was examined by his treating physician who informed him that his hearing loss was work-related and prescribed hearing aids for both ears. Petitioner testified that prior to purchasing hearing aids in 1979 he could not hear a telephone, television or radio without amplification, or carry on a conversation without reading lips. Petitioner continued to work at Jones & Laughlin Steel Corporation, finally retiring in March of 1983. He was subsequently examined again by his treating physician and filed this claim petition on March 5, 1984.

The referee heard testimony by Claimant and his treating physician. The treating physician stated that the audiometric studies he had performed indicated a severe sensorineural hearing loss, but that the hearing was as poor in 1979 as it was in 1983. The physician stated that the hearing loss was progressive but on cross-examination admitted it was "poor today, a little poorer, but it was poor in 1979." N.T. (5/11/84) 62a. The referee made specific findings of fact that the Petitioner had, as a result of exposure during the course of his employment, lost the use of hearing in both ears for all practical intents and purposes on March 9, 1979; that he was advised by his treating physician on this date

[ 111 Pa. Commw. Page 203]

    that his loss was occupationally related; that no notice of the said hearing loss had been given to the employer until April 18, 1983; and that consequently his claim petition was time barred.

Petitioner cites Dana Corporation v. Workmen's Compensation Appeal Board (Savage), 75 Pa. Commonwealth Ct. 474, 462 A.2d 900 (1983) for the proposition that a hearing loss which is progressive in nature is not time barred if filed within three years of the time from which a claimant is made aware that his hearing is totally lost for all practical intents and purposes. This is certainly an accurate statement of the law. However, in Dana, involving two claimants with nearly identical cases, there was medical testimony establishing the progressive nature of the loss, and neither of the Claimants was examined by a physician ...


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