Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Charles Arthur Straub v. City of Erie, No. A-91125.
Frank D. Magone, with him, J. Scott Leckie, Yablonski, Costello & Leckie, for petitioner.
Joseph J. May, Plate, Shapira, Hutzelman, Berlin, May, Walsh and Brabender, for respondent, City of Erie.
Judges Barry and Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Colins.
[ 114 Pa. Commw. Page 226]
Charles Arthur Straub (petitioner) petitions for review of an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision and order dismissing petitioner's claim for failure to provide notice of his injury to his employer within 120 days as required by Section 311 of The Pennsylvania Workmen's Compensation Act (Act).*fn1 We reverse.
Petitioner was employed as a sewer worker for thirty-two years with the City of Erie (employer). During this time, petitioner was continually exposed to extremely noisy construction machinery. Petitioner first sought medical attention in 1968 when he noticed his poor hearing. His hearing became progressively worse, so in 1977 and 1979, petitioner sought unsuccessfully to be fitted with hearing aids. Petitioner also attended lip-reading classes. In 1977, petitioner was informed by his physician, Dr. MacLaughlin, that his hearing loss was due to his exposure to noisy environments, but failed to state the particular source of such noise.
In 1983, petitioner was diagnosed as having severe sensory neural hearing loss involving speech frequencies in both ears by Dr. Michael C. Bell, a Board-certified Otolaryngologist. Furthermore, Dr. Bell stated that petitioner had, for all intents and purposes, suffered a loss of hearing in both ears as a result of the prolonged exposure to the noise of industrial machinery while working for employer. Petitioner notified the employer of his work-related hearing loss on October 14, 1983, and on November 7, 1983, filed a petition for hearing loss with the compensation authorities. Prior to visiting Dr. Bell, in February of 1981, petitioner visited Dr. Richard Maloney, another Board-certified Otolaryngologist. Dr. Maloney's deposition testimony, presented
[ 114 Pa. Commw. Page 227]
on behalf of the employer, revealed that he informed petitioner his hearing loss was related to noise and further exposure would cause additional loss of hearing. Furthermore, Dr. Maloney suggested that petitioner wear ear protectors at work to avoid further hearing loss.
The employer was notified of petitioner's claim on November 10, 1983, and was informed that an answer may be filed within fifteen days from that date. An answer was filed by the employer; however, it was filed on December 5, 1983, not within the fifteen day period.
At a hearing before the referee on February 14, 1984, petitioner testified that he did not know that his hearing loss was work-related until he had spoken to his attorney about Dr. Bell's report. Also at this hearing, petitioner's counsel requested that the employer be prevented from presenting a notice defense to the claim because it had failed to file a timely answer under Section 416 of the Act.*fn2 The referee stated that, "we will proceed with the case and if that becomes an issue, then I will ask for briefs. . . ." On December 23, 1985, the referee dismissed the claim, concluding that the petitioner knew or should have known of his hearing loss in 1981 and, therefore, his claim was untimely filed under Section 311 of the Act.
The referee's decision made no mention of petitioner's motion to exclude the employer's defense for failure to file a timely answer. The Board affirmed in its November 21, 1986 order stating that the referee had correctly concluded timely notice was not given by petitioner. The Board also made no mention of petitioner's argument concerning the employer being precluded from presenting a defense for failure to file an ...