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CYCLOPS CORPORATION v. WORKMEN'S COMPENSATION APPEAL BOARD (SRAY (05/27/88)

decided: May 27, 1988.

CYCLOPS CORPORATION, CYTEMP SPECIALTY STEEL DIVISION, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (SRAY, JR.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of John Sray, Jr. v. Universal Cyclops, No. A-89833.

COUNSEL

Neal R. Brendel, with him, Jeffrey T. Barbour, Kirkpatrick & Lockhart, for petitioner.

Alexander J. Pentecost, with him, Amiel B. Caramanna, Jr., for respondent, John Sray, Jr.

President Judge Crumlish, Jr., and Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Senior Judge Blatt.

Author: Blatt

[ 116 Pa. Commw. Page 421]

Cyclops Corporation, Cytemp Specialty Steel Division (petitioner) petitions for our review of the opinion

[ 116 Pa. Commw. Page 422]

    and order of the Workmen's Compensation Appeal Board (Board) affirming the decision of the referee and adopting his findings of fact. The referee awarded compensation to John Sray, Jr. (claimant) for loss of hearing in both ears pursuant to Section 306(c)(8) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 513(8). We affirm.

The claimant was employed by the petitioner from 1942 through June 30, 1983. On April 18, 1983, a hearing test was conducted by the petitioner, after which a note was sent to the claimant indicating that he had a hearing loss and that he should be checked by a doctor. He was subsequently examined by Dr. Michael C. Bell on August 24, 1983. Dr. Bell's diagnosis was that the claimant has a sensorineural hearing loss caused by his total and cumulative exposure to a heavy noise level at work. The petitioner was notified of this condition on October 28, 1983.

The referee relied on the unequivocal testimony of Dr. Bell in finding that "as of August 24, 1983, claimant had lost the permanent use of hearing in both ears for all practical intents and purposes as a result of said total and cumulative exposure while employed by the selfinsured defendant." Referee's Finding of Fact No. 5, Reproduced Record (R.R.) at 105a. The referee, therefore, awarded compensation beginning on that date, i.e. August 24, 1983. The Board stated in its opinion that "[t]he Referee found the hearing loss occurred on August 24, 1983. The notice was given within 120 days of the injury and as such complies with Section 311 of the Act." Board's Opinion at 2, R.R. at 110a.*fn1

[ 116 Pa. Commw. Page 423]

Section 311 of the Act, 77 P.S. § 631, requires notice to be given to the employer within 120 days of the occurrence of the injury in order for compensation to be allowed. Section 311 further pertinently provides that:

[I]n cases of injury . . . in which the nature of the injury or its relationship to the employment is not known to the employe, the time for giving notice shall not begin to run until the employe knows, or by the exercise of reasonable diligence should know, of the ...


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