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06/13/97 ROBERT BIBLE v. COMMONWEALTH PENNSYLVANIA

June 13, 1997

ROBERT BIBLE, JOSEPH SWAGER, JAMES RICHTER, ROY TIERNAN, HOMER KIFER, RICHARD ANSELL, JOHN W. LOVELACE, FLOYD HERSHBERGER, EDWIN LUBINSKI, AND CASPER HRACHO, INDIVIDUALLY AND ON BEHALF OF ALL MEMBERS OF THE CLASS OF CLAIMANTS WHO ARE SIMILARLY SITUATED, APPELLEES
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY AND JOHNNY BUTLER, ACTING SECRETARY OF THE DEPARTMENT OF LABOR AND INDUSTRY, USX CORPORATION, DIAL CORPORATION, TELEDYNE VASCO, SHENANGO, INC., AND LUKENS STEEL CO., APPEALS OF: COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY AND JOHNNY J. BUTLER [NO. 65]; USX CORPORATION [NO. 69]; DIAL CORPORATION [NO. 71]; AND LUKENS STEEL COMPANY [NO. 73]



Appeal from Order of the Commonwealth Court dated August 4, 1995, at No. 77 M.D. 1995. Before: Flaherty, Zappala, Cappy, Castille, Nigro, JJ. Former Chief Justice Nix and Madame Justice Newman did not participate in the consideration or decision of this case.

The opinion of the court was delivered by: Zappala

JUSTICE ZAPPALA

DECIDED: JUNE 13, 1997

The Appellees commenced this action in Commonwealth Court by filing a petition for review in the nature of a complaint in equity and for declaratory judgment. They asserted that Act 1 of 1995 was unconstitutional insofar as it retroactively amended the Workers' Compensation Act provisions regarding compensation for loss of hearing. The court granted summary judgment in their favor. We now reverse.

Prior to Act 1 of 1995, the Workers' Compensation Act provided in the "Schedule of compensation for disability from permanent injuries of certain classes,"

For all disability resulting from permanent injuries of the following classes, the compensation shall be exclusively as follows:

(8) For the complete loss of hearing, in both ears, sixty-six and two-thirds per centum of wages during two hundred sixty weeks; for complete loss of hearing in one ear, sixty-six and two-thirds per centum of wages during sixty weeks.

Act of June 2, 1915, P.L. 736, art. III, § 306(c)(8), as amended, 77 P.S. § 513(8). In Workmen's Compensation Appeal Board v. Hartlieb, 465 Pa. 249, 348 A.2d 746 (1975), we rejected a literal and absolute interpretation of the term "complete" and held that a claimant seeking compensation under this provision need only establish that his loss of hearing was complete "for all practical intents and purposes."

Following Hartlieb, compensation claims for specific loss of hearing turned largely on determination of a claimant's ability to function in his usual social, work, and family settings, as described in his testimony and his accounts to his physician. The relatively subjective nature of such evidence produced results that were seemingly inequitable when objective factors were compared.

For example, in Iervolino v. Workmen's Compensation Appeal Board, 120 Pa. Commw. 193, 548 A.2d 384 (Pa. Commw. 1988), the claimant's physician testified that the claimant had a 55% hearing loss in one ear and a 60% loss in the other. However, he also testified that although the claimant would not be able to hear a whisper or soft sounds, "'he would get along well and is not incapacitated too much.'" Id. On the basis of this testimony, the referee concluded that the hearing loss was not a complete loss for all practical intents and purposes, and denied benefits. The Board and Commonwealth Court affirmed.

In contrast, the claimant in Babcock & Wilcox v. Workmen's Compensation Appeal Board, 105 Pa. Commw. 539, 524 A.2d 1080 (Pa. Commw. 1987), showed only a 16.6% hearing impairment, but the referee awarded compensation for complete loss of hearing and the Board and Commonwealth Court affirmed. The referee's Conclusion was based on a physician's testimony, which in turn was based on the subjective difficulties expressed by the claimant that he could not hear or understand conversation on the telephone or in social or public gatherings.

In LTV Steel Co. v. Workmen's Compensation Appeal Board (Verez), 153 Pa. Commw. 470, 621 A.2d 1146, 1148 (Pa. Commw. 1993), Commonwealth Court made note of these difficulties, observing that

A claimant with a relatively small loss, but with a sympathetic referee, may be awarded compensation while a claimant with a greater loss, as measured objectively, may be denied.

In Pettola v. Workmen's Compensation Appeal Board (Sharon Steel Corp.), 168 Pa. Commw. 426, 650 A.2d 1172 (Pa. Commw. 1994), and Kuzniar v. Workmen's Compensation Appeal Board (Sharon Steel Corp.), 168 Pa. Commw. 508, 650 A.2d 1212 (Pa. Commw. 1994), the court went so far as to suggest that the legislature reexamine the provisions dealing with occupational hearing loss.

Section 2 of Act 1 of 1995 rewrote the paragraph of the specific loss schedule that dealt with loss of hearing. Before the amendment, hearing loss was compensable only if it was "complete." After the amendment, partial hearing loss is also compensable as a specific loss. The amount of compensation remains 66 2/3 per cent of wages, but the duration of the payments is calculated as a factor of 260 weeks in the case of loss caused by long-term exposure to occupational noise or loss in both ears due to other causes such as acoustic trauma or head injury, or as a factor of 60 weeks in the case of loss in one ear due to causes such as acoustic trauma or head injury. The duration of compensation is determined by multiplying the maximum number of weeks by the percentage of hearing impairment as demonstrated by audiogram testing using the American Medical Association's Guides to the Evaluation of Permanent Impairment. Thus a claimant whose audiogram test showed a 30% impairment in both ears would receive two-thirds of his wage for 78 weeks (30% of 260 weeks); a claimant showing a 30% impairment in one ear would receive two-thirds of his wage for 18 weeks (30% of 60 weeks) if the loss was caused by a sudden loud noise, a blow to the head, or some occupational source other than long-term exposure.

The legislature specified in Section 3(2) of Act 1 of 1995 that these changes "shall apply retroactively to all claims existing as of the effective date of this act for which compensation has not been paid or awarded." In bringing this action, the appellees alleged that each of the named plaintiffs had been subjected to occupational noise and had filed a claim asserting a complete loss of hearing for all practical intents and purposes that was pending when Act 1 of 1995 became effective. They argued that application of the Act to them would constitute an impairment of the obligation of contracts in violation of Article I, Section 17 of the Pennsylvania Constitution and Article I, Section 10 of the United States Constitution. They argued in the ...


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