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08/05/97 DONALD ANASTASIO v. WORKMEN'S COMPENSATION

August 5, 1997

DONALD ANASTASIO, JAMES BENDER, RONALD BOCHIS, LEONARD BRUDER, RONALD DIEROLF, WILLIAM FEHR, WILBUR HERB, ALBERT RANDIS, ROBERT WAWRZYNIAK, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (NGK METALS CORPORATION), RESPONDENT; NGK METALS CORPORATION AND TOKIO MARINE AND FIRE INSURANCE COMPANY, PETITIONERS V. WORKMEN'S COMPENSATION APPEAL BOARD (ANASTASIO), RESPONDENT; NGK METALS CORPORATION AND TOKIO MARINE AND FIRE INSURANCE COMPANY, PETITIONERS V. WORKMEN'S COMPENSATION APPEAL BOARD (BENDER), RESPONDENT; NGK METALS CORPORATION AND TOKIO MARINE AND FIRE INSURANCE COMPANY, PETITIONERS V. WORKMEN'S COMPENSATION APPEAL BOARD (BOCHIS), RESPONDENT; NGK METALS CORPORATION AND TOKIO MARINE AND FIRE INSURANCE COMPANY, PETITIONERS V. WORKMEN'S COMPENSATION APPEAL BOARD (BRUDER), RESPONDENT; NGK METALS CORPORATION AND TOKIO MARINE AND FIRE INSURANCE COMPANY, PETITIONERS V. WORKMEN'S COMPENSATION APPEAL BOARD (DIEROLF), RESPONDENT; NGK METALS CORPORATION AND TOKIO MARINE AND FIRE INSURANCE COMPANY, PETITIONERS V. WORKMEN'S COMPENSATION APPEAL BOARD (FEHR), RESPONDENT; NGK METALS CORPORATION AND TOKIO MARINE AND FIRE INSURANCE COMPANY, PETITIONERS V. WORKMEN'S COMPENSATION APPEAL BOARD (HERB), RESPONDENT; NGK METALS CORPORATION AND TOKIO MARINE AND FIRE INSURANCE COMPANY, PETITIONERS V. WORKMEN'S COMPENSATION APPEAL BOARD (RANDIS), RESPONDENT; NGK METALS CORPORATION AND TOKIO MARINE AND FIRE INSURANCE COMPANY, PETITIONERS V. WORKMEN'S COMPENSATION APPEAL BOARD (WAWRZYNIAK), RESPONDENT



This Opinion Substituted on Grant of Reconsideration for Withdrawn Opinion of August 5, 1997, Previously

Before: Honorable Rochelle S. Friedman, Judge, Honorable Jim Flaherty, Judge , Honorable Charles A. Lord, Senior Judge. Opinion BY Judge Flaherty. Senior Judge Lor concurs in the result only.

The opinion of the court was delivered by: Flaherty

OPINION BY JUDGE FLAHERTY

FILED: August 5, 1997

Donald Anastasio, James Bender, Ronald Bochis, Leonard Bruder, Ronald Dierolf, William Fehr, Wilbur Herb, Albert Randis and Ronald Wawrzyniak (collectively Claimants), Employer NGK Metals Corporation (NGK) and Tokio Marine and Fire Insurance Company (Tokio) appeal and cross-appeal from the April 18, 1996, decisions and orders of the Workers' Compensation Appeal Board (Board) *fn1 which reversed the healing periods awarded by the workers' compensation Judge (WCJ), but affirmed the WCJ's decision in all other aspects.

The Claimants work, or worked, in a metals plant which NGK purchased on October 1, 1986. Tokio was NGK's insurance carrier from October 1, 1986, through December 31, 1992. NGK changed carriers, effective January 1, 1993, from Tokio to National Union. In June of 1993, prior to the filing of their petitions, all of the Claimants, with the exception of Claimant Randis, were advised by their physician that they sustained a complete loss of use of hearing. *fn2 On June 16, 1993, the Claimants filed individual claim petitions averring a specific loss of use of hearing was incurred while working for NGK. At hearings before the WCJ, each of the Claimants testified on his own behalf regarding the noise level, amount of exposure and hearing difficulty and presented lay and medical testimony in support of their individual petitions. NGK presented testimony from its plant production manager concerning its takeover of the plant, as well as testimony by medical experts regarding each of the Claimants.

After hearings on the matters, the WCJ found that all of the Claimants sustained specific loss of use of hearing for all practical intents and purposes while working for NGK. In decisions rendered before February 23, 1995, *fn3 the WCJ awarded Claimants the statutorily provided 260 weeks for binaural hearing loss under Section 306(c)(8)(I) of the Act, 77 P.S. § 513(8), along with a 10 week healing period provided under Section 306(c) (25) of the Act, 77 P.S. § 513 (25).

On April 18, 1996, the Board reversed the awards of the healing periods, specifically finding in each individual case that the Claimants never returned to employment and, in fact, left employment for one reason or another prior to the diagnoses of their conditions by their medical expert. *fn4 The Board determined there was no need for a healing period as the record lacked any evidence that the Claimants ever intended to return to work. The Board, however, affirmed the WCJ's decisions in all other aspects.

In essence, the Board determined that the Claimants did not suffer a loss of earning power because of the specific loss of use of hearing. The Board, however, affirmed the WCJ's decisions in all other aspects. The Claimants appeal, and NGK and Tokio cross-appeal, from the Board's decisions and orders. The appeals and cross-appeals were consolidated.

The parties raise the following issues on appeal: whether Claimants Bender, Bochis, Herb and Randis failed to timely provide notice or file their claims; whether the WCJ erred in relying upon the testimony and opinion of the Claimant's medical expert; whether substantial evidence exists to prove injurious exposure to noise so as to establish causation or injury; if causation is established, whether Tokio is the responsible carrier; and whether the Board erred in reversing the healing period awarded to each of the Claimants. *fn5

FILING AND NOTICE

Tokio argues that Claimants Bender, Bochis, Herb and Randis failed to timely provide notice or file their claim petitions. Under Section 311 of the Act, 77 P.S. § 631, a claimant must give notice of his or her injury to the employer within 120 days of the injury's occurrence or be forever barred from obtaining compensation for that injury. Whether a claimant has complied with the notice requirement under the Act is a question of fact to be determined by the WCJ. Boeing Helicopter Co. v. Workmen's Compensation Appeal Board (McCanney), 157 Pa. Commw. 76, 629 A.2d 184 (Pa. Commw. 1993), petition for allowance of appeal denied, 539 Pa. 321, 652 A.2d 796 (1994). NGK also avers that these Claimants knew or should have known of their hearing loss prior to the date of diagnosis by their physician and, thus, the claims are time-barred under the Act. *fn6 In Hermanson v. Workmen's Compensation Appeal Board (Kaiser Aluminum), 156 Pa. Commw. 556, 628 A.2d 514 (Pa. Commw. 1993) this court upheld the denial of benefits where the claimant knew or should have known of his alleged hearing loss. That case, however, is very fact specific. In Hermanson, among other things, the claimant was fully aware of both the extent and cause of his hearing loss at least three years prior to obtaining a medical diagnosis that his loss of use of hearing was complete. Moreover, Hermanson also filed his claim petition before obtaining this medical diagnosis, thus supporting that he knew the extent and cause of the loss.

A claimant's belief, without more, that the hearing loss is work-related does not rise to the level necessary to begin the running of the statue of limitations under the Act. Indeed, the "mere knowledge or suspicion of a significant hearing loss and a possible causal relationship with employment . . . is not sufficient evidence of a compensable hearing loss." Boeing Helicopter at 189. Here, Claimants Bochis and Randis neither admitted, nor do the facts of either case evidence, that prior to their dates of diagnosis they knew for certain that their hearing loss was of such a degree and was caused by work-related noise exposure. As such, Hermanson is distinguishable from the facts surrounding these two Claimants.

Regarding Claimants Bender and Herb, both Claimants admitted during their testimony that they knew, prior to diagnosis by their medical expert, that they were experiencing a worsening of their hearing because of work-related noise exposure. Under the language of Boeing Helicopter quoted above, however, this knowledge is not enough to rise to a level that would entitle the WCJ to find that the Claimants knew the full extent of their ...


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