Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

08/05/97 NGK METALS CORPORATION AND NATIONAL UNION

August 5, 1997

NGK METALS CORPORATION AND NATIONAL UNION FIRE INSURANCE COMPANY, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (BAILEY), RESPONDENT; NGK METALS CORPORATION AND NATIONAL UNION FIRE INSURANCE COMPANY, PETITIONERS V. WORKMEN'S COMPENSATION APPEAL BOARD (BARNETSKY), RESPONDENT; NGK METALS CORPORATION AND NATIONAL UNION FIRE INSURANCE COMPANY, PETITIONERS V. WORKMEN'S COMPENSATION APPEAL BOARD (BOWERS), RESPONDENT; NGK METALS CORPORATION AND NATIONAL UNION FIRE INSURANCE COMPANY, PETITIONERS V. WORKMEN'S COMPENSATION APPEAL BOARD (FOUSE), RESPONDENT; NGK METALS CORPORATION AND NATIONAL UNION FIRE INSURANCE COMPANY, PETITIONERS V. WORKMEN'S COMPENSATION APPEAL BOARD (GANSTER), RESPONDENT; NGK METALS CORPORATION AND NATIONAL UNION FIRE INSURANCE COMPANY, PETITIONERS V. WORKMEN'S COMPENSATION APPEAL BOARD (KEMMERER), RESPONDENT; NGK METALS CORPORATION AND NATIONAL UNION FIRE INSURANCE COMPANY, PETITIONERS V. WORKMEN'S COMPENSATION APPEAL BOARD (KOCH), RESPONDENT; NGK METALS CORPORATION AND NATIONAL UNION FIRE INSURANCE COMPANY, PETITIONERS V. WORKMEN'S COMPENSATION APPEAL BOARD (REICHERT), RESPONDENT; NGK METALS CORPORATION AND NATIONAL UNION FIRE INSURANCE COMPANY, PETITIONERS V. WORKMEN'S COMPENSATION APPEAL BOARD (ROGERS), RESPONDENT; NGK METALS CORPORATION AND NATIONAL UNION FIRE INSURANCE COMPANY, PETITIONERS V. WORKMEN'S COMPENSATION APPEAL BOARD (SHERIFF), RESPONDENT; NGK METALS CORPORATION AND NATIONAL UNION FIRE INSURANCE COMPANY, PETITIONERS V. WORKMEN'S COMPENSATION APPEAL BOARD (VITALO), RESPONDENT; DAVID BAILEY, JOHN BARNETSKY, RONALD BOWERS, RONALD FOUSE, NEIL GANSTER, HAROLD KEMMERER, GEORGE KOCH, WILLIAM REICHERT, MICHAEL ROGERS, RUSSELL SHERIFF AND JOHN VITALO, PETITIONERS V. WORKMEN'S COMPENSATION APPEAL BOARD (NGK METALS CORPORATION), RESPONDENT



Appealed From No. A95-0360, 0319, 0189, 0479, 0422, 0514, 0124, 0513, 0620, 0107 and 0522. State Agency Workers' Compensation Appeal Board.

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

The opinion of the court was delivered by: Flaherty

OPINION BY JUDGE FLAHERTY

FILED: August 5, 1997

David Bailey, John Barnetsky, Ronald Bowers, Ronald Fouse, Neil Ganster, Harold Kemmerer, George Koch, William Reichert, Michael Rogers, Russell Sheriff and John Vitalo (collectively Claimants), Employer NGK Metals Corporation (NGK) and its insurance carrier National Union Fire Insurance Company (National Union) 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, in the majority of the cases, affirmed the WCJ's decision in all other aspects. *fn2

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. All of the Claimants worked for NGK before and after January 1, 1993. 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 the 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 appeal, the Board reversed the healing periods awarded to the Claimants. The Board specifically found that the Claimants were either retired or continued to work for NGK at the time the claim petitions were filed and the awards fashioned by the WCJ. *fn4 As such, regarding the retired Claimants, the Board determined there was no need for a healing period because the record lacked evidence that the retired Claimants intended to return to work. Additionally, the Board determined that the Claimants who continued to work were not entitled to a healing period because they never lost time from work.

In essence, the Board determined that each of the Claimants did not demonstrate a loss of earning power caused by their specific loss of use of hearing. The Board, however, except for determining the insurance carrier for Claimant Sheriff, affirmed the WCJ's decisions in all other aspects. *fn5 The Claimants appeal, and NGK and National Union cross-appeal, from the Board's decisions and orders. The appeals and cross-appeals were consolidated.

The following issues are raised before this court: whether Claimants Fouse, Ganster and Kemmerer failed to timely provide notice of their claims; whether the WCJ erred in relying upon the testimony and opinion of the Claimants' medical expert; whether substantial evidence exists to prove injurious exposure to noise so as to establish causation or injury; whether there was proof of causative exposure after January 1, 1993, when National Union became the carrier, so as to impose liability on National Union; and whether the Board erred in reversing the healing period awarded to each of the Claimants. *fn6

NOTICE

NGK argues that Claimants Fouse, Ganster and Kemmerer each failed to timely provide notice of their injury to NGK. 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 avers that these Claimants knew or should have known of their hearing loss prior to the date of diagnosis by their physician. 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 statute 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, none of the Claimants admitted, and the facts of each case do not 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 factually distinguishable.

In Boeing Helicopter, this court held that, for purposes of the statute of limitations periods under the Act, "a hearing loss becomes compensable when a claimant is advised by the doctor that he or she has suffered a complete loss of use of hearing for all practical intents and purposes and that the loss is work-related." Id. at 187. Moreover, "[a] complete loss of hearing occurs when an individual is unable to function in usual social, work and familial settings." Id. Here, the dates of medical diagnoses as to a complete loss of use of hearing were March 29, 1993, for Ganster and June 10, 1993, for Fouse and Kemmerer. All of the Claimants' petitions were filed in a timely fashion, specifically on June 16, 1993. This evidences that these Claimants also provided timely notice to NGK, that ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.