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City of Philadelphia v. Workers' Compensation Appeal Board

November 5, 2010

CITY OF PHILADELPHIA, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (SEAMAN), RESPONDENT



The opinion of the court was delivered by: Judge Leavitt

Submitted: April 16, 2010

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOHNNY J. BUTLER, Judge.

OPINION

The City of Philadelphia (Employer) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) that granted the claim petition of Joseph Seaman (Claimant). In doing so, the Board affirmed the decision of a Workers' Compensation Judge (WCJ) that Claimant had sustained a work-related binaural hearing loss. Employer asserts that the testimony of Claimant's medical expert was equivocal, causing a capricious disregard of Employer's medical evidence. Discerning no merit to this argument, we affirm.

On July 8, 2006, Claimant retired after having worked as a City firefighter for 40 years.*fn1 On September 17, 2007, he filed a claim petition, alleging that he had sustained binaural hearing loss as a result of many years of exposure to hazardous noise at work. Employer filed an answer denying liability, and a hearing was conducted by a WCJ.

At the hearing, Claimant testified that his work as a firefighter in Philadelphia had exposed him to loud noise on a daily basis. He explained that the daily equipment check exposed him to the noise of engines, generators, public address and radio systems. Responding to an emergency call involved the ringing of bells at the fire station, followed by the sirens of the truck and the use of an air horn to clear traffic. Fighting fires exposed Claimant to alarm systems, smoke detectors, saws, radios, explosions, and building collapses. In the 1990's, Employer provided Claimant with ear plugs, but Claimant elected not to wear them, explaining that they were ineffective and impeded his ability to hear well enough to perform his job. In retirement, Claimant is no longer exposed to loud noises. Claimant testified that he never served in the military; only rode a motorcycle for one year in the 1970's; and does not shoot guns. There is no family history of hearing loss.

Claimant testified that his hearing problem manifested itself gradually. Eventually it became difficult for him to hear in crowded environments; to listen to the television without turning up the volume very loud; or to engage in conversations. On May 15, 2007, he attended a hearing test session at his union hall, where he was tested by Ronda Schuman. The test revealed a 53.1 percent hearing impairment, and Schuman referred Claimant to Jeffrey Cooper, M.D., an otolaryngologist.

Dr. Cooper testified about his June 21, 2007, audiological examination of Claimant. It showed Claimant to suffer a binaural hearing impairment of 47.5 percent, which Dr. Cooper found to be sensorineural, a type of hearing loss caused by exposure of the inner ear to noise. Dr. Cooper opined that Claimant's sensorineural hearing loss was directly related to his employment as a firefighter, noting that Claimant's hearing loss was "extremely atypical" for someone of Claimant's age. R.R. 61a.

In response, Employer presented the deposition testimony of Allen Miller, M.D.,*fn2 who did an independent medical examination (IME) of Claimant on April 17, 2008. Dr. Miller found a significant bilateral sensorineural hearing loss of 62.1 percent, but he concluded that it was not caused by occupational noise exposure. Dr. Miller testified that neither Dr. Cooper's nor Schuman's audiogram showed any notching at 4,000 cycles, and noise-induced hearing loss is shown by this notching. Dr. Miller opined that Claimant's hearing loss could have resulted from a variety of non-work-related causes, including vascular problems, an ototoxic condition, or Meniere's disease.

The WCJ found Dr. Cooper's opinion to be credible and consistent with Claimant's uncontradicted testimony regarding his exposure to noise. The WCJ rejected Dr. Miller's testimony as inconsistent with the weight of the evidence. As a result, the WCJ held that Claimant proved he sustained a compensable, permanent binaural hearing loss of 47.5 percent and awarded Claimant 123.5 weeks of compensation benefits.

Employer appealed to the Board. Employer argued that Claimant did not prove that his hearing loss was work-related and that the WCJ erred in disregarding the testimony of Employer's medical witness. The Board affirmed the WCJ, and Employer now petitions for this Court's review.

On appeal,*fn3 Employer raises two issues for our review. First, Employer asserts that the Board erred because Dr. Cooper's opinion was equivocal and not supported by evidence showing that Claimant had a compensable hearing loss at the time of his retirement. Second, Employer asserts that because Dr. Cooper's opinion was equivocal, it follows that the Board capriciously disregarded the competent testimony of Employer's medical expert, Dr. Miller.

The requirements for establishing a right to benefits for a work-related hearing loss are set forth in Section 306(c)(8) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §513(8). The Act requires the claim to be "filed within three years after the date of last exposure to hazardous occupational noise in the employ of the employer against whom benefits are sought." Section 306(c)(8)(viii) of the Act, 77 P.S. §513(8)(viii). The hearing loss must be established by an audiogram which "conform[s] to OSHA Occupational Noise Exposure Standards." Section 306(c)(8)(iv) of the Act, 77 P.S. §513(8)(iv). The hearing loss must be "permanent" to be compensable. Section 306(c)(8)(i) of the Act, 77 P.S. §513(8)(i). Finally, if the hearing "impairment as calculated under the Impairment Guides . is equal to or less than ten per centum, no benefits shall be payable." Section 306(c)(8)(iii) of the Act, 77 P.S. §513(8)(iii). Case law has established that the Claimant ...


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