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Duncannon Borough & Authority and State Workers' Insurance Fund v. Workers' Compensation Appeal Board

November 10, 2010

DUNCANNON BOROUGH & AUTHORITY AND STATE WORKERS' INSURANCE FUND, PETITIONERS
v.
WORKERS' COMPENSATION APPEAL BOARD (BRUNO), RESPONDENT



The opinion of the court was delivered by: Judge Butler

Submitted: October 1, 2010

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOHNNY J. BUTLER, Judge.

OPINION

Duncannon Borough (Employer)*fn1 petitions for review of the May 19, 2010 order of the Workers' Compensation Appeal Board (Board) affirming the decision of a Workers' Compensation Judge (WCJ) which granted the review petition of John Bruno (Claimant) and awarded him specific loss benefits for hearing loss. The issue before this Court is whether the Board erred as a matter of law by finding that Section 306(c)(8)(iii) of the Workers' Compensation Act (Act) is not applicable when hearing loss is caused by trauma.*fn2 Based on the following, we reverse the decision of the Board.

The facts of this case are not disputed. Claimant was a police officer for Employer. On October 16, 2007, while on duty, he was a passenger in a patrol car that was rear-ended. Claimant was dazed upon impact, he felt dizzy, and he experienced a ringing in his right ear that he had not previously experienced. At the hospital, Claimant complained of pain in various parts of his body, and ringing in his right ear. The uncontroverted medical evidence submitted by Claimant and Employer establishes that Claimant suffered a monaural (single ear) hearing loss of 31.88% and a binaural (both ears) hearing impairment of less than 10% as a result of the October 16, 2007 accident, and that he has reached maximum medical improvement with the use of a hearing aid.

Employer issued a notice of compensation payable (NCP) dated December 3, 2007 for shoulder, neck and low back strain. On May 2, 2008, Claimant filed a review petition seeking specific loss benefits under Section 306(c)(8)(ii) of the Act due to a permanent hearing loss in his right ear as a result of his October 16, 2007 work injury. Following a hearing on February 5, 2009, the WCJ granted Claimant specific loss benefits, on the basis that Claimant established a 31.88% permanent right monaural hearing loss. On May 19, 2010, the Board affirmed the WCJ's decision. Employer appeals to this Court.*fn3

On appeal, Employer argues that the WCJ erred in awarding specific loss benefits to Claimant because Section 306(c)(8)(iii) of the Act precludes an award of benefits for hearing loss when a claimant's binaural hearing loss is 10% or less.

Specifically, Employer asserts that while Section 306(c)(8)(ii) of the Act, 77 P.S. § 513(8)(ii), permits hearing impairment to be calculated using either binaural or monaural formulas when the impairment results from a single incident of trauma, even if a monaural formula is used, under Section 306(c)(8)(iii) the binaural formula must also be used and must yield a hearing impairment greater than 10% to warrant an award of specific loss benefits. We agree.

Section 306(c) of the Act sets forth how compensation shall be paid for work-related hearing loss. Section 306(c) of the Act states, in pertinent part:

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

. . . . (8)(i) For permanent loss of hearing which is medically established as an occupational hearing loss caused by long-term exposure to hazardous occupational noise, the percentage of impairment shall be calculated by using the binaural formula provided in the Impairment Guides. The number of weeks for which compensation shall be payable shall be determined by multiplying the percentage of binaural hearing impairment as calculated under the Impairment Guides by two hundred sixty weeks. Compensation payable shall be sixty-six and two-thirds per centum of wages during this number of weeks, subject to the provisions of clause (1) of subsection (a) of this section.

(ii) For permanent loss of hearing . . . which is medically established to be due to other occupational causes such as acoustic trauma or head injury, the percentage of hearing impairment shall be calculated by using the formulas as provided in the Impairment Guides. The number of weeks for which compensation shall be payable for such loss of hearing in one ear shall be determined by multiplying the percentage of impairment by sixty weeks. The number of weeks for which compensation shall be payable for such loss of hearing in both ears shall be determined by multiplying the percentage of impairment by two hundred sixty weeks. . . .

(iii) Notwithstanding the provisions of subclauses (i) and (ii) of this clause, if there is a level of binaural hearing impairment as calculated under the Impairment Guides which is equal to or less than ten per centum, no benefits shall be payable. . . .

The Impairment Guides referred to in Section 306(c)(8) of the Act are the American Medical Association's Guides to the Evaluation of Permanent ...


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