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James Mcclure, Sr v. Workers Compensation Appeal Board (Cerro Fabricated Products and Pma Group

September 15, 2011

JAMES MCCLURE, SR., PETITIONER
v.
WORKERS COMPENSATION APPEAL BOARD (CERRO FABRICATED PRODUCTS AND PMA GROUP), RESPONDENTS



The opinion of the court was delivered by: Opinion BY Judge Pellegrini

Submitted: August 26, 2011

BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JOHNNY J. BUTLER, Judge

James McClure, Sr. (Claimant) petitions for review of the order of the Workers‟ Compensation Appeal Board (Board) affirming the decision of the Workers‟ Compensation Judge (WCJ) granting his claim petition for workers‟ compensation benefits but modifying the award of his medical benefits. For the reasons that follow, we affirm the Board‟s decision.

The facts of this case are not in dispute. Claimant began working for Accurate Forging Corporation/Delta American Inc. (Accurate) in its plant as a press operator in 1972. He continued working for the company when Accurate‟s assets were acquired by Cerro Fabricated Products (Cerro) on July 28, 2000. Claimant continued to perform the same job in the same plant for the same wages under the same collective bargaining agreement. Claimant was laid off by Cerro in 2003. Audiometric testing was performed on Claimant in 1997 indicating that he had a binaural hearing loss of 18.1%. Subsequent testing in July 2004 indicated a binaural hearing loss of 24.69%.

On November 19, 2004, Claimant filed a claim petition alleging that as of August 4, 2004, he sustained a hearing loss during the course and scope of his employment with Accurate and/or Cerro. On January 6, 2006, the WCJ issued an interlocutory order stating that Accurate would be dismissed as a party to the litigation when the final decision and order was issued in the case because Cerro was the successor-in-interest of Accurate and bore all responsibility for payment of benefits if Claimant prevailed on his claim petition. As to the merits of the claim, the WCJ found that Claimant had established a binaural hearing loss of 24.69% as the result of his total and cumulative exposure to hazardous noise while working for Accurate and Cerro and granted Claimant‟s petition. She ordered Cerro to pay Claimant all reasonable and necessary medical expenses.

Cerro appealed to the Board arguing that the WCJ erred as a matter of law in determining that it was the successor-in-interest of Accurate and responsible for all medical benefits. The Board agreed, vacating and remanding the matter to the WCJ to include Accurate as a party. On remand, the WCJ found that Claimant‟s claim petition against Accurate was time barred because his employment with Accurate ended on July 27, 2000, and his claim petition was not filed until August 31, 2004, more than three years after Claimant could have had occupational noise exposure during the course of his employment with Accurate.*fn1

The WCJ further found that Cerro was responsible for the 6.57% binaural hearing impairment due to occupational noise exposure on July 22, 2004. The WCJ stated in her findings that all parties reported that Cerro had already paid Claimant for the 18.12% hearing loss that she had previously ordered and ordered a credit for benefits paid. The WCJ ordered Cerro to pay all reasonable and necessary medical expenses related to Claimant‟s work-related hearing loss. Cerro and Claimant both appealed.

Claimant alleged that Cerro was a successor-in-interest to Accurate and should be required to compensate him for the 24.69% cumulative hearing loss, which the Board again rejected. Cerro argued that the WCJ erred by holding it responsible for 100% of Claimant‟s reasonable and necessary medical expenses based upon a 6.57% hearing loss, only a percentage apportional of the overall loss itself. The Board stated that while the same medical treatment and costs would be required whether the hearing loss was 24.69% or 6.57%, had Claimant timely perfected its claim against Accurate, the indemnity award would have been prorated. It then concluded that Cerro was responsible for 6.57% of the loss and 26.61% of all medical costs awarded under the Act. This appeal by Claimant followed.*fn2

Claimant raises two issues on appeal: 1) whether the Board erred by vacating and remanding the WCJ‟s decision which determined that Cerro was a successor-in-interest and, therefore, responsible for 100% of the binaural hearing loss incurred by him while the plant was run by Accurate and 2) whether the Board erred in modifying the WCJ‟s finding that Cerro was responsible for all reasonable and necessary medical expenses and, instead, finding Cerro only responsible for 26.61% of Claimant‟s related medical expenses.

A.

Whether Cerro was successor-in-interest to Accurate "depends on the totality of the circumstances on how the plant or corporation is acquired; if the circumstances establish that the new owner is a successor-in-interest, it is not a new employer." LTV Steel Company, Inc. v. Workers' Compensation Appeal Board (Mozena), 727 A.2d 160, 164 (Pa. Cmwlth. 1999), affirmed, 562 Pa. 250, 745 A.2d 666 (2000). In LTV Steel, a claimant suffered a hearing loss after working from 1957 to 2000 for a steel plant in Aliquippa, Pennsylvania. The claimant began working as a laborer with Jones & Laughlin Steel (J&L) in 1957.

In 1974, LTV Corporation acquired 100% of the stock of J&L and merged J&L into its operations making J&L a wholly-owned subsidiary of LTV. When the claimant filed a claim petition alleging a hearing loss against LTV, it argued that it was not liable for the claimant‟s hearing loss that occurred before it merged with J&L in 1974 and most of the claimant‟s hearing loss occurred before 1974. We affirmed the WCJ‟s determination that LTV was a successor-in-interest rather than a new employer stating the following:

In this case, the WCJ found that Employer was a successor-in-interest because when LTV acquired J & L, it was a stock sale rather than an asset sale; it assumed all operations at the Aliquippa plant and retained all of J & L employees; it specifically agreed to assume liability for all of J & L‟s workers‟ compensation claims existing at the time of the merger; and it paid all workers‟ compensation claims that arose prior to 1974 when LTV acquired J & L. In other words, it assumed responsibility for all claims of J & L employees at the time of the merger, including Claimant. These facts provide substantial evidence upon which the WCJ could find that LTV was a successor and not a new employer, and responsible for all of Claimant‟s hearing loss.

727 A.2d at 164. In affirming our decision, our Supreme Court noted that the WCJ had found that LTV completed its stock purchase of J&L by November 1974; when LTV acquired J&L, LTV assumed all of the decision-making powers of the Aliquippa plant but continued to operate the facility under the J&L name; and LTV assumed all of J&L‟s assets as well as all of its liabilities, including its workers‟ compensation claims existing at the time of the 1974 merger. ...


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