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McCool v. Workers' Compensation Appeal Board (Sunoco, Inc.)

Commonwealth Court of Pennsylvania

October 18, 2013

Joseph P. McCool, Sr., Petitioner
Workers' Compensation Appeal Board (Sunoco, Inc.), Respondent

Submitted: August 23, 2013




Joseph P. McCool, Sr. (Claimant), pro se, petitions this Court for review of the Workers' Compensation Appeal Board's (Board) March 8, 2013 order affirming the Workers' Compensation Judge's (WCJ) decision denying Claimant's claim petition. Claimant essentially presents three issues for this Court's review: (1) whether the WCJ incorrectly placed the burden of proving exposure to hazardous noise on Claimant, (2) whether the WCJ's decision is supported by competent evidence and is consistent with appellate authority, and (3) whether the WCJ issued a reasoned decision or capriciously disregarded the record evidence. We affirm.

Claimant was employed by Sunoco, Inc. (Employer) as an operator apprentice and later a refinery operator for five years ending March 20, 2008. Prior to that employment, from November 1983 through October 1998, Claimant was a Philadelphia firefighter during which time he was exposed to noise. Between his firefighter position and his job with Employer, he worked three office jobs.[1]

As Employer's operator apprentice and then refinery operator, Claimant was exposed to extreme noise created by the numerous pieces of equipment in the refinery, and significant noise outside the refinery from pumps and miles of piping with product going through it. Steam leaks were a constant problem, and there was a high-pitched whistle at times. Claimant cleaned filters on six-story high heaters, and took crude oil off barges and out of the pipelines. He also started the initial refinery process, which required an extreme amount of heat and caused tremendous noise in separating the various crude oil components. Claimant spent almost all of his 12hour shifts outside. He would occasionally report to the block house, where the restroom and kitchen facilities were located. Claimant's block house was extremely noisy as compared to most of Employer's other block houses because it housed various electronic equipment which contained fans and motors, and it was located adjacent to the product manifold where all the different piping lines came in and were distributed.

Employer furnished and required the use of personal protective equipment, especially hearing protection. Employer provided approximately one dozen different types of hearing protection for its employees' use. Claimant was informed that he did not have to wear earplugs in the block house, so he only wore them when he was outside. Claimant and his co-workers communicated inside and outside the refinery via walkie-talkie. About a year before Claimant stopped working for Employer, he wore headphones with hearing-protective plugs that permitted him to communicate without a walkie-talkie. He resigned his employment with Employer on March 20, 2008.

In April 2001, an attorney was undertaking to represent a number of Philadelphia firefighters to bring hearing loss claims against the City of Philadelphia. As part of this group, Claimant had an audiogram through the firefighter's union. In May 2001, Claimant mentioned to his attorney that the union was pursuing the above hearing loss claims, and as a result of this conversation, Claimant saw Dr. Allen Gold (Dr. Gold). Dr. Gold's audiogram report showed an American Medical Association (AMA) impairment, but it was not sufficient enough to bring a hearing loss claim. Claimant also took a pre-employment audiogram for Employer in December 2002, and then a yearly audiogram thereafter with Employer, i.e., November 2003, November 2004, October 2005, and September 2007. The 2002 audiogram revealed a pre-existing hearing loss that continued to accelerate across all frequencies at each yearly retest. In 2006 or 2007, Claimant was referred to Dr. Stuart Scherr (Dr. Scherr), an ear, nose and throat physician, by his family doctor at Claimant's request. As a result of said referral, Claimant started wearing a hearing aid.[2]

On July 7, 2010, Aaron L. Shapiro, M.D. (Dr. Shapiro), an ear, nose and throat specialist, evaluated Claimant at the request of his attorney. Dr. Shapiro issued a medical report dated August 2, 2010, wherein, he stated that Claimant's occupational hearing loss was attributable to his firefighter duties. On October 4, 2010, Dr. Shapiro issued a second medical report, wherein, he opined that Claimant's occupational hearing loss was due to his work with Employer.

On October 11, 2010, Claimant filed a claim petition alleging bilateral occupational hearing loss as a result of his employment with Employer. On April 14, 2011, a WCJ held a hearing on Claimant's petition. On October 7, 2011, the WCJ denied and dismissed Claimant's claim petition. Claimant appealed to the Board and, on March 8, 2013, the Board affirmed the WCJ's order. Claimant appealed to this Court.[3]

Claimant argues that the WCJ incorrectly placed the burden of proving exposure to hazardous noise on Claimant. We disagree.

The requirements for establishing a claim to [sic] benefits for 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. The burden of proof is on the claimant to establish that he suffers from a permanent hearing loss of 10 percent or greater that is medically established to be work-related and caused by the long-term exposure to hazardous occupational noise. Whether the employee has, in fact, been exposed to hazardous occupational noise is not part of the claimant's burden of proof. Instead, the employer may assert as an affirmative defense that the claimant's exposure to such noise was not hazardous or long-term.

Flatley v. Workers' Comp. Appeal Bd. (Mallinckrodt Chem., Calsicat Div.), 803 A.2d 862, 866-67 (Pa. Cmwlth. 2002) (footnote omitted).

Here, it is undisputed that Claimant suffers a permanent bilateral hearing loss greater than 10%. However, the WCJ rejected Claimant's testimony as not credible as to when he knew that his hearing loss was work-related because he had previously conferred with attorneys and had his hearing tested to explore a potential hearing loss claim arising out of his employment as a Philadelphia firefighter. WCJ Dec. at 5. In addition, the WCJ found Claimant's testimony unpersuasive as to why he sought repeated testing and treatment from Dr. Scherr.[4]Id. Moreover, the WCJ found Claimant's witness, Dr. Shapiro, not credible because he issued two conflicting medical reports each blaming a different employer for Claimant's hearing loss. Id. Rather, the WCJ credited the testimony of Lee D. Rowe, M.D. (Dr. Rowe), Employer's physician, that Claimant's hearing loss was not due to occupational ...

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