Anastasio v. W.C.A.B. (NGK Metals Corp.)
| Decision Date | 05 August 1997 |
| Citation | 713 A.2d 116 |
| Parties | Donald ANASTASIO, James Bender, Ronald Bochis, Leonard Bruder, Ronald Dierolf, William Fehr, Wilbur Herb, Albert Randis, Robert Wawrzyniak, Petitioners, v. WORKMEN'S COMPENSATION APPEAL BOARD (NGK METALS CORPORATION), Respondent. NGK METALS CORPORATION and Tokio Marine and Fire Insurance Company, Petitioners, v. WORKMEN'S COMPENSATION APPEAL BOARD (ANASTASIO), Respondent. NGK METALS CORPORATION and Tokio Marine and Fire Insurance Company, Petitioners, v. WORKMEN'S COMPENSATION APPEAL BOARD (BENDER), Respondent. NGK METALS CORPORATION and Tokio Marine and Fire Insurance Company, Petitioners, v. WORKMEN'S COMPENSATION APPEAL BOARD (BOCHIS), Respondent. NGK METALS CORPORATION and Tokio Marine and Fire Insurance Company, Petitioners, v. WORKMEN'S COMPENSATION APPEAL BOARD (BRUDER), Respondent. NGK METALS CORPORATION and Tokio Marine and Fire Insurance Company, Petitioners, v. WORKMEN'S COMPENSATION APPEAL BOARD (DIEROLF), Respondent. NGK METALS CORPORATION and Tokio Marine and Fire Insurance Company, Petitioners, v. WORKMEN'S COMPENSATION APPEAL BOARD (FEHR), Respondent. NGK METALS CORPORATION and Tokio Marine and Fire Insurance Company, Petitioners, v. WORKMEN'S COMPENSATION APPEAL BOARD (HERB), Respondent. NGK METALS CORPORATION and Tokio Marine and Fire Insurance Company, Petitioners, v. WORKMEN'S COMPENSATION APPEAL BOARD (RANDIS), Respondent. NGK METALS CORPORATION and Tokio Marine and Fire Insurance Company, Petitioners, v. WORKMEN'S COMPENSATION APPEAL BOARD (WAWRZYNIAK), Respondent. |
| Court | Pennsylvania Commonwealth Court |
Barbara G. Holmes, Pittsburgh, for petitioners.
R. Burke McLemore, Jr., Harrisburg, for respondents.
Before FRIEDMAN and FLAHERTY, JJ., and LORD, Senior Judge.
Donald Anastasio, James Bender, Ronald Bochis, Leonard Bruder, Ronald Dierolf, William Fehr, Wilbur Herb, Albert Randis and Ronald Wawrzyniak (collectively Claimants), Employer NGK Metals Corporation (NGK) and Tokio Marine and Fire Insurance Company (Tokio) appeal and cross-appeal from the April 18, 1996, decisions and orders of the Workers' Compensation Appeal Board (Board) 1 which reversed the healing periods awarded by the workers' compensation judge (WCJ), but affirmed the WCJ's decision in all other aspects.
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. In June of 1993, prior to the filing of their petitions, all of the Claimants, with the exception of Claimant Randis, were advised by their physician that they sustained a complete loss of use of hearing. 2 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, 3 the WCJ awarded 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 April 18, 1996, the Board reversed the awards of the healing periods, specifically finding in each individual case that the In essence, the Board determined that the Claimants did not suffer a loss of earning power because of the specific loss of use of hearing. The Board, however, affirmed the WCJ's decisions in all other aspects. The Claimants appeal, and NGK and Tokio cross-appeal, from the Board's decisions and orders. The appeals and cross-appeals were consolidated.
Claimants never returned to employment and, in fact, left employment for one reason or another prior to the diagnoses of their conditions by their medical expert. 4 The Board determined there was no need for a healing period as the record lacked any evidence that the Claimants ever intended to return to work. The Board, however, affirmed the WCJ's decisions in all other aspects
The parties raise the following issues on appeal: whether Claimants Bender, Bochis, Herb and Randis failed to timely provide notice or file their claims; whether the WCJ erred in relying upon the testimony and opinion of the Claimant's medical expert; whether substantial evidence exists to prove injurious exposure to noise so as to establish causation or injury; if causation is established, whether Tokio is the responsible carrier; and whether the Board erred in reversing the healing period awarded to each of the Claimants. 5
Tokio argues that Claimants Bender, Bochis, Herb and Randis failed to timely provide notice or file their claim petitions. 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.Cmwlth. 76, 629 A.2d 184 (1993), petition for allowance of appeal denied, 539 Pa. 321, 652 A.2d 796 (1994). NGK also avers that these Claimants knew or should have known of their hearing loss prior to the date of diagnosis by their physician and, thus, the claims are time-barred under the Act. 6 In Hermanson v. Workmen's Compensation Appeal Board (Kaiser Aluminum), 156 Pa.Cmwlth. 556, 628 A.2d 514 (1993) this court upheld the denial of benefits where the claimant knew or should have known of his 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 "[m]ere 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, 629 A.2d at 189. Here, Claimants Bochis and Randis neither admitted, nor do the facts of either case 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 distinguishable from the facts surrounding these two Claimants.
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.
Regarding Claimants Bender and Herb, both Claimants admitted during their testimony that they knew, prior to diagnosis by their medical expert, that they were experiencing a worsening of their hearing because of work-related noise exposure. Under the language of Boeing Helicopter quoted above, however, this knowledge is not enough to rise to a level that would entitle the WCJ to find that the Claimants knew the full extent of their loss of use of hearing. As such, Hermanson is also distinguishable from the facts surrounding these two Claimants.
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 workrelated." 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 regarding all the Claimants, including Bender on June 28, 1993, Randis on March 29, 1993, and Bochis and Herb on June 3, 1993, establish that notice was timely given to NGK and that the claim petitions were filed in a timely fashion on June 16, 1993. As such, the Board was correct in affirming the WCJ's findings that all the Claimants here timely provided notice to, and filed their claim petitions with, NGK.
The WCJ found the testimony of the Claimants' medical expert credible and persuasive that the hearing losses were due to work-related noise exposure, including exposure to loud noise while working for NGK. As this court has consistently held, the WCJ is the ultimate finder of fact, Universal Cyclops Steel Corp. v. Workmen's Compensation Appeal Board (Krawczynski), 9 Pa.Cmwlth. 176, 305 A.2d 757 (1973), and the exclusive arbiter of credibility and evidentiary weight. Greenwich Collieries v. Workmen's Compensation Appeal Board (Buck), 664 A.2d 703 (Pa.Cmwlth.1995). Therefore, the WCJ is free to accept or reject, in whole or in part, the testimony of any witness presented including that of medical experts. Buczynski v. Workmen's Compensation Appeal Board (Richardson-Vicks, Inc.), 133 Pa.Cmwlth. 532, 576 A.2d 421 (1990).
As we stated in Sellari v. Workmen's Compensation Appeal Board (NGK Metals Corp.), 698 A.2d 1372, 1376 (Pa.Cmwlth.1997), ...
To continue reading
Request your trial
-
Socha v. WCAB (BELL ATLANTIC-PA)
...that compliance with the 120-day notice provision is a factual determination to be made by the WCJ, see Anastasio v. WCAB (NGK Metals Corp.), 713 A.2d 116, 119 (Pa.Cmwlth. 1997), appeal denied, 557 Pa. 634, 732 A.2d 618 (1998), the court invoked the principle, frequently set forth in its de......
-
McIlnay v. WCAB (Standard Steel)
...for in Section 306(c)(8)(viii). Claimant appealed to the Board, which reversed. The Board, relying on Anastasio v. Workmen's Compensation Appeal Board (NGK Metals Corp.) 713 A.2d 116 (Pa.Cmwlth.1997), petition for allowance of appeal denied, 557 Pa. 634, 732 A.2d 618 (1998), and Sellari v. ......
-
Socha v. WCAB (BELL ATLANTIC PA)
...requirement contained in section 311 of the Act is a question of fact to be determined by the WCJ. Anastasio v. Workmen's Compensation Appeal Board (NGK Metals Corp), 713 A.2d 116 (Pa.Cmwlth.1997); Boeing Helicopter Co. v. Workmen's Compensation Appeal Board (McCanney), 157 Pa.Cmwlth. 76, 6......
-
Flagg Brass v. WCAB (KATARZYNSKI)
...this finding as to Claimant's knowledge at the time he filed his claim petition. Employer cites Anastasio v. Workmen's Compensation Appeal Board (NGK Metals Corp.), 713 A.2d 116 (Pa.Cmwlth.1997), a case that discusses the date of injury for statute of limitation purposes prior to the enactm......