B.P. Oil Co. v. W.C.A.B. (DeFrank)

• Decision Date: 23 September 1993
• Citation: 158 Pa.Cmwlth. 8,632 A.2d 585
• Parties: B.P. OIL COMPANY, Petitioner, v. WORKMEN'S COMPENSATION APPEAL BOARD (DeFRANK), Respondent.
• Court: Pennsylvania Commonwealth Court

Page 585

632 A.2d 585

158 Pa.Cmwlth. 8

B.P. OIL COMPANY, Petitioner, v. WORKMEN'S COMPENSATION APPEAL BOARD (DeFRANK), Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs March 5, 1993.

Decided May 25, 1993.

Publication Ordered Sept. 23, 1993.

[158 Pa.Cmwlth. 10] Charles S. Katz, Jr., for petitioner.

John C. McFadden, for respondent.

Before CRAIG, President Judge, McGINLEY, J., and WRIGHT, Senior Judge.

CRAIG, President Judge.

B.P. Oil Company (employer) appeals an order of the Pennsylvania Workmen's Compensation Appeal Board that affirmed a referee's decision to award compensation benefits to the claimant, Francis Defrank, based on the claimant's complete loss of hearing which resulted from the claimant's exposure to high levels of noise while working for the employer.

The employer raises the following issues on appeal: (1) whether the referee erred in concluding that the claim petition was not barred under the three-year statute of limitations provision of section 315 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 602; (2) whether the board erred in concluding that the "discovery rule" applies to section 315's three-year statute of limitations in occupational noise induced hearing loss cases generally, and specifically where, as in the present case, the claimant filed a petition before the date the referee found that the claimant "discovered" the extent and cause of his injuries--the date upon which the claimant's physician diagnosed the claimant's loss and attributed that loss to the claimant's employment; (3) whether the referee erred by: a) failing to make a finding as to the date by which the claimant should have exercised reasonable diligence and should have known that he sustained a compensable level of hearing loss, under section 311 of the Act, 77 P.S. § 631, b) failing to identify the date that the claimant provided notice to the defendant, and c) failing to identify correctly the date of examination by the claimant's physician; (4) whether the board erred in concluding that occupational hearing loss is a compensable occupational disease under section 108(n) of the Act, 77 P.S. § 27.1; and (5) even if hearing loss is an occupational disease, whether the referee erred by not making a finding, pursuant to section 108(n), as to whether the incidence of hearing loss is substantially greater in the oil refining industry or in the claimant's occupation, than in the general population.

FACTS AND PROCEDURAL HISTORY

The facts, as found by the referee, follow. The claimant worked at the employer's oil refinery for thirty-seven years (from 1948 to 1982). In his first four years with the employer, the claimant worked as a labor gang member. The claimant then worked the next four years as a boiler gang member, and served his final twenty-two years with the employer as a guard.

Over the period of his employment, the claimant's varying job duties with the employer exposed him to equipment and machinery at the refinery which produced noise so loud that the claimant at times could not communicate with his co-workers.

Dr. Debra Perlstein, the claimant's physician, testified that on February 11, 1988, after conducting a full examination of the claimant, which included an audiogram and a tympanogram, she opined that the claimant suffered a complete loss of hearing in both ears, and that exposure to noise while the claimant worked for the employer, was a substantial cause of the hearing loss.

The employer offered the testimony of Dr. Joseph Sataloff, an otologist, who, after examining the claimant and reviewing the claimant's medical records, opined that the claimant's hearing loss was not caused by his employment but rather by a combination of diabetes and tynpanosclerosis.

The referee found Dr. Perlstein's and the claimant's testimony credible. The referee found that the claimant suffered a complete loss of hearing because of exposure to noise while employed by the employer. The referee also found that the claimant's disability period began on his last date of employment with the employer, June 14, 1982, and awarded the claimant compensation benefits at a weekly rate of $284.00, from that date.

The referee found that the claimant's hearing loss occurred around June 14, 1982, and that the claimant had provided adequate notice to the employer under the Act. The claimant died on February 4, 1989.

The employer appealed the referee's decision to the board. The board, noting that the referee found that the claimant's last exposure to noise was June 14, 1982, more than three years before the claimant filed a On remand, the referee affirmed his first decision and, without taking new evidence, found that the claimant's injury occurred on June 14, 1982, when he sustained a complete loss of hearing. The referee found that the claimant filed the petition on January 22, 1988. The referee also found that the claimant was not aware of the extent and cause of his injury until Dr. Perlstein examined the claimant in January of 1988. However, the record establishes that Dr. Perlstein examined the claimant on February 11, 1988.

compensation claim, remanded the case to the referee, to make factual findings regarding the timeliness of the claimant's claim petition and notice to the employer under sections 311 and 315 of the Act.

The employer appealed the referee's decision once again to the board, contending that the referee erred in finding that the claimant provided timely notice to the employer, and that the claim was barred by the statute of limitations. The board affirmed the referee's decision and this appeal followed.

ANALYSIS

Where the party with the burden of proof prevails before the referee, and the board takes no additional evidence, our scope of review is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether any error of law was committed, or whether any constitutional rights were violated. Exxon Company v. Workmen's Compensation Appeal Board (Grdgon), 88 Pa.Commonwealth Ct. 642, 491 A.2d 318 (1985).

1. Section 315--Statute of Limitations

a. In Occupational Disease Cases

The employer contends that, because the referee found that the claimant's date of injury was June 14, 1982, but that the claimant did not file his claim petition until January 22, 1988, the referee should have concluded that the petition was barred under the three-year statute of limitations provision of section 315 of the Act.

Section 315 provides, in pertinent part, that:

In cases of personal injury all claims for compensation shall be forever barred, unless, within three years after the injury, ... one of the parties shall have filed a petition as provided in article four hereof ... However, in cases of injury resulting from ionizing radiation in which the nature of the injury or its relationship to the employment is not known to the employe, the time for filing a claim shall not begin to run until the employe knows, or by the exercise of reasonable diligence should know, of the existence of the injury and its possible relationship to his employment. (Emphasis added.)

Thus, the Act specifically provides for a discovery rule which tolls the running of the three-year statute of limitations in ionizing radiation cases where the injury or its work-related cause is not known to the employee. This court has also held that section 315's discovery rule applies to occupational disease cases under the Pennsylvania Workmen's Compensation Act, including those described in section 108(n) of the Act. Jones & Laughlin Steel Corporation v. Workmen's Compensation Appeal Board (Feiertag), 90 Pa.Commonwealth Ct. 567, 496 A.2d 412 (1985). In occupational disease cases, the statute of limitation period begins to run when the claimant receives a competent medical diagnosis that his injury is job-related. Id. at 574, 469 A.2d at 417.

The employer contends that occupational noise induced hearing loss is not an occupational disease under section 108 of the Act, and thus section 315's discovery rule does not apply in this case.

Section 108 of the Act, which defines compensable occupational diseases, includes in those definitions diseases such as poisoning by arsenic and epitheliomatous cancer. Subsection (n) of section 108, which is a catch-all provision, states that other diseases not specifically enumerated in the other subsections may qualify as occupational diseases under certain conditions. Section 108(n) further provides that:

. . . . .

For the purpose of this clause, partial loss of hearing in one or both ears due to noise; and the diseases silicosis, anthra-cosilicosis and coal workers' pneumoconiosis resulting from employment in and around a coal mine, shall not be considered occupational diseases. (Emphasis added.)

In the present case, the parties do not dispute the fact that the claimant suffered a complete loss of hearing which resulted from his exposure to high levels of noise when he worked for the employer. Section 108(n) does not address whether a complete loss of hearing may qualify as an occupational disease under that section of the Act.

However, in Eddy v. Workmen's Compensation Appeal Board (Bell Transit, Incorporated), 130 Pa.Commonwealth Ct. 306, 310, 568 A.2d 279, 281 (1989), this court held that section 306(c)(8) of the Act, 77 P.S. § 513 designates complete hearing loss as a specific loss.

The court noted that in specific loss cases, the date of the injury, for the purposes of section 315, is the date when the claimant's doctor notifies the claimant of the loss of the use of his hearing for all practical intents and purposes, and that the injury is job related. See also Berisford v. Workmen's Compensation Appeal Board (Jessup Steel Company), 142 Pa.Commonwealth Ct. 83, 88, 596 A.2d 1237, 1240 (citing Eddy for the proposition that in section 306(c) specific loss cases, the date of the injury "is...