Sellari v. W.C.A.B. (NGK Metals Corp.)

• Decision Date: 05 August 1997
• Parties: Joseph SELLARI, Petitioner, 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 (SELLARI), Respondent.
• Court: Pennsylvania Commonwealth Court

Page 1372

698 A.2d 1372

Joseph SELLARI, Petitioner, 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 (SELLARI), Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs Dec. 12, 1996.

Decided Aug. 5, 1997.

Thomas S. Cook, Harrisburg, for petitioner.

Robert P. Reed, Harrisburg, for respondents.

Before FRIEDMAN and FLAHERTY, JJ., and LORD, Senior Judge.

FLAHERTY, Judge.

Joseph Sellari (Claimant), NGK Metals Corporation (NGK) and its insurance carrier Tokio Marine and Fire Insurance Company (Tokio) appeal and cross-appeal from the decision of the Workers' Compensation Appeal Board (Board) ¹ which affirmed the findings of the workers' compensation judge (WCJ) that Claimant sustained a work-related, specific loss of use of hearing but reversed the award and dismissed the claim as time-barred.

Claimant worked in a metals plant from January of 1957 through December of 1988, when he retired. NGK purchased this metals plant 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 Fire Insurance Company (National Union). On June 16, 1993, Claimant filed a claim petition averring a specific loss of use of hearing allegedly incurred while working for NGK.

After hearings on the matters, the WCJ found that Claimant sustained a binaural, work-related specific loss of use of hearing for all practical intents and purposes. On January 31, 1995, the WCJ awarded Claimant the statutorily provided 260 weeks for binaural, specific loss of use of hearing under Section 306(c)(8)(I) of the Act, 77 P.S. § 513(8), along with a 10 week healing period under Section 306(c)(25) of the Act, 77 P.S. § 513(25). On April 18, 1996, the Board, while affirming the findings of the WCJ, reversed the award by finding that the petition was barred by expiration of the statute of limitations under Section 315 of the Act, 77 P.S. § 602. ² The present appeal and cross-appeal followed.

The parties raise the following issues on appeal: whether the Board erred in determining the statute of limitations expired on Claimant's petition; whether Claimant failed to establish noise exposure while working for NGK; whether noise exposure, if established, was a substantial factor in Claimant's loss of use of hearing; whether Tokio is the responsible carrier; and whether the WCJ's award of a ten-week healing period was proper. ³

STATUTE OF LIMITATIONS

The Board, while affirming the findings of fact and conclusions of law of the The Board erred in two fashions. First, Inglis House specifically deals with a WCJ's ability to terminate a claimant's benefits if the evidence reveals that the claimed disability ceased during the pendency of the matter. Here, as in all matters surrounding a claimed specific loss, once a specific loss is established there is no point at which the specific loss ends. It is indefinite. Thus, a claimant need not prove that a specific loss will continue, or worsen, throughout and beyond the pendency of the matter. The specific loss either exists or it does not exist.

                WCJ, reversed the award of benefits because it found that the claim petition was barred by expiration of the statute of limitations under Section 315 of the Act. 4  Relying on Keith v. Workmen's Compensation Appeal Board (The Budd Company), 654 A.2d 183, 185 (Pa.Cmwlth.1995), the Board noted that the peculiar nature of hearing loss, having an "insidious and slowly progressive nature", provides the basis to toll the statute of limitations.  However, because Claimant's medical expert testified that Claimant's hearing did not worsen after retirement, the Board believed the statute of limitations was not tolled here.  Thus, it found Claimant's petition time-barred and reversed the compensation award.  The Board cited Inglis House v. Workmen's Compensation Appeal Board (Reedy), 535 Pa. 135, 634 A.2d 592 (1993), for the proposition that a claimant has a continuing burden of proving the compensability of an injury throughout the pendency of the matter, and found that Claimant "did not prove the element set forth in Keith, necessary to allow tolling of the statute of limitations."  (R.R. at 18a.)   That is, the Board found that Claimant failed to establish that his hearing loss worsened after he retired
                

Second, Keith does not set forth an element necessary to toll the statute of limitations in a case involving the specific loss of use of hearing. The Board failed to acknowledge that, in Keith, this court held that the fact that a claimant experiences hearing loss as of the date of his retirement is not sufficient for purposes of the notice and statute of limitations provisions of the Act. There is no burden placed on a claimant under Keith to show that the insidious and slowly progressive nature of the hearing loss must continue beyond the date of last exposure. Nor does Keith require that the hearing loss be diagnosed by the claimant on the date of last exposure. Indeed, in Keith this court specifically held that "to expect a lay person, such as a workers' compensation claimant, to possess the same level of medical knowledge as a physician would be not only unreasonable but extremely unfair." Id. at 185. Moreover, the Keith court used the descriptive terminology "insidious and slowly progressive" merely to denote the difficulty in determining a noise-induced hearing loss and to draw a distinction between this specific loss and that of a more readily apparent style of work-related injury. It is the insidious and slowly progressive nature of the hearing loss that specifically requires, in most cases, a medical expert's diagnosis of complete loss of use for all practical intents and purposes. ⁵

Claimant correctly argues that case law generally affixes the date for the statute of Thus, the Board's requirement that Claimant prove a slow progression of hearing loss after retirement is not consistent with case law. The date of Claimant's diagnosis by his medical expert is June 10, 1993, which is also the date when the statute of limitations begins to run. Therefore, the Board erred in determining that the petition was time-barred. As such, we shall address the additional issues presented before this court.

                limitations to begin running as the date when a claimant is informed by his physician that he has a compensable hearing loss. 6  Indeed, in B.P. Oil this court noted that we have "consistently held that, in hearing loss cases, the date of injury is the date that a physician informs the claimant of the nature and extent of his hearing loss" and that is the date when the statute of limitations begins to run.  Id. 632 A.2d at 589.   In Boeing Helicopter Co. v. Workmen's Compensation Appeal Board (McCanney), 157 Pa.Cmwlth. 76, 629 A.2d 184, 187 (1993), petition for allowance of appeal denied, 539 Pa. 321, 652 A.2d 796 (1994), this court held that, for purposes of the statute of limitations period 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 work-related."   Moreover, "[a] complete loss of hearing occurs when an individual is unable to function in usual social, work and familial settings."  Id
                

NOISE EXPOSURE

NGK argues that, while it alone was named as a defendant, it is not the responsible party because it only came into existence as of October 1, 1986, that many noise generating operations ceased with its start-up and that it is a separate entity from its predecessors. NGK argues that Claimant failed to prove that his employment at NGK was a substantial factor in bringing about his injury. NGK instead maintains that Claimant "lumped" his employment at NGK together with his prior employment and that if there was any damage to his hearing as a result of occupational noise exposure it happened well before NGK came into existence. (NGK's brief at 31.) NGK avers, therefore, that Claimant's injury did not result from employment with NGK.

As this court held in Pittsburgh Press Co. v. Workmen's Compensation Appeal Board (Taress), 143 Pa.Cmwlth. 609, 600 A.2d 626 (1991), however, it is the last employer under which a claimant is cumulatively exposed to loud noise that is the responsible party. NGK erroneously argues that Pittsburgh Press is inapplicable because Claimant was employed in metal fabricating plants for a number of years and any damage to his hearing "occurred well before NGK Metals came into existence." (NGK's brief at 33.) However, as acknowledged by NGK in its brief, this court has stated that "[d]ue to the progressive nature of hearing loss from cumulative exposure to noise, it is difficult to isolate the precise moment when a claimant suffers a complete hearing loss for all practical intents and purposes." Boeing Helicopter, 629 A.2d at 187. Furthermore, as this court stated in Pittsburgh Press, the substantial contributing factor test "is not relevant to the issue of causation when the 'disability is caused by two work-related exposures, each with a different employer.' " Id., 600 A.2d at 630 (citation omitted). Thus, liability is imposed on the last employer.

NGK further avers that Claimant's medical expert testified to multiple non-occupational sources for the type of alleged hearing loss presented in this case. The WCJ, however, found the testimony of Claimant's medical expert credible and persuasive that the hearing loss was 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...