Socha v. Workers' Compensation Appeal Board
Socha v. Workers' Compensation Appeal Board
Opinion of the Court
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
We allowed appeal in this matter to consider the timeliness of a notice to an employer of a work-related partial hearing loss under Section 311 of the Workers’ Compensation Act.
Emil Socha (“Claimant”) has been employed by Bell Atlantic Pennsylvania, Inc. (“Employer”) since 1968, when he worked as a switchman at Employer’s facility in downtown Pittsburgh; he remained in that location until 1984. In this
In 1990, during an examination conducted by Employer for the renewal of a commercial driver’s license, Claimant was informed that he was suffering hearing loss that might preclude his future eligibility to acquire such a license. Moreover, Claimant admitted that he had noticed problems with his hearing shortly after beginning work for Employer, explaining that his wife had repeatedly asked him to undergo a hearing evaluation, he experiences difficulty hearing people over the telephone, he cannot hear well in the presence of background noise, and he must increase the volume on a radio to hear it. Claimant also admitted an awareness that exposure to loud noises could damage one’s hearing and that he experienced such exposure in the course of his employment.
Aside from the testing associated with the commercial driver’s license, Claimant’s hearing was not tested until September 6, 1995, when he was seen by Michael C. Bell, M.D. In a report issued to Claimant’s attorney on that day, Dr. Bell set forth a preliminary opinion that Claimant suffered a loss of hearing secondary to industrial noise exposure. On September 25, 1995, evidently relying upon this preliminary opinion, Claimant filed a claim petition for bilateral hearing loss occasioned by continuous occupational exposure to noise and also sent Employer notice of his injury by certified mail. Employer filed an answer to the petition, denying all material allega
In support of his petition, Claimant offered into evidence a medical report from Dr. Bell, dated October 27, 1995, in which he opined that, based upon an audiogram and examination, Claimant suffered a binaural hearing loss of 17.19 percent. Dr. Bell concluded, to a reasonable degree of medical certainty, that Claimant was exposed to an occupational noise hazard that caused his hearing loss. Claimant also offered a report by Donald B. Kamerer, M.D., F.A.C.S., who concluded that Claimant’s binaural hearing loss, calculated according to the American Medical Association’s Guidelines, was nineteen percent.
While finding credible Claimant’s testimony regarding his occupational exposure to hazardous noise, and noting that the medical reports were consistent with one another, the Workers’ Compensation Judge (“WCJ”) concluded that Claimant knew by 1990 that he had suffered a significant amount of work-related hearing loss. Observing that a partial hearing
On further appeal, Claimant argued to the Commonwealth Court that the date of his injury for purposes of the 120-day notice provision was the date he filed his claim petition, premising such argument upon Section 306(c)(8)(ix) of the Act, which provides that:
(ix) The date of injury for occupational hearing loss under subclause (i) of this clause shall be the earlier of the date on which the claim is filed or the last date of long-term exposure to hazardous occupational noise while in the employ of the employer against whom the claim is filed.
77 P.S. § 513(8)(ix). The Commonwealth Court, however, disagreed with this interpretation of Section 306(c)(8)(ix), concluding that the provision was intended by the General Assembly to apply solely to the calculation of compensation for
The Commonwealth Court nevertheless agreed with Claimant’s contention that the record evidence did not support the finding that Claimant possessed sufficient knowledge of a compensable, work-related hearing loss prior to February 23, 1995, so as to impose upon him a duty to provide notice of the hearing loss within 120 days of that date. Acknowledging 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 decisional law, that a claimant’s belief or suspicion that a hearing loss is work-related is alone insufficient to confer knowledge that a compensable hearing loss has occurred. See Socha, 725 A.2d at 1281; see also Anastasio, 713 A.2d at 120; Boeing Helicopter v. WCAB (McCanney), 157 Pa.Cmwlth. 76, 85, 629 A.2d 184, 189 (1993), appeal dismissed, 539 Pa. 321, 652 A.2d 796 (1994). The Commonwealth Court reasoned that Employer’s examination of Claimant in 1990 for a commercial driver’s license and the corresponding notice to Claimant that he suffered some hearing loss, contrary to the WCJ’s statement, did not afford Claimant knowledge or notice that such hearing loss was work-related or that he suffered sufficient hearing loss exceeding the ten percent threshold required for benefits under Section 306(c)(8)(iii) of the Act, 77 P.S. § 513(8)(iii). See Socha, 725 A.2d at 1281. Reviewing the evidence, the Commonwealth Court determined that the 120-day notice period was not triggered until September 6, 1995, the date
Presently, the parties maintain their disagreement concerning whether the Commonwealth Court’s traditional approach to the discovery rule remains viable in partial hearing loss cases. Significant to our view of the appropriate basis for the present disposition, Claimant argues that resort to the discovery principle is unnecessary in light of Section 306(c) (8) (ix)’s alignment of the date of injury with the date of claim filing. In response, Employer invokes the Commonwealth Court’s conclusion that Section 306(c)(8)(ix)’s definition should apply only to calculation of benefits determinations, noting the absence of any reference to Section 311 among the terms of that subsection. According to Employer, the terms “injury” and “date of injury” should be afforded materially different interpretations, precluding any equation between the “date of injury” under Section 306(c)(8)(ix) and the “occurrence of the injury” for purposes of the notice provision of Section 311. Employer further argues that Section 308(c)(8)(ix) was intended solely to resolve the difficulties often associated with determining a claimant’s average weekly wage for a hearing loss claim, since the moment of the occurrence of the compensable injury is incapable of precise ascertainment.
By its design, however, Section 306(c)(8)(ix) is not specifically directed to the calculation of benefits — rather, the provision more broadly establishes a date of injury for the discrete category of harm under Section 306(c)(8)(i), namely, occupational hearing loss resulting from long-term occupational exposure.
Significantly, however, adopting an integrated interpretation would carry its own salutary effects in terms of advancing
Since we discern no statutory basis for limiting the effect of Section 308(c)(8)(ix) to calculation of benefits determi
Although the above reasoning represents the view of a plurality, all Justices are aligned in terms of the result. Accordingly, the order of the Commonwealth Court is affirmed.
. Act of June 2, 1915, P.L. 736, § 311, as amended, 77 P.S. § 631 (the “Act”). Section 311 provides that:
Unless the employer shall have knowledge of the occurrence of the injury, or unless the employe or someone in his behalf, or some of the dependents or someone in their behalf, shall give notice thereof to the employer within twenty-one days after the injury, no compensation shall be due until such notice be given, and, unless such notice be given within one hundred and twenty days after the occurrence of the injury, no compensation shall be allowed.
77 P.S. § 631. This section also sets forth a discovery rule for instances in which the nature of the injury or its causal relation to employment is not readily apparent. See id. Pursuant to such provision, the notice period does not commence until the employee “knows, or by the exercise of reasonable diligence should know, of the existence of the injury and its possible relationship to his employment.” Id.
. Because of the relatively low percentage of hearing loss, the claim for specific loss benefits did not exceed a fifty-two-week period. See Act of June 2, 1915, P.L. 736, § 306(c)(8)(i), as amended, 77 P.S. § 513(8)(i). That being the case, Claimant was not required to present deposition testimony and, instead, relied only upon medical reports. See Section 422(d) of the Act, 77 P.S. § 835.
. The Act initially provided compensation solely for a complete work-related loss of hearing for all practical intents and purposes. See Act of June 2, 1915, P.L. 736, § 306(c)(8), as amended, 77 P.S. § 513(8) (subsequently amended); WCAB v. Hartlieb, 465 Pa. 249, 252, 348 A.2d 746, 748 (1975). On February 23, 1995, however, the General Assembly amended Section 306(c) of the Act, allowing compensation for partial binaural hearing loss that exceeds a specified minimum threshold and "is medically established as an occupational hearing loss caused by long-term exposure to hazardous occupational noise." See Act of February 23, 1995, P.L. 1, § 2, amending 77 P.S. § 513(8)(i), (iii).
. Section 306(c)(8)(i) specifies as follows:
For permanent loss of hearing which is medically established as an occupational hearing loss caused by long-term exposure to hazardous occupational noise, the percentage of impairment shall be calculated*609 by using the binaural formula provided in the Impairment Guides. The number of weeks for which compensation shall be payable shall be determined by multiplying the percentage of binaural hearing impairment as calculated under the Impairment Guides by two hundred sixty weeks. Compensation payable shall be sixty-six and two-thirds per centum of wages during this number of weeks, subject to the provisions of clause (1) of subsection (a) of this section.
77 P.S. § 513(8)(i). Significantly, the subsection is not solely a calculation-of-benefits provision; rather, it constitutes the substantive provision affording a right to relief under the Act for employees suffering from certain forms of occupational hearing loss.
. Employer's suggestion lhat the term “date of injury'' was intended as a term of art applicable solely to the calculation of benefits under Section 306(c)(8)(i) is a strained interpretation of the Act. In instances in which the General Assembly has intended to employ words as terms of art specific to particular enactments or portions thereof, it has generally accomplished this by providing specific direction and using the term of art in the enactment. See, e.g., Act of October 27, 1995, P.L.
. The 1995 amendments to Section 306(c)(8), while alleviating some of the uncertainty as to the extent of impairment necessary for compensation, did not eliminate completely the concerns regarding speculation by claimants lacking medical qualifications, see, e.g., 77 P.S. § 513(8)(i),
. It is noteworthy that the General Assembly did not extend the designated date of injury of Section 308(c)(8)(ix) to circumstances of hearing impairment attributable to a specific, identifiable event, a type of injury governed by another provision of Section 306(c)(8). See 77 P.S. § 513(8)(ii).
. Our reasoning here would not be intended to impact upon the applicability of Section 311's discovery rule with respect to a claimant who has been free, for a period of longer than 120 days, from exposure to hazardous occupational noise under the employer from whom compensation is sought.
. The legislative design creates a direct financial incentive to employers to minimize the percentage of employee work-related hearing loss, since specific loss benefits are calculated according to the percentage of such loss. See 77 P.S. § 513(8)(i).
Concurring Opinion
concurring.
I agree with the majority that the Appellant, Emil Socha, (“Socha”), satisfied the notice requirement of § 631 of the Worker’s Compensation Act, 77 Pa.C.S. §§ 1 et seq. (the “Act”), and is, therefore, entitled to benefits. I disagree, however, with the interpretation of 77 P.S. § 513(8)(ix) that underlies the majority’s result. Instead, my views coincide with those reflected in Justice Nigro’s concurring opinion. I, too, believe that when the General Assembly amended the Act in 1995, it intended § 513(8)(ix) to govern the calculation of compensation for hearing loss claims, and did not intend it to displace the traditional application of the discovery rule set forth in § 631 for determining the timeliness of an employee’s notice.
In the case sub judice, it is evident from the record that prior to receipt of a medical diagnosis on September 6, 1995, Socha did not know nor did he have reason to know that he had suffered a compensable hearing loss due to industrial noise exposure within the meaning of § 631. Socha’s September 25,1995 notice was, therefore, timely.
Accordingly, I join the majority’s decision to affirm the Commonwealth Court’s order. I also join Justice Nigro’s concurring opinion.
. This is, I believe, the essence of the Commonwealth Court’s decision. Socha v. WCAB (Bell Atlantic PA), 725 A.2d 1276 (Pa.Cmwlth. 1999). I find great merit in the Commonwealth Court's interpretation of 77 P.S. § 513(8)(ix), and fully agree with the court's application of the discovery rule in 77 P.S. § 631.
Concurring Opinion
concurring.
I agree with the majority that Claimant is entitled to benefits. I write separately, however, because I do not agree with the majority that the term “date of injury” in Section 306(c)(8) applies to the 120-day notice period in Section 311. Instead, I would affirm the Commonwealth Court’s conclusion that the term “date of injury” in subsection 306(c)(8)(ix) pertains solely to Section 306(c)(8)’s scheme for calculating partial hearing loss benefits.
The fact that the General Assembly did not intend Section 306(c)(8)’s definition of “date of injury” to also apply to Section
Furthermore, I agree with the Commonwealth Court that Section 311’s notice period should be triggered on the date a claimant is informed by a physician or other health care provider that he suffers from a work-related hearing loss of ten percent or greater. This rule definitively protects claimants who have been away from the workplace for over 120 days and later learn that they have suffered a work-related hearing impairment in excess of ten percent. While this rule extends an employer’s liability to claims by claimants who are no longer exposed to occupational noise, an employer may, as the majority suggests, conduct periodic audiometric tests or periodic physical exams of employees in order to discover potential claimants and protect itself from delayed claims. Applying this rule to the instant case, Claimant notified Bell Atlantic well within Section 311’s time limits because Claimant was not informed by his doctor that he suffered from a ten percent hearing loss due to industrial noise exposure until September 6, 1995 and Claimant filed his claim petition on September 25, 1995. Thus, Claimant is entitled to benefits.
. Indeed, subsection 306(c)(8)(ix) specifically defines “[t]he date of injury for occupational hearing loss under subclause (i) of this clause [Section 306(c)(8)].” 77 P.S. § 513(8).
. Under Section 306(c)(8)’s scheme, a court must calculate a claimant's benefits by using the claimant’s wages as of his "date of injury,” which as defined by that section, is either the claimant’s wages when he filed a claim, or the claimant’s wages on the last day the claimant was exposed
Reference
- Full Case Name
- Emil SOCHA v. WORKERS’ COMPENSATION APPEAL BOARD (BELL ATLANTIC-PENNSYLVANIA, INC.) Appeal of Bell Atlantic-Pennsylvania, Inc.
- Cited By
- 7 cases
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- Published