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Bucci v. Workers' Compensation Appeal Board8/23/2000
Submitted: June 30, 2000
OPINION BY JUDGE COLINS
Thomas Bucci (Claimant) petitions for review of the order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of the Workers' Compensation Judge (WCJ) dismissing Claimant's claim petition. We affirm.
From 1971 through 1993, Claimant was employed by Rockwell International (Employer) as a machine operator. Claimant acknowledged that his hearing "wasn't the best" when he started working for Employer in 1971, but felt that his hearing had substantially "deteriorated" during the last ten years of his employment, when he worked in an area approximately 40 to 50 feet from a heat treating furnace that made a loud "metal against metal" sound. In 1992, Claimant was directed by his physician to use a hearing aid for his right ear, and he stated that he used earplugs or some other form of hearing protection 80 to 90 percent of his work hours.
On November 18, 1995, Claimant filed a claim petition alleging work- related hearing loss, which petition Employer timely answered. On January 29, 1998, the WCJ denied Claimant's petition, after conducting several hearings, and after evaluating the medical reports and deposition testimony of Michael C. Bell, M.D. on Claimant's behalf, and the medical reports and deposition testimony of Sidney N. Busis, M.D. on Employer's behalf. Claimant appealed, and the Board, by opinion and order dated January 25, 2000, affirmed the WCJ's conclusion that Claimant had failed to establish that he sustained a work-related hearing loss during the course and scope of his employment. This appeal followed.
On appeal, Claimant argues that he met his burden of proving that he sustained a work-related hearing loss by submitting the testimony of Dr. Bell that Claimant's 60-percent binaural hearing impairment was caused by exposure to hazardous noise while working for Employer, and by personally testifying that his hearing had worsened during the course of his employment. Claimant further contends that the only evidence that Employer submitted in defending the claim were the results of a 1988 dosimetry study presented during the testimony of Dr. Busis, to which Claimant avers he objected.
The requirements for establishing a work-related, compensable hearing loss were addressed by this Court in USX Corporation v. Workers' Compensation Appeal Board (Way), _____ A.2d ______ (Pa. Cmwlth. 2000)(No. 2374 C.D. 1999, filed June 7, 2000), slip op. at 7, as follows:
In order to establish a right to compensation, a claimant has the burden of proving that he has sustained a permanent loss of hearing that is medically established as an occupational hearing loss caused by long-term exposure to hazardous occupational noise. Section 306(c)(8)(i) of the Act, 77 P.S. §513(8)(i).
Section 306(c)(8) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L.. 736, as amended, 77 P.S. §513(8), was amended by Act I, Act of February 23, 1995, P.L. 1, 77 P.S. §513(8), and contains the hearing loss amendments. Section 306(c)(8)(vi) of Act 1 states:
(vi) An employer shall be liable only for the hearing impairment caused by such employer. If previous occupational hearing impairment or hearing impairment from nonoccupational causes is established at or prior to the time of employment, the employer shall not be liable for the hearing impairment so established whether or not compensation has previously been paid or awarded. 77 P.S. §513(8)(vi).
In the present matter, the WCJ found the medical opinion of Dr. Busis that Claimant's degree of hearing loss was far beyond the level caused by occupational noise exposure more credible t
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