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Keystone Coal Mining Corp. v. Workers' Compensation Appeal Board8/1/2000
SUBMITTED: June 30, 2000
Keystone Coal Mining Corporation (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that reversed the decision by a workers' compensation judge (WCJ) that dismissed William Wasnak's (Claimant) claim petition for work-related hearing loss benefits for failing to file his petition within three years of exposure to hazardous occupational noise. We reverse and reinstate the WCJ's decision and order.
On July 22, 1996, Claimant filed a claim petition alleging that he sustained a bilateral hearing loss caused by exposure to noise during the course of his thirty-two years of employment with Employer. Employer filed an answer denying the allegations. At a hearing before the WCJ, Claimant testified about his exposure to loud noise during the years he worked underground as a coal miner. He also testified that beginning on September 8, 1987, he began working as a lamp man until his retirement on September 27, 1994. Claimant explained that his job as a lamp man was performed at the mine site, but was not underground and that the noise exposure at that position was not as loud as he had experienced when he worked below ground.
Claimant submitted the deposition testimony of David R. Rogerson, M.D., a board-certified otolaryngologist, who examined Claimant on July 8, 1996. Dr. Rogerson testified that Claimant's exposure to noise while working as a coal miner was the predominate cause of Claimant's hearing loss, which measured 40% under the American Medical Association's (AMA) guidelines. He also acknowledged that age was a factor.
Employer presented the testimony of Richard L. Radakovich, Employer's manager of safety, who testified about noise studies performed at Employer's facility. Employer also entered into evidence the records of the noise studies, which revealed that the highest noise level to which a lamp man is exposed is 75 decibels. Employer also presented the deposition testimony of Sidney N. Busis, M.D., a board-certified otolaryngologist, who examined Claimant on October 28, 1996. Dr. Busis testified that some of Claimant's hearing impairment of 31.9% was caused by Claimant's early exposure in the mines, his military experience and hunting as a young man. However, Dr. Busis testified that in his opinion age and heredity were also factors that caused some of Claimant's hearing loss, although he had no information about Claimant's family history.
In his decision, the WCJ indicated that Employer asserted that Claimant was not exposed to hazardous occupational noise while working as a lamp man. As a result, Employer contended that Claimant's petition was not timely filed pursuant to Section 306(c)(8)(viii) of the Act, 77 P. S. ยง513(8)(viii), i.e., Claimant began work as a lamp man on September 8, 1987 and did not file his claim petition until July 22, 1996.
The WCJ found as fact that:
10. The testimony of Dr. Rogerson as to the cause of the employee's hearing loss is credible and persuasive. I accept and adopt this opinion in that I find as fact that the employee's exposure to noise while in the confined areas of coal mines is the predominate cause of his hearing loss....Age is a minor factor in the employee's hearing loss. (WCJ's decision, p. 4).
Despite this finding as to cause, the WCJ accepted as credible Dr. Busis' evaluation of 31.9% as representative of the extent of Claimant's hearing loss. The WCJ further found that:
12. The employee was not exposed to hazardous noise during his work as a lamp man. This finding is based upon several factors. All of this work was outside the mine. The employee did not operate machinery. Alt
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