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Keystone Coal Mining Corp. v. Workers' Compensation Appeal Board8/1/2000
hough he described noise from mining activities[,] these activities would not have been in process in the areas where he worked as they were described by him and, more completely, by Mr. Radakovich. He worked in wash houses, offices, and in areas where out-of-use miner's lamps were kept. The noise level studies to which Mr. Radakovich testified, although they were performed during very limited time periods, show within a reasonable degree of statistical certainty the noise levels to which a lamp man is exposed. The test results for different surface level jobs show a variance in noise levels which ranges into hazardous exposure for some positions other than that of a lamp man. Finally, but equally important, the employee used his hearing aids rather than available hearing protection while he was working as a lamp man (hearing 9/13/96, tr. p. 18). Hearing aids would be contraindicated where there is hazardous noise.
13. The employee's last exposure to hazardous noise while he was employed by the employer occurred before September 8, 1987. (WCJ's decision, p. 5).
Accordingly, the WCJ concluded that although Claimant met his burden of proving that his hearing loss was caused by his exposure to noise at work, Claimant failed to file his claim petition within three years of his last exposure to hazardous occupational noise. Thus, the WCJ dismissed Claimant's petition.
On appeal to the Board, Claimant argued that the WCJ's findings with respect to Dr. Rogerson's testimony were inconsistent and contradicted the doctor's testimony. While recognizing that the WCJ is the determiner of credibility, the Board stated that its review encompasses the questions of competency and sufficiency of the evidence. The Board stated that although the WCJ accepted Dr. Rogerson's testimony as credible, the WCJ found Claimant's exposure to hazardous occupational noise ended when he became a lamp man in 1987. The Board determined that this finding contradicted the doctor's testimony, wherein he stated that Claimant's work as a lamp man contributed to the hearing loss. Therefore, the Board reversed the WCJ's denial of benefits and ordered benefits to be paid according to Dr. Busis' evaluation of a 31.9% impairment.
Employer now appeals to this Court, and argues that the WCJ's findings were not contradictory. In particular, Employer notes that in Finding of Fact No. 10 the WCJ accepted the testimony of Dr. Rogerson regarding the cause of Claimant's hearing loss and specifically found that "the employee's exposure to noise while in the confined areas of coal mines is the predominate cause of his hearing loss." (Finding of Fact No. 10). Employer also contends that the WCJ made a distinction between Claimant's noise exposure in the mines and his noise exposure while working as a lamp man, but that the Board disregarded the WCJ's findings based on the testimony of Claimant and Mr. Radakovich in this regard.
We agree with Employer and "repeat a firmly established and fundamental principle of workers' compensation law: the WCJ is the final arbiter of witness credibility and the weight to be accorded evidence and may reject the testimony of any witness in whole or in part...." Dana Corp. v. Workers' Compensation Appeal Board (Hollywood), 706 A.2d 396, 400 (Pa. Cmwlth. 1998), petition for allowance of appeal denied, 556 Pa. 696, 727 A.2d 1123 (1998).
The WCJ here clearly stated that he accepted Dr. Rogerson's testimony as to the cause of Claimant's hearing loss, attributing that loss to Claimant's work underground in the mines. Although the WCJ did not state with specificity that he rejected Dr. Rogerson's testimony concerning Claimant's work as a lamp man, a perusal of the WCJ'
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