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Usx Corp. v. Workers' Compensation Appeal Board3/16/1999
ARGUED: February 8, 1999
USX Corporation (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board) affirming the decision of the Workers' Compensation Judge (WCJ) that no deduction could be made for that portion of his hearing loss that was attributable to aging when it awarded hearing loss benefits to Donald Rich (Claimant).
The relevant facts of this case are not in dispute. Claimant began working for Employer in 1953 in various positions in a steel mill. In 1995, he filed a claim petition, which Employer opposed, alleging that he had suffered binaural hearing loss as a result of long and continuous exposure to excessive noise while in the course of his employment. At the hearing before the WCJ, Claimant testified that during the course of his employment, he was exposed to noise from various sources including sirens, steam pipes and horns. As a result of that noise, he testified that his hearing had been impaired to the extent that he had to wear hearing aids in both of his ears.
Claimant also offered the testimony of Roger L. Duerksen, M.D., a board certified otolarynologist. Dr. Duerksen testified that he examined Claimant in July of 1995 and administered an audiogram, concluding that Claimant had suffered a work-related 30% bilateral hearing loss according to the American Medical Association's Guide to the Evaluation of Permanent Impairments (AMA Guides), the standard required to be used in measuring occupational hearing loss under Act 1 of 1995, Act of February 22, 1995, P.L. 1, the hearing loss amendments to Section 306(c)(8)(i) of the Workers' Compensation Act (Act).
Employer introduced the testimony of Douglas Chen, M.D., also board certified in otolarynology, who testified that Claimant suffered binaural hearing loss of 20.5% according to the AMA Guides attributable to Claimant's exposure to occupational noise. Dr. Chen, however, went on to testify that the AMA Guides did not take into account the effects of aging on hearing and, using the International Standard for 1999 of the International Organization for Standardization (ISO 1999), determined that of the 20.5% hearing loss suffered by Claimant, 6.8% of that number was due to aging.
Finding that Claimant was exposed to a long and continuous exposure to work-related hazardous noise, the WCJ found that Claimant suffered a 20.5% bilateral hearing loss. In making this finding, he stated that he relied on Dr. Chen's opinion insofar as it related to the total hearing loss, but did not deduct the 6.8% hearing loss per the ISO 1999 standard that Dr. Chen attributed to normal aging. The WCJ determined that such a deduction was not permitted by the Act which only allowed the use of the AMA Guidelines to measure hearing loss. Based on a bilateral hearing loss of 20.5%, the WCJ awarded Claimant 53.5 weeks of benefits. Employer appealed to the Board which affirmed, and this appeal followed.
Employer contends, as it did before the Board, that evidence concerning the percentage of Claimant's hearing loss that was due to natural aging, utilizing the ISO 1999 standard, should not be excluded as a matter of law. Although Section 306(c)(8)(i) (the AMA Guideline Section) requires the use of the AMA Guidelines to determine the amount of hearing loss caused by long-term exposure to occupational noise and other occupational factors, it argues that provision only measures total hearing loss and does not foreclose the use of other guidelines that calculate the amount of hearing loss caused by non-occupational factors such as aging. Because Section 306(c)(8)(vi) (Causation Section) clearly provides that an employer is only liable for the hearing impairment it causes
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