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Socha v. Workers' Compensation Appeal Board3/8/1999
SUBMITTED: December 23, 1998
Emil Socha (claimant) petitions for review of an order of the Workers' Compensation Appeal Board (board) affirming the workers' compensation Judge's (WCJ) decision denying his claim petition. We reverse and remand.
Bell Atlantic-Pennsylvania, Inc. (employer) employed claimant as a switchman from 1968 to the present. On or about September 25, 1995, claimant filed a claim petition. Therein, claimant alleged that he suffered bilateral hearing loss as a result of long and continuous exposure to hazardous noise levels while employed by employer. Claimant alleged further that the date of injury was September 6, 1995 and that notice of his injury was given to employer on September 25, 1995 by certified mail.
Employer filed a timely answer denying all material allegations and stating that claimant failed to give employer notice of his work-related injury in accordance with section 311 of the Pennsylvania Worker's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 631. Hearings before the WCJ ensued.
Before the WCJ, claimant testified on his own behalf and submitted the reports of Michael C. Bell, M.D. and Donald B. Kamerer, M.D. Employer did not submit any evidence.
Claimant testified that during his employment as a switchman from 1968 to 1984, he was exposed to high levels of hazardous noise. He further stated that his exposure to loud noise was reduced significantly when he started working at the power plant in 1984. Claimant testified that he has used hearing protection for the last twelve or thirteen years. Claimant testified that for the last twenty years, he has had trouble hearing during conversations in person and over the phone. Claimant testified that he would have to turn the volume up on the radio in order to hear it and that it was especially hard for him to hear someone else talking if there was background noise.
Claimant admitted that he first suspected he had a hearing problem soon after working for employer because his wife repeatedly asked him to get his hearing checked. In addition, claimant testified that he was told by a physician during a 1990 commercial driver's license physical that his hearing loss might prohibit him from receiving a commercial driver's license in the future. Claimant also stated that he was aware that exposure to loud noise could cause hearing loss and that his employment regularly exposed him to hazardous noise. Finally, claimant testified that after he became aware of his hearing loss, he tried to protect his hearing as much as possible by wearing hearing protection whenever he was around loud noises, both at home and at work.
Claimant presented the medical report of Dr. Bell in support of his claim petition. Based upon the results of the audiogram and examination, Dr. Bell found that claimant's loss of hearing was caused by or related to claimant's work duties and that claimant's bilateral hearing loss was 17.19%. Dr. Bell did not comment on when this injury occurred or whether the injury continues to occur.
Claimant also offered the medical report of Dr. Kamerer, the physician who performed an independent medical examination of claimant. Dr. Kamerer found that claimant's bilateral hearing loss was 19%.
The WCJ found that claimant did not give employer notice of his injury until September 25, 1995, when his attorney sent employer a certified letter. The WCJ found the testimony of claimant credible regarding his exposure to hazardous noise. The WCJ found Dr. Bell's and Dr. Kamerer's reports credible and consistent with one another.
Based on the foregoing, the WCJ found as follows:
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