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LTV Steel Co. v. Workers' Compensation Appeal Board8/30/2000
Corporation are one entity for purposes of Act 1, despite the characterization of J&L;Steel as a wholly owned subsidiary of LTV Corporation.
(d) LTV Corporation did not discharge its liabilities under the Pennsylvania Workers' Compensation Act by merging its two wholly owned steel subsidiaries, J&L;Steel and Republic Steel, to create LTV Steel Company. LTV Corporation operated all of its steel subsidiaries as a unified company. (Depo. of Mark Katz, Esquire, p. 25). Accordingly, when LTV Steel Company became the sole remaining steel subsidiary of LTV Corporation through the merger of J&L;Steel and Republic Steel Company, LTV Steel Company, in addition to its parent company LTV Corporation, became the claimant's employer for purposes of Act. 1.
(e) The claimant has been employed by one "employer" for purposes of Act 1 during his 40 year employment history. (WCJ's decision, pp. 5-6).
Thus, the WCJ concluded that Claimant met his burden of proving that he had sustained a binaural hearing loss of 15% as a result of exposure to hazardous occupational noise at work. The WCJ also concluded that Employer had failed to prove that Claimant was employed by a separate employer. Accordingly, the WCJ granted Claimant's petition. On appeal the Board affirmed.
Employer now appeals to this Court, and raises the following issues for our review: (1) whether age-related hearing loss should be considered when determining the amount of binaural hearing impairment caused by exposure to occupational noise, (2) whether merger, acquisition or other changes to the corporate entity should constitute the creation of a new employer for purposes of determining that amount of hearing loss attributed to that employer, and (3) whether the date of injury should be based on when a claimant's use of hearing protection prevented injurious noise exposure.
Employer first argues that Act 1 does not absolutely preclude evidence of age-related causation of hearing loss, which Employer describes as a non-occupational cause of hearing loss as set forth in Section 306(c)(8)(vi) of the Act, 77 P.S. ยง513(8)(vi), which 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. Employer relies on Cooper Power Systems v. Workers' Compensation Appeal Board (McFarland), 722 A.2d 746 (Pa. Cmwlth. 1998), and Washington Steel Corporation v. Workers' Compensation Appeal Board (Waugh), 734 A.2d 81 (Pa. Cmwlth. 1999), and argues that these two cases recognize that a claimant has the burden of providing credible medical evidence on the issue of causation and on the amount of hearing impairment caused by exposure to occupational noise and that the WCJ may accept testimony regarding age-related hearing loss. Employer further contends that LTV Steel Company, Inc. v. Workers' Compensation Appeal Board (Mozena), 727 A.2d 160 (Pa. Cmwlth. 1999), petition for allowance of appeal granted, ___ Pa. ___, 743 A.2d 924 (1999), and USX Corp. V. Workers' Compensation Appeal Board (Rich), 727 A.2d 165 (Pa. Cmwlth. 1999), petition for allowance of appeal granted, ___ Pa. ___, 743 A.2d 925 (1999), stand for the proposition that employers are precluded from offering evidence of age-related causation of hearing impairment and that these cases are inconsistent with McFarland and Waugh.
Since Employer filed its brief, the Supreme Court consolidated Mozena and Rich and render
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