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LTV Steel Co. v. Workers' Compensation Appeal Board8/30/2000
ed a single opinion that controls the outcome of this issue. The Supreme Court states:
Because there is no way to distinguish, scientifically or mathematically, the amount of hearing loss caused by acoustic trauma from that caused by the aging process, and Act 1 provides for no standard to measure presbycusis, we find that Act 1 of 1995 does not permit a deduction from a claimant's total binaural hearing impairment for that portion of the impairment caused by presbycusis. Therefore, you can not deduct that portion of the impairment caused by presbycusis from the total binaural hearing impairment. Id. at 677 (footnote omitted).
Thus, according to Mozena the WCJ here did not err by failing to deduct for an age-related hearing loss.
Employer next argues that the WCJ incorrectly concluded that as of 1974 no new employer existed. Employer further argues that pursuant to Section 306(c)(8)(vi) of the Act, it should not be liable for any impairment caused by the former employer. This issue was also raised and fully discussed by the Supreme Court in Mozena. In fact, LTV Steel Company, Inc. was the employer in Mozena and is the same entity that raises this issue here. Additionally, Mr. Katz was the witness, whose testimony was reviewed in Mozena, and again is the witness here.
The Supreme Court reiterated Mr. Katz's testimony including his testimony on cross-examination that "as the successor-in-interest of J&L; LTV assumed all of J&L;s assets, as well as all of its liabilities, including its workers' compensation claims existing at the time of the 1974 merger. LTV became responsible for paying all claims that arose before 1974." Id. at 677. The Supreme Court then explained that:
It is well established law in the Commonwealth that that when corporations merge the surviving corporation succeeds to both the rights and liabilities of the constituent corporation....If we allowed a surviving company to deny responsibility for hearing loss caused by its predecessor, we would be sanctioning corporate restructuring as a means of escaping liability. We agree with the Commonwealth Court that such a result would not advance the humanitarian objectives of the Act. Id. at 677 (citations omitted).
Accordingly, the Supreme Court resolved this issue by stating as follows:
We also find that LTV is liable for the full hearing loss suffered by Mozena. The mergers, acquisitions, or other changes in corporate structure occurring from 1974 to 1984 did not constitute the creation of a new employer for determining the amount of hearing loss caused by any one employer. We have looked at the totality of the circumstances concerning the acquisition of the corporation, and the conditions that make certain that the new owner is a successor-in-interest and not a new employer, and we find, therefore, there was substantial evidence to conclude that LTV was the sole employer of Mozena. Id. at 677-78.
Employer attempts to distinguish Mozena from the case before us by relying on the fact that although Mr. Katz admitted that LTV agreed to assume liability for all J&L;workers' compensation claims existing at the time of the merger, the present claim was not existing at the time and, therefore, Mr. Katz's testimony should not be considered an admission that Employer here had accepted responsibility for a new claim caused in part by Employer's predecessor. This argument attempts to make a distinction without a difference. The Supreme Court cited Section 306(c)(8)(vi) of the Act, recognizing that an employer may establish hearing impairment caused by a previous employer at a time prior to the time of employment. However, this provision of the Act d
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