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LTV Steel Co. v. Workers' Compensation Appeal Board8/30/2000
oes not apply unless it has been established that there was a prior employer that contributed to the claimant's hearing loss. Here, it has been established that Claimant worked for one employer.
Therefore, all hearing loss is attributable to Employer including the loss that occurred prior to 1974 and certainly the loss from that date forward.
Employer's third argument concerns whether Claimant's use of hearing protection beginning in 1986 should alter the date of injury. Initially, Employer requests a remand to establish a date of injury, because the WCJ did not specifically designate a date of injury and the Board utilized the date when Claimant filed his claim petition. We note, however, that in Finding of Fact No. 1, the WCJ states that in Claimant's petition, filed on May 12, 1995, Claimant alleges an injury date of May 5, 1995 and provided notice to Employer on May 8, 1995. This statement by the WCJ acknowledges Claimant's averment of an injury date. Moreover, we conclude that the Board correctly relied on Section 306(c)(8)(ix) of the Act, 77 P.S. §513(8)(ix), since Claimant continues to be employed by Employer.
Under these circumstances, the determination of an injury date based on the filing of the claim petition stands unless the employer proves that at a certain point the claimant was no longer exposed to hazardous occupational noise. See Section 306(c)(8)(x) of the Act. Recognizing this, Employer contends that the use of hearing protection effectively eliminated Claimant's exposure to hazardous occupational noise, relying on Toth v. Workers' Compensation Appeal Board (USX Corp.), 737 A.2d 838 (Pa. Cmwlth. 1999) (industrial hygienist's credible testimony supported a finding that the claimant was not exposed to hazardous occupational noise).
In response, Claimant argues that the record contains no support for a finding that he was no longer exposed to the requisite amount of noise after he began using hearing protection. Claimant also relies on the Act itself, specifically, Section 105.4 of the Act, 77 P.S. §25.4, which defines hazardous occupational noise as "noise levels exceeding permissible noise exposures as defined in Table G-16 of OSHA Occupational Noise Exposure Standards, 29 CFR 1910.95 (relating to occupational noise exposure) (July 1, 1994)." Additionally, 29 CFR 1910.95(c) provides that for hearing conservation programs "employee noise exposure shall be computed ... without regard to any attenuation provided by the use of personal protective equipment."
Claimant also relies on Meadville Forging Co. v. Workers' Compensation Appeal Board (Artman), 747 A.2d 958 (Pa. Cmwlth. 2000), a case that holds that based on the correlation between the Act and its references to OSHA standards and regulations, the question whether an employee is exposed to long-term hazardous noise is to be measured without the use of hearing protection devices. Claimant has correctly stated this Court's holding in Artman and based on that holding Employer's last argument must fail.
For the reasons stated above, we affirm the Board's decision in this matter.
SAMUEL L. RODGERS, Senior Judge
ORDER
NOW, August 30, 2000 , the order of the Workers' Compensation Appeal Board, at No. A97-2235, dated December 15, 1999, is affirmed.
SAMUEL L. RODGERS, Senior Judge
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