[J-105-2000] IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT
: : : : v. : : WORKERS’ COMPENSATION APPEAL : BOARD (BELL ATLANTIC: PENNSYLVANIA, INC.) : : : : : APPEAL OF: BELL ATLANTIC: PENNSYLVANIA, INC :
No. 94 WAP 1999 Appeal from the Order of the Commonwealth Court entered on 3/8/99 at No. 1984CD1998 reversing the Order of the Workers’ Compensation Appeal Board entered 7/1/98 at A97-1287 and remanding for recalculation of benefits
725 A. 2d 1276 (Pa. Cmwlth. 1999) Argued: September 11, 2000
CONCURRING OPINION MR. JUSTICE NIGRO DECIDED: November 5, 2001
I agree with the majority that Claimant is entitled to benefits. I write separately, however, because I do not agree with the majority that the term “date of injury” in Section 306(c)(8) applies to the 120-day notice period in Section 311. Instead, I would affirm the Commonwealth Court’s conclusion that the term “date of injury” in subsection 306(c)(8)(ix) pertains solely to Section 306(c)(8)’s scheme for calculating partial hearing loss benefits.
Indeed, subsection 306(c)(8)(ix) specifically defines “[t]he date of injury for occupational hearing loss under subclause (i) of this clause [Section 306(c)(8)].” 77 P.S. § 513(8).
Under Section 306(c)(8)’s scheme, a court must calculate a claimant’s benefits by using the claimant’s wages as of his “date of injury,” which as defined by that section, is either the claimant’s wages when he filed a claim, or the claimant’s wages on the last day the
The fact that the General Assembly did not intend Section 306(c)(8)’s definition of “date of injury” to also apply to Section 311’s notice provisions is clear because the General Assembly left Section 311 unamended and Section 306(c)(8), as amended, makes no reference to Section 311. Moreover, Section 306(c)(8)’s definition does not logically work with Section 311. If the date of injury is defined for purposes of Section 311 as the date a claimant files a claim petition, there would be no need for Section 311 to require a claimant to give an employer notice within 120 days following an injury. The claim petition itself would serve as notice to the employer. Thus, I agree with the Commonwealth Court that the General Assembly did not intend for the amendment to Section 306(c)(8) to affect the time period for instigating Section 311’s notice period. Furthermore, I agree with the Commonwealth Court that Section 311’s notice period should be triggered on the date a claimant is informed by a physician or other health care provider that he suffers from a work-related hearing loss of ten percent or greater. This rule definitively protects claimants who have been away from the workplace for over 120 days and later learn that they have suffered a work-related hearing impairment in excess of ten percent. While this rule extends an employer’s liability to claims by claimants who are no longer exposed to occupational noise, an employer may, as the majority suggests, conduct periodic audiometric tests or periodic physical exams of employees in order to discover potential claimants and protect itself from delayed claims. Applying this rule to the instant case, Claimant notified Bell Atlantic well within Section 311’s time limits because Claimant
(…continued) claimant was exposed to occupational noise. As noted by the Commonwealth Court, the latter case is meant to apply to a claimant who is unemployed or retired when he discovers his hearing loss. Because the claimant in that case does not have any current earnings upon which to base an award, a court may look to the claimant’s earnings upon his last date of exposure to occupational noise.
was not informed by his doctor that he suffered from a ten percent hearing loss due to industrial noise exposure until September 6, 1995 and Claimant filed his claim petition on September 25, 1995. Thus, Claimant is entitled to benefits.
Justice Cappy joins in this concurring opinion.