[J-105-2000] IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT
EMIL SOCHA, Appellee
v.
WORKERS' COMPENSATION APPEAL BOARD (BELL ATLANTICPENNSYLVANIA, INC.), APPEAL OF: BELL ATLANTICPENNSYLVANIA, INC
: : : : : : : : : : : : : :
No. 94 WAP 1999 Appeal from the order of the Commonwealth Court entered on 3/8/99 at No. 1984CD98 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 CAPPY
DECIDED: November 5, 2001
I agree with the majority that the Appellant, Emil Socha, ("Socha"), satisfied the notice requirement of §631 of the Worker's Compensation Act, 77 Pa. C.S. §§1 et seq. (the "Act"), and is, therefore, entitled to benefits. I disagree, however, with the interpretation of 77 P.S.§513 (8)(ix) that underlies the majority's result. Instead, my views coincide with those reflected in Justice Nigro's concurring opinion. I, too, believe that when the General Assembly amended the Act in 1995, it intended §513(8)(ix) to govern the calculation of compensation for hearing loss claims, and did not intend it to displace the traditional application of the discovery rule set forth in §631 for determining the timeliness of an
employee's notice.1 I write separately to emphasize my belief concerning the point at which §631's notice period begins to run in hearing impairment cases. In my view, an employee neither knows nor has reason to know of a hearing loss for purposes of triggering the 120-day notice period in §631 until he is informed by a physician or other health care provider that his permanent hearing loss exceeds the ten percent threshold requirement of the Act, and that the impairment is possibly work-related. My view is based on the slowly progressive and insidious nature of the disability, and on the plain language of §631, which requires an employee to know, not merely to suspect or to believe, that he has sustained a work-related injury. 77 P.S. §631. In the case sub judice, it is evident from the record that prior to receipt of a medical diagnosis on September 6, 1995, Socha did not know nor did he have reason to know that he had suffered a compensable hearing loss due to industrial noise exposure within the meaning of §631. Socha's September 25, 1995 notice was, therefore, timely. Accordingly, I join the majority's decision to affirm the Commonwealth Court's order. I also join Justice Nigro's concurring opinion.
1
This is, I believe, the essence of the Commonwealth Court's decision. Socha v. WCAB (Bell Atlantic PA), 725 A.2d 1276 (Pa. Cmwlth. 1999). I find great merit in the Commonwealth Court's interpretation of 77 P.S. §513(8)(ix), and fully agree with the court's application of the discovery rule in 77 P.S. §631.
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