L. F. Reagle v. WCAB (Werner Co.) (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Larry F. Reagle, Petitioner v. Workers Compensation Appeal Board (Werner Co.), Respondent BEFORE: : : : : No. 2163 C.D. 2007 : Submitted: March 14, 2008 : : : HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE PELLEGRINI FILED: April 15, 2008 Larry F. Reagle (Claimant) petitions for review of an order of the Workers Compensation Appeal Board (Board) reversing the decision of the Workers Compensation Judge (WCJ) and denying him workers compensation benefits because he failed to establish a binaural hearing impairment of ten percent as required by Section 306(c)(8) of the Workers Compensation Act (Act).1 1 Act of June 2, 1915 P.L. 736, as amended, 77 P.S. §§513(8)(i) and (iii). That section provides, in relevant part: (i) For permanent loss of hearing which is medically established as an occupational hearing loss caused by long-term exposure to hazardous occupational noise, the percentage of impairment shall be calculated by using the binaural formula provided in the Impairment Guides. (Footnote continued on next page ¦) Claimant filed a claim petition on May 2, 2005, alleging that he had sustained a work-related hearing loss as of May 2003 from exposure to hazardous occupational noise. Werner Company (Employer) filed an answer denying the allegations and the claim proceeded to a hearing before a WCJ. Claimant asserted that he suffered from a work-related 21.876 percent hearing loss in his right ear. No claim was made for hearing loss in his left ear because, when he was seven years old, Claimant suffered a head injury which caused a 100 percent hearing loss in that ear. Employer defended by alleging that Claimant s binaural hearing impairment was not greater than ten percent under the formula prescribed by Section 306(c)(8) of the Act. At the hearing before the WCJ, Claimant testified that he was 60 years of age and that he had begun working for Employer in 1968 in its extrusion department. This work involved loading billets onto large presses which created very loud noises because of the size of the engines. He testified that was not provided with hearing protection for the first several years of his employment, and when ear (continued ¦) The number of weeks for which compensation shall be payable shall be determined by multiplying the percentage of binaural hearing impairment as calculated under the Impairment Guides by two hundred sixty weeks. Compensation payable shall be sixty-six and two thirds per centum of wages during this number of weeks, subject to the provisions of clause (1) and subsection (a) of this section. *** (iii) [N]otwithstanding this clause, if there is a level of binaural hearing impairment as calculated under the Impairment Guides which is equal to or less than ten per centum, no benefits shall be payable. 2 plugs were later made available, he would often have to remove them to communicate because of the high noise level. Claimant testified that he noticed a gradual loss of hearing in his right ear over a period of years. Claimant admitted that he was a left-handed shooter who occasionally discharged a rifle without hearing protection, but he had never noticed any impact on his hearing because of that activity. Stephen Froman, (Dr. Froman) M.D., a board certified otolaryngologist, testified that he had conducted an evaluation of Claimant s hearing in August 2004, finding marginal to severe hearing loss in his right ear. He calculated Claimant s binaural impairment under the American Medical Association (AMA) Guidelines as 38.542 percent. He opined that the hearing loss in Claimant s right ear was caused by cumulative exposure to loud noise while working for Employer. Dr. Froman further testified that assuming Claimant had a total 100 percent loss of hearing in his left ear when he began working for Employer, his binaural impairment at the start of his employment could be calculated at 16.6 percent. By then subtracting 16.6 percent impairment from Claimant s current impairment of 38.542 percent, one could arrive at an impairment of 21.876 percent caused by exposure to noise. During cross- examination, Dr. Froman admitted that his apportionment method was not part of the AMA formula, but stated that his method of apportionment would not result in Claimant being compensated for a non-work-related loss.2 Further, according to the 2 According to the AMA s Guide to the Evaluation of Impairment (4th Ed. 1993), binaural impairment is determined by means of the following formula: Binaural Impairment (%) = {5 x (% hearing impairment in better ear) + (% hearing impairment in poorer ear) } / 6. 3 AMA s Guide to the Evaluation of Permanent Impairments, the apportionment method used by Dr. Froman separated an occupationally induced loss from a loss that was completely separated in time, and Dr. Froman indicated that the apportionment approach was endorsed by the Committee on Conservation of Hearing of the American Academy of Ophthalmology and Otolaryngology. In defense of the claim, Employer presented the testimony of Douglas Chen, (Dr. Chen) M.D., also a board certified otolaryngologist. He testified that his examination revealed 100 percent impairment in Claimant s left ear and 30 percent impairment in his right ear, resulting in a binaural impairment of 41.67 percent. In Dr. Chen s opinion, however, to calculate the portion of loss attributable to occupational noise, one should use a figure of zero percent impairment in the left ear and one would arrive at a binaural impairment of five percent due to occupational noise. On cross-examination, Dr. Chen admitted that he had employed the apportionment method in the past, but believed that to use that method in the present case would result in introducing non-occupational factors into the calculation of impairment. Dr. Chen also admitted that under the method he used, a claimant with a complete non-occupational loss in one ear would have to sustain an impairment of at least 50 percent in the other ear to meet the ten percent threshold required by the Act, but such a high level of impairment would not be impossible to achieve. The WCJ found Claimant s testimony to be credible and further determined that as both experts admitted that Claimant did sustain an occupational hearing loss in his right ear, the real issue involved the manner of calculating the impairment. The WCJ adopted the apportionment method used by Dr. Froman, 4 distinguishing the instant case from Williams v. Workers Compensation Appeal Board (Trinity Industries), 841 A.2d 164 (Pa. Cmwlth. 2004), because Dr. Froman testified that the method he employed would not result in Claimant receiving compensation for non-work-related hearing loss. Employer then appealed to the Board. In its opinion, the Board found that the WCJ erred when he relied on Dr. Froman s method of calculating Claimant s compensable impairment and held that the present case was not distinguishable from Williams and reversed. Claimant then appealed to this Court.3 On appeal, Claimant maintains that the Board inappropriately relied on Williams, which, in turn, relied on Kerstetter v. Workers Compensation Appeal Board (Pennsylvania Steel Technology), 772 A.2d 1051 (Pa. Cmwlth. 2001), to reject the apportionment method used by Dr. Froman in calculating binaural hearing loss where a claimant has suffered a 100 percent non-work-related impairment in one ear. In Kerstetter, we held that where there is a work-related hearing loss due to long-term exposure to hazardous noise, Section 306(c)(8) of the Act provides that benefits may only be awarded on a binaural basis, and the amount of hearing loss must be determined using the binaural formula. Correct application of that formula does not consist of including Claimant s non-work-related hearing loss in the 3 Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed or whether necessary findings of fact were supported by substantial evidence. Sheridan v. Workmen s Compensation Appeal Board (Anzon), 713 A.2d 182 (Pa. Cmwlth. 1998). 5 formula. In Williams, we specifically rejected the apportionment method advanced by Claimant in the present case4 and noted that the formula employed by Employer s medical expert, which used a zero percent impairment for the weaker ear, was the formula that had been adopted in Kerstetter. We commented in Williams that the claimant s own expert admitted that the apportionment method would result in a claimant being partially compensated for a non-work-related hearing loss. Claimant argues that Dr. Froman never testified in Williams that the apportionment method would result in a claimant being partially compensated for a non-work-related hearing loss, and that, in this case, he emphatically stated that the apportionment method would not result in any improper compensation. Even if that is true, that comment does not take away from the central holding in Kerstetter and Williams: that in calculating a work-related hearing loss under Section 306(c)(8) of the Act, the correct application of the formula to be used when a case involves a claimant who has a total, non-work-related impairment in one ear is to use zero percent to represent the level of impairment of the weaker ear, not 100 percent as used by Dr Froman. Because the Board properly found that the WCJ improperly applied the apportionment method to determine Claimant s hearing loss, the Board s decision is affirmed. _______________________________ DAN PELLEGRINI, JUDGE 4 Claimant s expert, Dr. Froman, is the same expert who was used by the claimant in Williams. 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Larry F. Reagle, Petitioner v. Workers Compensation Appeal Board (Werner Co.), Respondent : : : : No. 2163 C.D. 2007 : : : : ORDER AND NOW, this 15th day of April, 2008, the October 25, 2007 order of the Workers Compensation Appeal Board is affirmed. _______________________________ DAN PELLEGRINI, JUDGE
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