The full case caption appears at the
end of this opinion. OPINION BY SENIOR JUDGE RODGERS General Electric Company (Employer) petitions for review of an order of the Workers’ Compensation Appeal Board that affirmed a decision of a workers’ compensation judge (WCJ) granting John Rizzo’s (Claimant) claim petition requesting benefits for a binaural hearing loss suffered as a result of long-term exposure to hazardous occupational noise. We affirm. Claimant has worked for Employer in various capacities for over thirty-two years and continues to work for Employer presently. On March 30, 1995, Claimant filed a claim petition, alleging that he suffered an occupation hearing loss resulting from his exposure to noise at work. Claimant identified the date of injury as December 20, 1994, the date he was examined by Stephen M. Froman, M.D. Employer denied the allegations and the matter was assigned to a WCJ. Claimant testified about his work history, indicating that since the age of twenty in 1962 and except for a period of military service between 1964 and 1966 he has worked for Employer. He further testified in detail that throughout the years of work for Employer he was exposed to noise from machines such as lathes, radial drills, tape machines, robotics and drills. He acknowledged that for the most recent year prior to filing his petition he worked as a gauge calibrator, describing it as a quieter job. Claimant also explained that for the last eight or nine years he wore hearing protection as required by Employer. Claimant acknowledged that he was an occasional hunter and used a power mower and other power tools off the job. Claimant submitted into evidence the reports of Krishnan K. Nair, M.D., a physician who in September of 1993 examined Claimant at the request of Employer; however, Claimant indicated he was never apprised of the results of Dr. Nair’s examination.
[FOOTNOTE 1] Claimant also presented the reports of Stephen M. Froman, M.D., who examined Claimant on December 20, 1994, and informed Claimant on February 27, 1995, that he believed that Claimant’s bilateral hearing loss was a result of Claimant’s total, cumulative exposure to loud noise at work. Dr. Froman opined that based upon the American Medical Association’s Guide to the Evaluation of Permanent Impairment, 4th Ed., July 1993 (AMA Guidelines), Claimant had a 10.9375 percent binaural handicap. Dr. Froman indicated that no causal relationship existed between hypercholesterolemia
[FOOTNOTE 2] and Claimant’s neurosensory hearing loss. Dr. Froman also ruled out that presbycusis
[FOOTNOTE 3] contributed in any significant way to Claimant’s hearing loss. The doctor based this opinion on the fact that Claimant began complaining of progressive hearing loss beginning at age forty-two, an age that Dr. Froman indicated is significantly younger than when presbycusis begins in the general population. With regard to Claimant’s asymmetrical hearing loss, Dr. Froman explained that the degree of asymmetry is not unusual and in fact is consistent with noise induced hearing loss. In defense of the claim petition, Employer submitted the deposition testimony of Sidney N. Busis, M.D., who examined Claimant on August 21, 1995. Dr. Busis testified that at the time he examined Claimant, Claimant had a binaural hearing impairment of 19.1 percent pursuant to the AMA Guidelines, with a 30 percent impairment in the right ear and a 16.9 percent impairment in the left ear. Dr. Busis opined that Claimant’s hearing impairment was not caused by exposure at work, but was a result of “a combination of factors including gunfire, recreational shooting, heredity (as there is a family history of hearing loss), the natural hearing loss attributable to age and a systemic disease, hyperlipidemia.[
[FOOTNOTE 4] ]” (WCJ’s decision, p. 4). Employer also presented the testimony of Kathy Park, a registered nurse and nurse supervisor for Employer, who performed hearing tests for Employer. Alfred Faipler, Claimant’s supervisor from January, 1992 until July, 1994, also testified. Mr. Faipler indicated that he made periodic checks to determine whether employees were compliant with Employer’s mandated hearing protection program and that he never found Claimant without his earplugs. Employer also presented the testimony of Jeffrey Goller, Employer’s manager of industrial hygiene, whose responsibilities included monitoring employee health relative to exposure at work to chemicals, gases, heat, noise and radiation, etc. Mr. Goller explained Employer’s mandatory hearing protection program, but acknowledged that he did not routinely check whether the hearing protection supplied to employees fit properly. Following a detailed recitation of the evidence presented by the parties, the WCJ found as follows:
13. Based upon all the evidence of the record, this Judge makes the following findings:
a. The claimant has a permanent loss of hearing which has been medically established as an occupational hearing loss, caused by long term exposure to hazardous occupational noise. In so finding, this Judge has credited the testimony of the claimant wherein the claimant detailed his noise exposure throughout his employment at General Electric. In addition, this Judge has accepted the medical opinion of Dr. Froman over that of Dr. Busis. This Judge was unpersuaded by Dr. Busis’ opinion that the claimant’s hyperlipidemia caused his hearing loss and that the claimant could not have experienced occupational hearing loss when using hearing protection. The claimant worked for years in a noisy work environment prior to the use of hearing protection. According to Mr. Goller, the industrial hygienist whose testimony is accepted as credible, testified [sic] as to the noise levels in the various plants at GE, indicated that the claimant worked for long periods of time exposed to noise above 80 to 85 decibels on a weighted average. Additionally, while it is true that General Electric provided hearing protection for its employees and in some instances, mandated such protection, Mr. Goller acknowledged that General Electric did not know the effectiveness of such hearing protection.
b. The testimony of Kathy Park is accepted as credible insofar as she testified as to the hearing test procedures performed at GE. Additionally, the testimony of Alfred Faipler who, for a time, was the claimant’s supervisor, is also accepted as credible. While Mr. Faipler testified that he would “spot check” to make sure that the claimant used hearing protection, this Judge is not persuaded that the use of hearing protection precludes a medical finding of occupational hearing loss.
c. This Judge finds as fact that the claimant gave notice pursuant to Section 311 of the Pennsylvania Workers’ Compensation Act [, 77 P.S. �631,] on March 30, 1995, the date he filed the Claim Petition. As the claimant was first notified by Dr. Froman of the direct relationship between his hearing loss and his occupational exposure, on February 27, 1995, this Judge finds as fact that the notice provided to the employer was timely.
d. In accepting the opinions of Dr. Froman, this Judge finds as fact that the percentage of binaural impairment is 10.9375 percent.
(WCJ’s decision, pp. 6-7). The WCJ concluded that Claimant had carried his burden of proof and ordered Employer to pay benefits. Employer appealed to the Board, which affirmed. Employer now appeals to this Court, [FOOTNOTE 5] arguing that the WCJ’s findings are not supported by substantial evidence and are in conflict with Act 1 of 1995 (Act 1), Act of February 22, 1995, P.L. 1. In particular, Employer argues that Claimant was not exposed to long-term hazardous occupational noise as set out in Section 306(c)(8)(x) of the Act, 77 P.S. �513(8)(x), [FOOTNOTE 6] in that its evidence showed that Claimant was not exposed to noise at or above permissible levels as defined by OSHA standards. Employer also argues that the WCJ refused to consider Claimant’s use of protective devises that reduced the noise exposure, relied on Claimant’s and his medical witness’ subjective opinions rather than Employer’s objective evidence, and disregarded Claimant’s testimony concerning non-work-related factors that Employer believes impacted Claimant’s hearing loss. Lastly, Employer argues that because the evidence proves that Claimant was last exposed to hazardous levels of noise in 1985, the claim petition was filed more than three years after Claimant’s last exposure, thus, the filing of the claim petition does not fall within the three year statute of limitations provision of Act 1. See Section 306(c)(8)(viii) of the Act, 77 P.S. �513(8)(viii). [FOOTNOTE 7] Although the above, enumerated arguments are posited as attacking the WCJ’s findings under the guise of substantial evidence, much of what is argued is in reality an attack on the WCJ’s credibility determinations. As often stated by this Court, the WCJ is the sole arbiter of questions of credibility and may accept or reject the testimony of any witness in whole or in part. Stevens v. Workers’ Compensation Appeal Board (Consolidated Coal Co.), 720 A.2d 1083 (Pa. Cmwlth. 1998). Employer recognizes that pursuant to Section 306(c)(8)(x) of the Act, 77 P.S. �513(8)(x), it has the burden to put forward affirmative defenses concerning an employee’s exposure to hazardous occupational noise. It attempted to do so with testimony from its witnesses; however, the WCJ’s credibility determinations regarding these witnesses testimony was such that Employer failed to convince the WCJ that it affirmatively proved that Claimant was not exposed to the requisite hazardous noise. Employer attempts to convince this Court that Act 1 requires that noise exposure must equate with or exceed the OSHA guidelines for hazardous noise set forth in Table G-16 of OSHA’s Occupational Noise Exposure Standards (OSHA Standards), 29 C.F.R. 1910.95, before a claim is compensable. Relying on this Table, Employer states that “it is clear under Act 1 that in order for hearing loss to be compensable, the claimant must have been exposed to noise at work of at least 90 decibels over an 8 hour day.” (Employer’s brief, p. 25). Claimant responds that the WCJ is not compelled to find that Claimant was not exposed to the levels listed in the OSHA Standards based on Employer’s witnesses’ testimony. In other words, the OSHA Standards are not the measuring stick by which a WCJ must evaluate Claimant’s exposure to determine whether the conditions at the plant were “hazardous.” Claimant contends that Employer failed to meet its burden of proof as to the affirmative defenses provided for in Act 1. Although Claimant’s position on this issue is based upon his belief that this is again a credibility determination for the WCJ, we believe that beyond the credibility of the witnesses’ testimony, Employer has raised an issue regarding the interpretation of Act 1, i.e., whether the minimum level of exposure must comport with OSHA Standards before a work-related hearing loss can be deemed compensable. Section 306(c)(8)(iv) of the Act, 77 P.S. �513(8)(iv) states:
(iv) The percentage of hearing impairment for which compensation may be payable shall be established solely by audiogram. The audiometric testing must conform to OSHA Occupational Noise Exposure Standards, 29 CFR 1910.95 (relating to occupational noise exposure) and Appendices C, D, and E to Part 1910.95 (July 1, 1994).
This subsection of Act 1 requires that hearing impairment testing shall be done by audiogram and that the testing be done in a manner that comports with the federal standards. It does not require nor state that the level of exposure must be found to be above a certain level to be characterized as “hazardous” before a compensable hearing loss can be established. [FOOTNOTE 8] Therefore, whether or not a claimant’s exposure is above or below the decibel level that triggers an employer’s need to adhere to the federal regulations, that level is not the measure of whether a claimant may have a compensable hearing loss. Nowhere in Act 1 is the word “hazardous” defined to mean exposure above a certain decibel level. Here, Employer does not dispute that Claimant was exposed to noise at work; Employer only disputes the level of noise exposure. By way of Dr. Froman’s reports, Claimant provided evidence, believed by the WCJ, that met his burden under Section 306(c)(8)(i), 77 P.S. �513(8)(i) [FOOTNOTE 9] . If Employer had provided evidence, believed by the WCJ, that the noise level at work did not cause Claimant’s hearing loss, the Employer would have met its burden under the affirmative defense subsection. 77 P.S. �513(8)(x). Employer did not do so, therefore, we conclude that the WCJ did not err in granting benefits to Claimant. Next, Employer argues that the WCJ did not consider Claimant’s use of protective devises that Employer contends lessened Claimant’s exposure. Again this argument rests on a credibility determination. Although the WCJ believed Mr. Goller’s testimony concerning the noise levels in the plant, Claimant’s level of exposure and the implementation of the hearing protection program, the WCJ specifically noted that Mr. Goller did not know the effectiveness of the hearing protection. Therefore, the WCJ choose not to take the protective measures into consideration. The WCJ did not err in this regard. Nor did the WCJ err in relying on opinion evidence and testimony that Employer denotes as “subjective” over that of its witnesses’ “objective” evidence. These are credibility decisions for the WCJ. Stevens. Employer’s final issue concerns the timeliness of the filing of Claimant’s claim petition. [FOOTNOTE 10] Relying on the three year statute of limitations section of Act 1, Section 306(c)(8)(viii), and the evidence Employer believes establishes a last exposure in 1985, Employer contends that Claimant’s claim is time barred. Again Employer argues facts concerning the levels of exposure, contending that Claimant was not exposed to noise above OSHA’s threshold levels. However, the WCJ chose to accept Claimant’s description of his work environment and portions of Mr. Goller’s testimony, finding that Claimant’s exposure to hazardous occupational noise continued beyond 1985. Section 306(c)(8)(ix) of the Act, 77 P.S. �513(8)(ix), provides guidance in addressing Employer’s statute of limitation argument. As discussed in Socha v. Workers’ Compensation Appeal Board (Bell Atlantic PA), ___ A.2d ___ (Pa. Cmwlth. No. 1984 C.D. 1998, filed March 8, 1999), the Act now provides for partial hearing loss and the inclusion of subsection 8(ix) was intended by the General Assembly to statutorily define the date of injury for calculating compensation as set forth in subsection (8)(i). Subsection (8)(ix) states:
The date of injury for occupational hearing loss under subclause (i) of this clause shall be the earlier of the date on which the claim is filed or the last date of long-term exposure to hazardous occupational noise while in the employ of the employer against whom the claim is filed.
The question that Employer raises here centers on whether the claim was filed within three years “after the date of last exposure to hazardous occupation noise�.” Subsection (8)(viii). Obviously, Employer is contending that the earlier date to be used for statute of limitation purposes is the date of last exposure rather than the date the petition was filed. However, in addition to our review of the WCJ’s findings and our dismissal of Employer’s arguments concerning a lack of substantial evidence to support findings that Claimant continued to be exposed to occupational noise, we rely on LTV Steel Co., Inc. v. Workers’ Compensation Appeal Board (Mozena), ___ A.2d ___ (Pa. Cmwlth. No. 2298 C.D. 1998, filed March 16, 1999), wherein the Court addressed a similar issue. The employer in Mozena argued that because the WCJ failed to determine a specific date of injury the Board’s order should be reversed or at a minimum a remand should be ordered. In response, the Mozena court stated that “[b]ecause Claimant was still working for Employer on the date he filed his claim petition for hearing loss benefits, the date of injury can only be the date that the claim was filed�.Any error then resulting from the failure to specify a date of injury in this case is harmless.” Id., slip op. at 9. In the case before us, we note that although the WCJ acknowledges Claimant’s identification of the date of injury as the date of his examination by Dr. Froman, the WCJ does not specifically state a date of injury. However, the WCJ relies on the date the claim was filed for purposes of finding timeliness for the 120-day notice rule. We further recognize that Claimant has continued to work for Employer and on that basis the Board, without citation, held that the date of the filing of the claim petition was the operative date of injury. We agree, relying on Mozena and Sellari v. Workmen’s Compensation Appeal Board (NGK Metals Corp.), 698 A.2d 1372, 1376 (Pa. Cmwlth. 1997) (“[W]hen an employee has ceased working, the date that must be used to determine calculation for benefits for specific loss of use of hearing is the date of last exposure.”) Taking all of the above into consideration, we conclude that because Claimant continues to work for Employer and because Employer failed to prove that Claimant’s last exposure occurred at some time prior to the filing of the claim petition, the date Claimant filed his claim petition is the operative date. It is, therefore, timely pursuant to Section 306(c)(8)(viii). Lastly, we must address Claimant’s request for attorney’s fees pursuant to Pa. R.A.P. 2744(1), which permits this Court to impose an award of reasonable counsel fees against a party for pursuing a frivolous appeal. Claimant makes this request because he believes that the only issues raised by Employer attack the credibility determinations made by the WCJ. Although we conclude that a large part of Employer’s argument does dispute the WCJ’s credibility determinations, we believe that Employer also raised some arguments that impact Act 1 and the way this Court has most recently interpreted some of Act 1′s subsections. Moreover, because we recognize that Employer filed its brief prior to this Court’s decisions in Socha and Mozena, thus, preventing Employer from deriving guidance from these decisions, we refuse to grant Claimant’s request. For the reasons stated above, we affirm the Board’s order and deny Claimant’s request for counsel fees. Samuel L. Rodgers SAMUEL L. RODGERS, Senior Judge ORDER NOW, May 11, 1999 , the order of the Workers’ Compensation Appeal Board, at No. A97-3069, dated November 16, 1998, is affirmed. The request for attorney’s fees is denied. Samuel L. Rodgers SAMUEL L. RODGERS, Senior Judge :::FOOTNOTES::: FN1 Because Claimant’s claim for compensation involves less than fifty-two weeks of disability, he presented medical reports in lieu of medical testimony. See Section 422(d) of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. �835. FN2 Hypercholesterolemia is defined as “the presence of an abnormally large amount of cholesterol in the cells and plasma of the circulating blood.” Stedman’s Medical Dictionary 738 (25th ed. 1990). FN3 Presbycusis is defined as the “loss of ability to perceive or discriminate sounds as a part of the aging process�.” Stedman’s Medical Dictionary 1254 (25th ed. 1990). FN4 Hyperlipidemia relates to lipemia, which is defined as “[t]he presence of an abnormally large amount of lipids in the circulation blood.” Stedman’s Medical Dictionary 884 (25th ed. 1990). FN5 Our scope of review in a workers’ compensation appeal is limited to determining whether an error of law was committed, constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2Pa.C.S.’�704. Russell v. Workmen’s Compensation Appeal Board(Volkswagen of America),550A.2d1364(Pa.Cmwlth.1988). FN6 Section 306(c)(8)(x) of the Act states: (x) Whether the employee has been exposed to hazardous occupational noise or has long-term exposure to such noise shall be affirmative defenses to a claim for occupational hearing loss and not a part of the claimant’s burden of proof in a claim. FN7 Section 306(c)(8)(viii) of the Act states: (viii) Whenever an occupational hearing loss caused by long-term exposure to hazardous occupational noise is the basis for compensation or additional compensation, the claim shall be barred unless a petition is filed within three years after the date of last exposure to hazardous occupational noise in the employ of the employer against whom benefits are sought. FN8 A review of 29 C.F.R. 1910.95 reveals that the federal regulations provide a minimum level of noise that requires an employer to implement a hearing protection program, including monitoring, testing and preventative measures, etc. The regulations set out the procedures, listing how noise exposure is computed, how to estimate the adequacy of hearing protection, who may perform the audiogram testing, and how and how often an audiometric test should be administer, etc. FN9 Section 306(c)(8)(i) of the Act states: (8)(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. 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) of subsection (a) of this section. The term “impairment guides,” as used in the Act refers to the AMA Guidelines. Section 105.5 of the Act, 77 P.S. �25.5 FN10 We note that the WCJ in Finding of Fact No. 13c found Claimant had provided timely notice pursuant to Section 311 of the Act. This section requires notice to be given within 120 days of the injury or the claim will be barred. Courts have interpreted this section to mean that claims must be filed within the 120-day period following the point in time where the claimant knew or should have know of his hearing loss. NGK Metals Corp. v. Workmen’s Compensation Appeal Board (Bailey), 698 A.2d 1365 (Pa. Cmwlth. 1997). Employer does not take issue with the WCJ’s finding; rather Employer contends that the WCJ did not address its argument with regard to the statute of limitations set out in Act 1. 77 P.S. �513(8)(viii).
GENERAL ELECTRIC COMPANY and ELECTRIC INSURANCE COMPANY, Petitioners v. WORKERS’ COMPENSATION APPEAL BOARD (RIZZO), Respondent No. 3289 C.D. 1998 In The Commonwealth Court Of Pennsylvania Submitted: April 9, 1999 Filed: May 11, 1999 Before: Honorable Bernard L. McGinley, Judge, Honorable Jim Flaherty, Judge, Honorable Samuel L. Rodgers, Senior Judge
