Supreme Court Hears Arguments on Hearing Loss Benefits

In USX Corp., the employer is arguing that it should not be responsible for the portion of the hearing loss due to presbycusis, or hearing loss caused by the aging process.



The claimant in USX was 61 years old.



Act 1 does not mention presbycusis or any other specific non-occupational cause of hearing loss. It just says that an employer is liable only for the hearing loss it causes and that an employer is not liable for hearing impairment arising from non-occupational causes.



The workers’ compensation judge declined to consider the defense witness’ testimony that a portion of the claimant’s hearing loss was due to the aging process rather than occupational noise, on the basis of his belief that the Workers’ Compensation Act prevented him from considering that testimony.



The Commonwealth Court affirmed the WCJ’s decision.



Marie Jurbala Shiring, attorney for USX, told the justices the court effectively wrote presbycusis out of the statute as a non-occupational cause of hearing loss.



Presbycusis is among the most pervasive non-occupational causes of hearing loss, the lawyer claimed. In fact, many other states have an automatic deduction in benefits to account for age-related hearing loss.



But what about the 10 percent threshold required for hearing loss benefits in Pennsylvania? Justice Sandra Schultz Newman asked. “Why shouldn’t we read [that] minimum threshold to mean the legislature took into account the aging process?”



Because the 10 percent is not applied discriminatorily on the basis of age, Shiring said. It’s applied to young people as well as octogenarians.



Newman seemed to echo the Commonwealth Court’s concern that a claimant would be left unpaid for some work-related hearing loss.



“How are they going to determine what part of the hearing loss is due to trauma and what part is due to presbycusis?” the justice asked.



The medical tests used by experts are very advanced, Shiring said. They can distinguish between hearing loss that has taken place over a period of time and that which is caused by trauma, and they can determine at what point in time hearing loss took place.



“Are they going to call in every family member to do a history of hearing loss in the claimant’s family?” Newman asked.



The expert will ask the claimant for his or her family history regarding hearing loss, Shiring said.

Successor Employer

In LTV Steel, a claimant sought benefits for hearing loss from LTV Steel after LTV Steel acquired the claimant’s former employer. The employer claims on appeal it should not have to pay benefits for the hearing loss suffered while this claimant worked for the predecessor employer.



Under the amendments, an employer is no longer liable for hearing loss caused by his or her prior employment, attorney Michael Cohen of Pietragallo Bosick & Gordon argued.



“Excuse me, counselor,” Justice Russel M. Nigro interjected. “When you buy a company, don’t you buy the assets and the liabilities, don’t you take the assets as they are?”



Yes, you do, Cohen said. “But if the language of the act differs from the general law, the act supersedes the general law.”



“So the new corporation wants to accept the experience of these employees … but you don’t have to accept the downside, the hearing loss?” Nigro asked.



“If they already had [filed] claims, we would accept them,” Cohen answered.

Response