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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

FLAGG BRASS,

: : : v. : No. 2421 C.D. 1999 : SUBMITTED: December 31, 1999 : WORKERS' COMPENSATION : APPEAL BOARD (KATARZYNSKI), : Respondent : Petitioner BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE SAMUEL L. RODGERS, Senior Judge OPINION BY SENIOR JUDGE RODGERS

FILED: October 19, 2000

Flagg Brass (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed as amended the decision of the workers' compensation judge (WCJ) granting Joseph Kararzynski's (Claimant) claim petition requesting benefits for a binaural hearing loss suffered as a result of long-term exposure to hazardous occupation noise. Reconsideration of our prior decision in this matter was granted on July 19, 2000, and we now vacate the Board's order granting Claimant benefits and remand the matter for additional findings and conclusions as dictated by the following. Claimant worked for Employer as a sheet metal mechanic from November 1960 until he retired on June 20, 1988. On February 1, 1995, Claimant filed a claim petition, alleging that he suffered an occupational hearing loss

resulting from his exposure to noise at work. Employer filed an untimely answer, denying the allegations, and the matter was assigned to a WCJ. Claimant testified about his work history, his military history and described the types of noise to which he was exposed. Claimant also testified that his hearing gradually deteriorated during the time he worked for Employer, but has remained the same since his retirement in 1988. He acknowledged that Employer began testing the hearing of employees about four or five years prior to his retirement, but that test results were not explained to him. Claimant submitted a report authored by Matthew J. Nagorsky, M.D., who examined Claimant on March 24, 1998. The doctor opined that Claimant had sustained a 17.8 percent permanent binaural hearing impairment due to exposure to noise trauma while working for Employer. In response, Employer submitted a report from Arnold K. Brenman, M.D., who examined Claimant on February 25, 1998. Dr. Brenman opined that Claimant's binaural hearing impairment measured 18.8 percent and could be attributed to either Claimant's occupation noise exposure or presbycusis.1 Dr.

Brenman further opined that using statistical measurements that estimate the portion of hearing loss attributed to aging provides a 7.5 percent impairment of Claimant's hearing loss at the time of retirement ten years earlier. 2 The WCJ credited both Claimant's testimony and the opinions stated by Dr. Nagorsky in his report and rejected Dr. Brenman's opinions, determining
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). The WCJ's Finding of Fact No. 1 contains a typographical error indicating a retirement date for Claimant on June 20, 1998, rather than June 20, 1988, ten years earlier.
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that Claimant had proven that he sustained a 17.8 percent compensable hearing loss caused by exposure to noise at work. The WCJ concluded that Employer had received timely notice of Claimant's injury through the filing of the claim petition. The WCJ also determined that Claimant was "unaware of the nature and extent of his work-related hearing loss until he filed a claim petition on or about January 30, 1995." (WCJ's decision, Finding of Fact No. 14, p. 5). The WCJ also indicated that Act 1 of 1995 (Act 1), Act of February 23, 1995, P.L. 1, the hearing loss amendments to the Workers' Compensation Act (Act), 3 did not apply to the present case because Claimant's claim petition was filed prior to its enactment. Based on the non-applicability of Act 1, the WCJ

determined that Claimant's claim petition was timely filed. In other words, the WCJ concluded that the statute of limitations section of Act 1,4 which requires the filing of a claim petition within three years of the date of last exposure to hazardous occupational noise was inapplicable. The WCJ also concluded that Employer had not filed a timely answer to Claimant's petition and that Claimant was entitled to 46.28 weeks of benefits at a rate to be determined by the parties

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Act of June 2, 1915, P.L. 736, as amended, 77 P.S.

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