S. Paolucci v. WCAB (Exelon Generation Company, LLC)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Steven Paolucci, :
Petitioner :
:
v. : No. 2075 C.D. 2015
: Submitted: March 11, 2016
Workers' Compensation Appeal :
Board (Exelon Generation :
Company, LLC), :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON1 FILED: September 16, 2016
Steven Paolucci (Claimant) petitions for review of an order of the
Workers' Compensation Appeal Board (Board) that modified a Workers'
Compensation Judge’s (WCJ) order granting his claim petition for work-related
binaural hearing loss under Section 306(c)(8) of the Workers’ Compensation Act
(Act).2 Claimant contends the Board erred in modifying the WCJ’s order awarding
him benefits based on a 20.9% binaural hearing loss to an award based on an
11.3% binaural hearing loss. For the reasons that follow, we vacate the Board’s
order and remand for further proceedings.
1
This case was reassigned to the author on July 11, 2016.
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §513(8).
Claimant began working for PECO, which is now a subsidiary of
Exelon Generation Company, LLC. (Employer), in October 1971. Claimant
retired in January 2012. In July 2011, Claimant filed a claim petition alleging he
sustained a work-related hearing loss in both ears as a result of exposure to loud
noise while in the course of his employment.
Before the WCJ, Claimant testified that between 1971 and 1991, he
worked for Employer in power plants as a mechanics’ helper and mechanic before
working as a rigger for the pipe fitters and welders. He stated that in 1991, he
began repairing turbines at different plants, working up to 10 to 12 hours per day.
He worked as a part planner and worker from 2002 to 2008, and he retired in
January 2012. Thereafter, he returned to work as a sub-contractor where he is not
exposed to noise.
Claimant explained that the plants were usually running while he was
working and it was very loud in the areas he worked. He testified the loudest
noises emanated from the water feed pumps for the turbines. It was so loud that
the workers shouted to communicate and he sometimes felt numb. Claimant
experienced ringing in his ears at the end of the day, which subsided when he went
home. However, it lasted longer and longer as he aged. The noise in the
workplace was so loud Claimant told his bosses the noise “is killing us.” WCJ
Op., 1/29/14, Finding of Fact (F.F.) No. 2c.
Claimant explained that he began to use rubber and foam earplugs in
the mid-1980s and that they were fairly accessible by the 1990s. He testified the
2
workers could still hear each other with earplugs in place when they talked loudly
or screamed. He stated he had ringing in his ears by the time Employer made
earplugs available.
Claimant testified he first began to notice hearing difficulties in the
late 1980s and that he could not hear his co-workers. He began lip reading at
work. He still has trouble hearing family members and he sets the volume on the
television too high for the other people at his house. He has not seen any doctors
for his hearing problems other than Dr. Steven Ladenheim (Claimant’s Expert) and
Dr. Lee Rowe (Employer’s Expert) as part of these proceedings. Claimant mows
his lawn occasionally. He listened to rock and roll music when he was younger,
and his hearing loss did not worsen since his retirement.
Claimant presented the deposition testimony of his Expert, a board
certified otolaryngologist. Claimant’s Expert testified Claimant’s ears, nose and
throat were normal upon examination. He performed an audiogram that showed
Claimant had bilateral mild to severe sensorineural hearing loss. He reviewed a
1977 baseline audiogram, which did not reveal a significant hearing loss, and an
audiometric record.
Claimant’s Expert explained that normal hearing is within 0 to 20
decibels and that Claimant’s hearing is well below those boundaries. He testified
that both bone and air conduction studies must be reviewed to determine whether
noise exposure is the cause of a hearing loss. Claimant’s Expert’s audiometric
testing was consistent with Claimant’s record over the years and showed an 11.3%
3
loss. Claimant’s Expert opined Claimant has permanent and irreversible
sensorineural hearing loss based on his review of Claimant’s history, his physical
examination and his many years of treating patients with diseases of the ear. He
believed Claimant’s total and cumulative noise exposure at work contributed to
and caused his bilateral sensorineural hearing loss.
Claimant’s Expert reviewed Employer’s Expert’s report and stated he
does not disagree with Employer’s Expert’s finding that Claimant suffers from a
20.9% hearing loss. He explained the difference in decibels between the 3
audiograms can be attributed to test-to-test variability, and that the 9% differential
between his audiogram and Employer’s Expert’s is 6 decibels in each of the
pertinent frequencies.3
3
Claimant’s Expert testified, in relevant part:
Q. I’d like you to comment on [Employer’s Expert’s] findings
and opinions and explain to the [WCJ] what you agree with or
disagree with.
A. Well, the first thing I agree with is he did a history,
physical examination, and audiogram involving [Claimant]. His
audiogram has different findings than mine in terms of the
percentage of loss. However, again, the shape and configuration of
the audiograms are consistent and the difference in loss can be
attributed to test-to-test variability. That is not uncommon.
Some of the things I disagree about –
Q. Before we get there, he had a finding of 20.9 percent; is
that correct?
A. Yes.
Q. And do you disagree with that conclusion?
A. No, I do not disagree with the conclusion. As I mentioned,
his audiogram is of the same configuration as the audiogram that
was done in my office, and the difference in percent of hearing loss
(Footnote continued on next page…)
4
However, Claimant’s Expert testified he disagreed with Employer’s
Expert’s conclusion that Claimant’s hearing loss is age-related and that noise
exposure was a minimally contributing factor to the hearing loss. He opined there
is no way to distinguish the percentage of hearing loss attributable to age,
(continued…)
from all three audiograms may be attributed to what we refer to as
test-to-test variability.
Q. How much variability do you need in order to get that
difference of a percentage?
A. The difference in percentage is 9 percent. So you would
need a difference of 6 decibels in each of the four pertinent
frequencies. 6 decibels is an extremely small level of sound.
***
Q. You testified on direct that he had – when he had I guess
his exit audiogram at the time he retired in 2011, they showed a
hearing loss of about 13.1 percent?
A. Yes.
Q. By the time of your audiogram [in] 2012, you found a
hearing loss of 11.3 percent?
A. That’s correct.
Q. And that, I guess, is within the statistical differentiation of
these exams?
A. That’s correct, yes.
Q. You would agree with me that any hearing loss after he left
[Employer] couldn’t be related to noise exposure, correct?
A. I would agree with that, yes.
Q. And the only number that you can conclusively testify to
with a reasonable degree of medical certainty is your own
audiogram of 11.3 percent, correct?
A. I can certainly attest to my audiogram within a reasonable
degree of medical certainty. In reading [Employer’s Expert’s]
report, he states that this was done by a certified audiologist, it was
done within the boundaries of an approved booth, so I can certainly
say that his audiogram was accurate.
Reproduced Record (R.R.) at 5a-6a, 7a-8a.
5
hypertension and hyperlipidemia, and that smoking did not significantly contribute
to Claimant’s hearing loss. Claimant’s Expert further opined there is no evidence
that childhood disease played any part in the hearing loss.
Claimant’s Expert also disagreed with Employer’s Expert’s
suggestion that Claimant’s audiograms do not show a notch at 3,000, 4,000, or
6,000 decibels, meaning that the hearing is worse at those frequencies, and that
notching disappears over time as hearing loss progresses in other frequencies.
Claimant’s Expert examined a 1986 audiogram showing a possible notch at 6,000
decibels in both ears, but 1987, 1988 and 1989 tests did not show notching. He
agreed that Claimant’s 2007 audiogram showed only a 2.5% hearing loss, and that
a 2012 audiogram showed an 11.3% hearing loss. He also agreed that any hearing
loss after Claimant left his employment would not be related to work noise
exposure. Nevertheless, Claimant’s Expert opined within a reasonable degree of
medical certainty that Claimant’s noise exposure while working for Employer was
either a total cause of Claimant’s hearing loss or a substantial contributing factor to
the hearing loss.
Employer presented the deposition testimony of its Expert, a diplomat
of the American Board of Otolaryngology. Employer’s Expert testified that in
conjunction with his physical examination of Claimant, he reviewed Claimant’s
medical records and audiometric testing. Employer’s Expert stated a 1977 baseline
audiogram showed evidence of mild high frequency sensorineural hearing loss in
the left ear at 6,000 cycles per second, and that all other frequencies were normal
in both ears. A 1987 audiogram showed mild high frequency hearing loss at 6,000
6
and 8,000 cycles per second in the right ear and moderate loss in the left ear at the
same levels, and there was no evidence of a characteristic occupationally-induced
hearing loss notch. Employer’s Expert testified that a 1997 audiometric test
showed further progression of hearing loss in the 6,000 and 8,000 frequencies with
no evidence of notching, and Claimant’s binaural hearing handicap remained at
0%. He stated that a 2007 audiometric test showed hearing loss in both ears in all
frequencies except at 6,000 cycles per second in the left ear and 4,000 and 6,000
cycles per second in the right ear, and that Claimant’s binaural hearing handicap
was now 2.5%. Employer’s Expert also stated that additional audiometric testing
between 2007 and 2011 showed further progression of hearing loss in both ears at
6,000, which is consistent with age-related hearing loss or presbycusis.
Employer’s Expert examined Claimant after his retirement in 2012
and had audiometric testing performed, which showed bilateral moderate low
frequency sensory hearing loss that dropped to severe high frequency hearing loss.
He stated that Claimant’s binaural hearing handicap was 20.9% under the
American Medical Association (AMA) Guidelines which represented a significant
increase from prior testing at 13.1%.4 He explained that this was significant
4
Specifically, Employer’s Expert testified in relevant part:
I performed a physical examination which included his
ears, and this was entirely within normal limits. There was no
evidence of any scar tissue, wax obstruction.
I then had audiometric testing performed by a board
certified audiologist under my direction which was in a sound
dampened and calibrated booth pursuant to OSHA and ANSI
specifications.
Q. What did you find as a result of that audiometric testing?
(Footnote continued on next page…)
7
because hearing loss does not continue to worsen after removal from the noise
environment. Employer’s Expert opined it was highly unlikely that any of the
20.9% hearing loss is related to occupational noise.
The WCJ made the following relevant findings regarding the medical
testimony:
7. I have carefully reviewed the medical evidence
presented in this matter and find that the testimony of
[Claimant’s Expert] is more credible than the testimony
of [Employer’s Expert]. [Claimant’s Expert’s] testimony
is supported by Claimant’s audiometric test results and is
consistent with Claimant’s credible testimony regarding
the progression of his hearing loss. [Claimant’s Expert]
credibly testified that Claimant did not have hearing loss
(continued…)
A. What I found was that he had a bilateral moderate low
frequency sensory hearing loss that dropped to severe high
frequency loss. His discrimination was 100 percent in both ears at
loud conversation level.
What that means is that the audiologist will give him a
word and he has to repeat it and he was able to repeat 100 percent
of those words. This was delivered at a loud conversation level,
not a shouting level but a loud level and this is in a soundproof
booth.
I was able to calculate his binaural hearing handicap
pursuant to the AMA Guidelines, and that was 20.9 percent.
Q. And Doctor, how did that compare to his handicap at the
time he retired in October of 2011?
A. It was up significantly. His handicap in 2011 was 13.1
percent and this represents almost 100 percent increase. And this
is attributable to the fact that he had an increase in those
frequencies[,] in the low frequencies[,] that are used to compute
the AMA Guideline formula.
R.R. at 9a-10a.
8
upon beginning work with [Employer] in 1977, that
Claimant’s tests did show a work-related notch in 1986,
and that such notching disappears over time as hearing
loss progresses at other frequencies. [Claimant’s Expert]
also credibly explained that hearing loss continues after
the first 10 to 15 years of exposure, although at a lower
rate of progression. [Employer’s Expert’s] testimony is
less credible, given that he agreed that Claimant was
working in an environment with hazardous noise as
defined by OSHA,[5] and that he could not demonstrate
any hearing impairment at or prior to the time of
Claimant’s employment [with Employer].
8. On the basis of the evidence accepted above, I find
that as of January 17, 2012, Claimant has sustained a
permanent hearing loss caused by long term exposure to
hazardous occupational noise while working for
Employer. I find that Claimant had no hearing
impairment from non-occupational causes established at
or prior to the time of employment with Employer. I find
that Claimant[] has sustained a 20.9 percent binaural
hearing loss as determined by audiogram testing which
conformed to OSHA standards.
F.F. Nos. 7-8. Based on these findings, the WCJ concluded Claimant met his
burden of establishing a permanent occupational hearing loss under Section
306(8)(c) of the Act and awarded specific loss benefits of $888.00 per week for
54.34 weeks (20.9% x 260 weeks). Id. at 9, 10.
On appeal to the Board, Employer did not contest the WCJ’s grant of
Claimant’s claim petition. Rather, Employer argued the WCJ’s determination that
Claimant suffered a 20.9% binaural hearing loss was not supported by substantial
evidence because the WCJ found Claimant’s Expert’s testimony credible and
5
The Occupational Health and Safety Administration is an agency of the U.S.
Department of Labor.
9
rejected Employer’s Expert’s testimony as not credible, and Claimant’s Expert
testified Claimant only suffered an 11.3% work-related hearing loss.
Ultimately, the Board modified the calculation of Claimant’s specific
loss benefits from those for a 20.9% binaural hearing loss to those for an 11.3%
binaural hearing loss. In so doing, the Board explained (with emphasis added):
[T]he WCJ accepted the opinion of [Claimant’s Expert]
in its entirety and he opined that Claimant sustained a
work-related hearing loss and he could attest to his
audiogram testing result, resulting in an 11.3%
impairment, to a reasonable degree of medical certainty.
While he indicated that [Employer’s Expert’s] audiogram
was appropriately performed and he did not disagree with
it, he did not adopt the opinion as his own. The WCJ
rejected [Employer’s Expert’s] testimony in its entirety
and did not parse out an exception for [Employer’s
Expert’s] test results. In short, there is no credible
medical opinion establishing that Claimant sustained a
20.9% work-related hearing impairment. As such, we
will modify the Decision and Order to reflect that,
consistent with the credible testimony of [Claimant’s
Expert], Claimant sustained an 11.3% work-related
hearing loss. Benefits are to be calculated consistent
with that determination.
Bd. Op., 10/7/15, at 8-9.
On appeal here, Claimant contends the Board erred in modifying the
WCJ’s calculation of his specific loss benefits because the WCJ accepted as
credible Claimant’s Expert’s testimony regarding the work-relatedness of
Claimant’s hearing loss, but accepted as credible Employer’s Expert’s testimony
regarding the percentage of hearing loss based on an audiogram that conformed to
10
OSHA standards.6 Therefore, Claimant argues, there is substantial competent
medical evidence supporting the WCJ’s determination that Claimant suffered a
work-related 20.9% binaural hearing loss.
Further, Claimant asserts two separate facts exist. First, the WCJ
found, based on Claimant’s Expert’s testimony, that Claimant’s exposure to
occupational noise caused his hearing loss. F.F Nos. 7, 8. Second, with respect to
the extent of Claimant’s hearing loss, Claimant stressed that neither expert’s
audiogram addressed the work-relatedness of the loss. Rather, the expert’s
separate opinions establish the work-relatedness of the hearing loss.
Claimant also asserts the Board erred in determining the WCJ
accepted Claimant’s Expert’s testimony in its entirety and rejected Employer’s
Expert’s testimony in its entirety. Rather, Claimant argues, the WCJ found
Employer’s Expert less credible as to causation.
To begin our analysis, we recognize that in a workers’ compensation
proceeding, the WCJ is the ultimate finder of fact. Hayden v. Workmen’s Comp.
Appeal Bd. (Wheeling Pittsburgh Steel Corp.), 479 A.2d 631 (Pa. Cmwlth. 1984).
As the ultimate fact-finder, the WCJ is entitled to accept or reject the testimony of
any witness, including a medical witness, in whole or in part. Wheeling–
Pittsburgh Steel Corp. v. Workers' Comp. Appeal Bd. (Sesco), 828 A.2d 1189,
6
This Court’s review is limited to determining whether there was a violation of
constitutional rights, errors of law committed, or a violation of appeal board procedures, and
whether necessary findings of fact were supported by substantial evidence. Lehigh County Vo-
Tech School v. Workmen’s Comp. Appeal Bd. (Wolfe), 652 A.2d 797 (Pa. 1995).
11
1193 (Pa. Cmwlth. 2003). In a case involving a claim for specific loss benefits
based on work-related binaural hearing loss, it is within the WCJ’s prerogative to
accept the opinion of one physician as to the causal relationship between a
claimant’s hearing loss and his occupational noise exposure and to accept the
opinion of another physician as to the percentage of hearing impairment. Helvetia
Coal Co. v. Workers’ Comp. Appeal Bd. (Learn), 913 A.2d 326 (Pa. Cmwlth.
2006).
Section 308(c)(8)(iv) of the Act states that “[t]he percentage of
hearing impairment for which compensation may be payable shall be established
solely by audiogram,” and “[t]he audiometric testing must conform to OSHA
Occupational Standards . . . .” 77 P.S. §513(c)(8)(iv). In Sesco, we determined the
WCJ did not err in rejecting an employer’s pre-employment audiogram that did not
meet OSHA standards “[b]ecause the Act requires that the WCJ consider only
those audiograms that meet OSHA standards when determining whether [a
c]laimant sustained a hearing loss due to exposure to hazardous occupational noise
. . . .” Sesco, 828 A.2d at 1194.
With respect to Finding of Fact No. 7, we agree with Claimant that the
Board erred in determining the WCJ rejected Employer’s Expert’s testimony in its
entirety. Rather, the WCJ found Employer’s Expert’s testimony less credible as to
causation. In particular, the WCJ found: “[Employer’s Expert’s] testimony is less
credible, given that he agreed that Claimant was working in an environment with
hazardous noise as defined by OSHA, and that he could not demonstrate any
hearing impairment at or prior to the time of Claimant’s employment [with
12
Employer].” F.F. No. 7 (emphasis added). As we recognized in Helvetia Coal
Co., it is within the WCJ’s prerogative in a hearing loss case to accept the
claimant’s medical expert’s opinion as to causation and to accept the result of the
audiogram conducted by the employer’s medical expert.
In Finding of Fact No. 8, the WCJ found Claimant “sustained a 20.9%
binaural hearing loss as determined by audiogram testing which conformed to
OSHA standards.” WCJ Op., F.F. No. 8. As noted above, Claimant’s Expert
testified he did not disagree with Employer’s Expert’s finding of a 20% binaural
hearing loss. R.R. at 5a-6a. Nevertheless, Claimant’s Expert could not testify
from personal knowledge about another expert’s testing procedures, and he could
not supply the foundation testimony that the Employer’s Expert’s test was OSHA-
compliant. Instead, Claimant’s Expert merely repeated statements made by
Employer’s Expert regarding how the test was conducted. See R.R. at 8a.
Pursuant to Section 306(8)(i) of the Act, compensation for permanent
binaural hearing loss caused by long-term exposure to hazardous occupational
noise is determined by multiplying the percentage of hearing loss as calculated
under the AMA’s Impairment Guides by 260 weeks. 77 P.S. §513(8)(i).
Compensation is payable at 66 2/3% of wages during this number of weeks. Id.
Although the WCJ explained here that he found Claimant’s Expert more credible
as to causation, he did not distinctly explain why he found Claimant’s Expert less
credible as to the percentage of Claimant’s hearing loss.
13
Consequently, we conclude we must remand this case in order for the
WCJ to render more detailed findings, based on the existing record, as to whether
he accepted Employer’s Expert’s testimony (that Claimant suffered a 20.9%
hearing loss) as more credible than Claimant’s Expert’s testimony (that Claimant
suffered an 11.3% hearing loss). In so doing, we ask the WCJ to clearly identify
his reasons for reaching his determinations as the actual percentage of Claimant’s
hearing loss. A remand to the WCJ is appropriate where a factual issue needs to be
resolved and can be easily rectified by making additional findings. Trudnak v.
Workmen's Comp Appeal Board (Lucky Strike Coal Co.), 629 A.2d 254 (Pa.
Cmwlth. 1993).
For these reasons, we vacate the order of the Board and remand with
instructions for a further remand to the WCJ for further proceedings consistent
with this opinion.
ROBERT SIMPSON, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Steven Paolucci, :
Petitioner :
:
v. : No. 2075 C.D. 2015
:
Workers' Compensation Appeal :
Board (Exelon Generation :
Company, LLC), :
Respondent :
ORDER
AND NOW, this 16th day of September, 2016, the order of the
Workers' Compensation Appeal Board is VACATED and this case is
REMANDED with instructions for a further remand to the Workers’
Compensation Judge for further proceedings consistent with the foregoing opinion.
Jurisdiction is relinquished.
ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Steven Paolucci, :
: No. 2075 C.D. 2015
Petitioner : Submitted: March 11, 2016
:
v. :
:
Workers' Compensation Appeal :
Board (Exelon Generation :
Company, LLC), :
:
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
CONCURRING AND DISSENTING OPINION
BY JUDGE WOJCIK FILED: September 16, 2016
Although I agree with the majority’s determination that the Workers’
Compensation Appeal Board’s (Board) order should be reversed, I do not agree
that the matter should be remanded to the Workers’ Compensation Judge (WCJ) to
make additional findings of fact. Rather, I believe that the WCJ has already made
sufficient findings to support the award of benefits and for this Court to conduct
effective appellate review in this case.1
1
Section 422(a) of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736,
as amended, 77 P.S. §834, states, in relevant part, that “[a]ll parties to an adjudicatory
proceeding are entitled to a reasoned decision containing findings of fact and conclusions of law
based upon the evidence as a whole which clearly and concisely explains the rationale for the
decisions . . . .”
As the majority acknowledges, in a case involving a claim for specific
loss benefits due to work-related binaural hearing loss, the WCJ has the
prerogative to accept the opinion of one physician as to the causal relationship
between a claimant’s hearing loss and his occupational noise exposure and to
accept the opinion of another physician as to the percentage of hearing impairment.
Helvetia Coal Company v. Workers’ Compensation Appeal Board (Learn), 913
A.2d 326, 330 (Pa. Cmwlth. 2006). Additionally, the majority correctly notes that
in Wheeling–Pittsburgh Steel Corporation v. Workers’ Compensation Appeal
Board (Sesco), 828 A.2d 1189, 1192 n.3 (Pa. Cmwlth. 2003), appeal denied, 864
A.2d 531 (Pa. 2004), this Court explained that a WCJ did not err in rejecting an
employer’s pre-employment audiogram which did not meet OSHA standards
“[b]ecause the Act[2] requires that the WCJ consider only those audiograms that
meet OSHA standards when determining whether Claimant sustained a hearing
loss due to exposure to hazardous occupational noise . . . .”
In this case, the only audiogram that the WCJ found conforms to
OSHA standards as required by Section 308(c)(8)(iv) of the Act is that conducted
by Employer’s expert, Dr. Rowe, and it shows that Claimant suffers from a 20.9%
hearing loss. WCJ 1/29/14 Decision at 9. There is no finding that the audiogram
conducted by Claimant’s expert, Dr. Ladenheim, indicating that Claimant suffers
from an 11.3% hearing loss, conforms to those standards. As a result, the WCJ
was not required to consider the results of Dr. Ladenheim’s audiogram because it
is not competent evidence in determining whether Claimant sustained a
2
Section 308(c)(8)(iv) of the Act, 77 P.S. §513(c)(8)(iv), states that “[t]he percentage of
hearing impairment for which compensation may be payable shall be established solely by
audiogram,” and “[t]he audiometric testing must conform to OSHA Occupational Standards
. . . .”
MHW - 2
compensable hearing loss under Section 308(c)(8)(iv). Sesco. The WCJ properly
accepted as credible the results of Dr. Rowe’s audiogram which meets OSHA
standards and shows that Claimant has a 20.9% binaural hearing impairment.
Helvetia Coal Company.
Moreover, there is substantial record evidence supporting the WCJ’s
findings. Dr. Ladenheim explained that “[i]n reading Dr. Rowe’s report, he states
that this was done by a certified audiologist, it was done within the boundaries of
an approved booth, so I can certainly say that his audiogram was accurate;” Dr.
Ladenheim did “not disagree with [Dr. Rowe’s] conclusion” that Claimant had a
20.9% hearing loss; and Dr. Rowe’s audiogram “is of the same configuration that
was done in my office, and the difference in percent of hearing loss from all three
audiograms may be attributed to what we refer to as test-to-test variability.”
Reproduced Record at 6a, 8a. Likewise, Dr. Rowe explained that he “had
audiometric testing performed by a board certified audiologist under [his] direction
which was in a sound dampened and calibrated booth pursuant to OSHA and ANSI
specifications,” and that he calculated Claimant’s “binaural hearing handicap
pursuant to the AMA Guidelines, and that was 20.9 percent.” Id. at 9a, 10a.
Consequently, the WCJ acted within his authority when he found that
Claimant suffered a hearing loss of 20.9%, and the Board clearly erred in
modifying the WCJ’s decision and directing the calculation of Claimant’s benefits
based upon the results of an audiogram that is not competent under Section
308(c)(8)(iv). Furthermore, the WCJ was not required to explain why he did not
consider or accept as credible the incompetent results of Dr. Ladenheim’s
audiogram. Sesco; see also Acme Markets, Inc. v. Workers’ Compensation Appeal
Board (Brown), 890 A.2d 21, 26 (Pa. Cmwlth. 2006) (“A decision is ‘reasoned’ for
MHW - 3
purposes of Section 422 if it allows for adequate review by this Court under
applicable review standards . . . . A reasoned decision does not require the WCJ to
give a line-by-line analysis of each statement by each witness, explaining how a
particular statement affected the ultimate decision.”) (citation omitted).3
Accordingly, unlike the majority, I would reverse the Board’s order
and reinstate the WCJ’s decision.
MICHAEL H. WOJCIK, Judge
3
The majority’s reliance on Trudnak v. Workmen’s Compensation Appeal Board (Lucky
Strike Coal Co.), 629 A.2d 254, 255-56 (Pa. Cmwlth. 1993) to support remand is misplaced
because in that case:
[T]he first [WCJ]’s findings of fact were not specific enough to
meet the standards of appellate review. In fact, the referee did not
even summarize the evidence. He failed to discuss any of the
medical testimony and made no credibility determinations. Aside
from possible inferences from the result, the Board was unable to
determine what evidence the [WCJ] accepted and what evidence
he rejected in reaching the conclusion that Claimant was eligible
for benefits.
As outlined above, the WCJ’s findings of fact in this case are sufficiently specific to support the
award of benefits and to conduct appellate review. The WCJ properly accepted as credible Dr.
Ladenheim’s opinion that Claimant’s hearing impairment is work-related; properly rejected as
not credible Dr. Rowe’s contrary opinion regarding causation; and properly accepted as credible
the only competent results of an audiogram which shows that Claimant has a 20.9% binaural
hearing impairment. Helvetia Coal Company.
MHW - 4