The Commonwealth Court has handed down three new cases interpreting the 1995 amendments to the PA Workers’ Compensation Act (the Act) governing the compensability of hearing loss. These 1995 changes are commonly referred to as Act 1 of 1995. The new cases bring new clarity to certain aspects of the law.
In the first case, the court clarifies that while a claimant must have at least a 10% binaural loss before his hearing loss is compensable, the claimant need not necessarily be tested at this 10% (or greater) level on his last date of work. Instead, claimant may be tested at a later date (though within the statute of limitations) with an impairment rating of 10% or more and still be entitled to compensation for the hearing loss. See City of Philadelphia v WCAB (Seaman), _A.2d_ (Pa. Commw. No. 2564 C.D. 2009, filed November 5, 2010).
In the second case, the court clarified that when the claimant has a one-sided hearing loss caused by trauma, as opposed to long-term exposure to hazardous noise, the impairment rating is still to be derived from the AMA Guides based upon the overall binaural loss. Thus, even if claimant has a percentage of loss over 10% in the affected, traumatized ear, he may still not be able to establish a claim. See, Duncannon Borough & Authority v WCAB (Bruno), A.2d_( Pa. Commw., filed November 10, 2010).
In the third case, the court held that a Workers’ Compensation Judge can reject the expert opinion of an industrial hygienist that claimant did not experience exposure to hazardous levels of occupational noise in his work environment. The WCJ may do so, and instead credit claimant that he was exposed to hazardous noise. The court held, that it is not claimant’s burden to show initially, that he has been “exposed to hazardous occupational noise…” It is the employer’s task, as an affirmative defense, to show that the exposure was not hazardous or long term. See, Joy Mining Machinery Co. v. WCAB(Zerres) _A.2d__ (Pa. Commw. , filed November 19, 2010).