Wednesday, July 16, 2003

Pre-OSHA Regulations Audiogram That Does Not Comply Is Invalid

In Wheeling-Pittsburgh Steel Corp. v. WCAB (Sesco) the Employer explored several arguments regarding a hearing loss claim. The claim was awarded for the Claimant's whole 35.6% binaural hearing loss. The Employer argued the loss was diminished by I) the pre-employment audiogram in 1971; II) the hearing loss accumulated by the Claimant when he was working in Ohio and not subject to extraterritorial jurisdiction; III) the audiogram administered when the Claimant was transferred to a new facility in 1998; and IV) the Employer advanced a statute of limitations argument because the Claimant presently works half the time in the office and half the time in the plant.

With regard to the 1971 audiogram (which showed a 17.8% loss), the Commonwealth Court recognized OSHA regulations that the audiogram had to meet had not yet been published. The audiogram did not comply with later regulations because the Claimant testified he was exposed to occupational noise the day the test was administered. The Court held Section 306(c)(8)(iv) requires audiometric testing to conform to OSHA standards. In a footnote the Court mentioned the Employer's expert did not testify that the testing met OSHA standards at the time.

The Court dismissed the argument about the Ohio employment by noting the Claimant was employed in Pennsylvania on the date of injury as defined in Section 306(c)(8)(ix).

When the Claimant was transferred back from Ohio, he had a 1998 pre-employment audiogram. However, the Claimant testified he retained his seniority with the employer, therefore he was not a new employee and Section 306(c)(8)(vi) does not apply.

The Employer's statute of limitation defense failed because of the inclusion of the Ohio employment.

In a fifth section (designated IV by the Court) the Court found a reasonable contest on the 1971 audiogram issue and declined to award counsel fees.

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