# Petras v. Workmen's Compensation Appeal Board

> Commonwealth Court of Pennsylvania · September 24, 1993 · 158 Pa. Commw. 528

URL: https://www.frixlaw.com/law-library/cases/6374753

## Case

- **Full name:** William PETRAS v. WORKMEN'S COMPENSATION APPEAL BOARD (USX CORPORATION)
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** September 24, 1993
- **Citations:** 158 Pa. Commw. 528; 632 A.2d 592; 1993 Pa. Commw. LEXIS 604
- **Precedential status:** Published
- **Opinion:** Dissent by Friedman
- **Judges:** Doyle, Friedman, Only, Rodgers
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6374753

## Opinion text

FRIEDMAN, Judge,
dissenting
I believe that United States Steel Corp. v. Workmen’s Compensation Appeal Board, 62 Pa.Commonwealth Ct. 502, 437 A.2d 92 (1981) controls here. Moreover, I believe that under U.S. Steel, where, as here, a referee found that Claimant sustained a work-related hearing loss and granted Claimant’s petition seeking medical expenses in the form of payment for a hearing aid, that award is properly the basis for a suspension order even where Claimant was never paid compensation benefits. Thus, I respectfully dissent.
The majority, in concluding its opinion, states:
[TJhere was never a finding that Claimant ever suffered an injury under any section of the Act, that is, either under Section 301(c)(1) (ordinary injuries), Section 301(c)(2) (occupational diseases) or under Section 306(c) (specific loss injuries). Since he suffered no disability or injury, he cannot fall within the reinstatement language of Section 413 which conditions reinstatement of benefits on the recurrence of a disability. Additionally, U.S. Steel, a case which liberally construed Section 413(a) to include situations involving the ongoing payment for medical services where injuries are readily observable and immediate, is of no precedential value here.
(Majority opinion at 594.)
Initially, I must strenuously disagree with the majority when it states that Claimant suffered no work-related injury. By granting Claimant’s claim petition and awarding payment for a hearing aid, the referee and Board acknowledged that Claimant suffered from a work-related condition requiring *535 continuing medical care. Indeed, the referee specifically concluded that Claimant “met his burden of proof that he has suffered a sensory neural hearing loss as a result of his exposure to high noise levels during the course of his employment with the defendant” and so was entitled to receive benefits in accord with § 306(f) of the Act, in the form of the payment of a hearing aid. If, as the majority asserts, Claimant suffered no work-related “injury” under the Act, I would ask what it is that a person has suffered when working conditions have impaired his or her hearing to the extent that a hearing aid is required, but that person has not lost his hearing for all practical intents and purposes.
The majority cites Corden v. Workmen’s Compensation Appeal Board (Latrobe Steel Co.), 141 Pa.Commonwealth Ct. 207, 595 A.2d 674 (1991), in which the claimant, while not entitled to specific loss benefits, nevertheless suffered a moderate work-related hearing loss. The claimant in Corden , as here, relied on U.S. Steel to show his entitlement to a suspension of benefits for partial disability due to a work-related injury. We disagreed that U.S. Steel applied in Corden , however, reasoning that in U.S. Steel, the referee had made an award to the claimant, whereas in Corden , there was nothing in the referee’s decision that constituted an award. However, the missing element which prevented us from applying U.S. Steel in Corden is present here. In fact, even the majority, after noting the similarities between this case and Corden , notes the one distinction, stating, “Unlike Corden , however, we have in this case the entry of a previous award for medical supplies.” Corden may differ from this case in only one particular, but that is the one which matters; thus, U.S. Steel should apply here.
The majority attempts to distinguish U.S. Steel by asserting that its liberal construction of Section 413(a) is limited to situations where injury was immediate and readily observable and cites Montgomery v. Workmen’s Compensation Appeal Board, 42 Pa.Commonwealth Ct. 143, 400 A.2d 253 (1979), in *536 support of this conclusion. I disagree that Montgomery acts to limit U.S. Steel.
Montgomery is an occupational disease case which relied upon the insidious nature of such diseases for its rationale. In fact, in U.S. Steel, we distinguished Montgomery on precisely this basis and relied instead on the analysis provided in Hinkle v. H.J. Heinz Co., 462 Pa. 111 , 337 A.2d 907 (1975), a case in which the claimant suffered a partial hearing loss due to prolonged exposure to noise in his workplace. 1 Additionally, in Corden , which dealt with hearing loss, we declined to apply U.S. Steel based only the lack of a referee’s award and made no reference to the majority’s claimed qualification of the U.S. Steel holding. Nor should U.S. Steel be thus restricted. Claimant is no less afflicted by his work-related “injury” because it was acquired over the course of time; 2 thus, there is no reason that he should be compensated any differently or any less than a worker who was injured suddenly. Indeed, in Hinkle , our Supreme Court refused to make such a distinction, stating:
[I]f, as must be conceded, hearing loss precipitated by one particular outburst of noise would be compensable, we would frustrate the remedial purposes behind our workmen’s compensation legislation if we were to deny relief to one injured by a series of similar noises, all occurring in the *537 course of his employment, no one of which caused the injury.
Id. at 117 , 337 A.2d at 910 .
The majority also differentiates U.S. Steel by stating that in that case, although the claimant lost no time from work, he did receive ongoing medical treatment. The majority claims that Claimant here did not receive such treatment but instead obtained a medical device. I fail to see why the award of a hearing aid, which must be worn continually to compensate for Claimant’s work-related hearing loss, is not equivalent to Claimant receiving ongoing medical treatment. Admittedly, Claimant does not have to go to the doctor on a daily basis; instead, he inserts the device daily himself, receiving ongoing medical benefits from it upon each insertion.
Keeping in mind the remedial purpose of the Act, it makes no sense to deny benefits to an injured worker merely because his work-related “injury” does not fit comfortably into established categories. Here, what is evident beyond question is that because of exposure to noise at the work site, Claimant sustained a permanent partial hearing loss, requiring the use of a hearing aid. That we do not know how to label this work-related injury, makes Claimant no less entitled to payment for it. I would reverse.
. In U.S. Steel, we stated:
The Supreme Court, in Hinkle v. H.J. Heinz Co., 462 Pa. 111 , 337 A.2d 907 (1975), recognized that a situation similar to that present in this case might be the basis for a suspension order. In Hinkle , the claimant filed a petition with the Board, alleging that he suffered a partial loss of hearing as a result of protracted exposure to noise in the course of his employment. While conceding that he had lost no time from work, the claimant nevertheless contended that he had a right to a compensation award for a partial disability and requested that the award be suspended until such time as the disability were reflected in a future loss of earnings. The Supreme Court [ruled] that the claimant had a viable claim ...
Id. at 506, 437 A.2d at 94 . (Emphasis added.)
. As for the observability of the injury, this also is relevant only in the context of occupational disease; however, I would note that a hearing aid is often noticeable, as is a person's inability to hear when an aid is needed but not worn.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6374753. Public record. Not legal advice.