analogizing long-term exposure to noise as a series of incidents that ultimately lead to the injury, i.e., hearing loss
How later courts described this case
- analogizing long-term exposure to noise as a series of incidents that ultimately lead to the injury, i.e., hearing loss
- That which distinguishes an accident from other events is the element of being unforeseen, quoting Lacey v. Washburn & Williams Company, 309 Pa. 574, 578, 164 A. 724, 725 (1933)
- mechanic in can-making factory suffered “accident” by sustaining unexpected loss of hearing performing his normal job
- loss of hearing due to loud working place
Written by the judges who cited it.
The opinion
POMEROY, Justice
(dissenting).
The meaning of the deceptively simple word “accident” has been the subject of endless litigation in the workmen’s compensation field. Happily the end of this process is in sight in Pennsylvania for, as the opinion of the Court notes, ante at 910, n. 4, the 1972 amendments to the Workmen’s Compensation Act 1 replace the phrase “injury by an accident in the course of his employment” with the broader phrase “injury in the course of his employment”. 77 P.S. §§ 411, 431 (Supp.1974). In the *122 meantime, however, the courts must deal with the remnant of cases which antedate the 1972 amendments and in which the meaning of the term “accident” is still in issue. This is such a case.
The compensation referee, the Workmen’s Compensation Board, the Court of Common Pleas and the Commonwealth Court, without dissent, all have found that no “accident” within the meaning of the Workmen’s Compensation Act as it existed at the time of filing the instant claim was sustained by Darious Hinkle. In this conclusion they were undoubtedly correct under all the prior law in Pennsylvania. While admittedly the Workmen’s Compensation Act is to be construed liberally to give effect to its remedial purposes, this does not justify the kind of judicial legislation which the Court’s opinion constitutes.
As the Court acknowledges, “accident” has traditionally been thought to connote some unexpected and identifiable event either in terms of the occurrence in which an employee is involved or the physical result thereof on the employee. The Court today holds, however, that the usual, expectable and to a large degree unavoidable noise factor incident to employment in a can factory subjects the employee to an infinitude of “miniature accidents” comprised of “each outburst of noise” which has been emitted in the factory during the claimant’s twenty years of employment there. This is nothing more or less than a holding that any work-related physical disability of gradual, imperceptible development over the years is compensable. The result is no doubt socially desirable, but it is not what the legislature intended, at least before 1972. 2
*123 The physical disability that now regrettably afflicts appellant — an involvement of “the bone structure and nerve endings in Hinkle’s aural cavity”, as the Court’s opinion describes it — is much more akin to an occupational disease than it is to an accident, 3 yet the legislature in the Pennsylvania Occupational Disease Act has expressly provided that “partial loss of hearing due to noise shall not be considered an occupational disease.” 4 Lack of coverage under that Act, however, does not qualify such a loss as compensable under the Workmen’s Compensation Act.
For the reasons indicated, I would affirm on the basis of the opinion of Judge KRAMER, speaking for a unanimous Commonwealth Court. 7 Pa.Cmwlth. 216 , 298 A.2d 632 (1972).
. Act of March 29, 1972, P.L. 105, No. 61, § 1 et seq., as amended.
. The schedule of compensation for certain specified permanent injuries, contained in Section 306(c) of the Act, as amended in 1972, 77 P.S. § 513(8) (Supp.1974), provides only for the complete loss of hearing in one or both ears. (Loss of hearing in one ear only was not compensable under the Act as it stood before the 1972 amendments). Thus, compensation for partial losses of *123 hearing, if such disabilities are compensable at all, must be made not under Section 306(c) but under Section 306(b) of the Act, as amended in 1972, 77 P.S. (Supp.1974). The latter section provides for compensation, based on loss of earning power, for disabilities partial in character, but excludes “the particular cases mentioned in clause (c)” of Section 306, 77 P.S. § 513, supra. See 1 A. Barbieri, Pennsylvania Workmen’s Compensation and Occupational Disease § 5.21(2) at 52, 53 (1975).
. See Parks v. Miller Printing Machine Co., 336 Pa. 455, 461-462 , 9 A.2d 742 (1939). For a discussion of the relationship between the concept of accident and that of an occupational disease, see 1A Larson, The Law of Workmen’s Compensation (1973), § 39.60 and § 41.00 et seq., esp. § 41.50.
. Act of June 21, 1939, P.L. 566, § 108, as amended by the Act of December 10, 1959, P.L. 1746, § 1, as amended, 77 P.S. § 1208(n) (Supp.1974). This provision remains unchanged in the 1972 amendments.