# USX Corp. v. Workers' Compensation Appeal Board

> Commonwealth Court of Pennsylvania · December 12, 2001 · 788 A.2d 1101

URL: https://www.frixlaw.com/law-library/cases/9712162

## Case

- **Full name:** USX CORPORATION (Clairton), Petitioner, v. WORKERS’ COMPENSATION APPEAL BOARD (LABASH), Respondent
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** December 12, 2001
- **Citations:** 788 A.2d 1101; 2001 Pa. Commw. LEXIS 884
- **Precedential status:** Published
- **Opinion:** Dissent by McCLOSKEY
- **Judges:** McCloskey, Smith, Friedman, Mecloskey
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

McCLOSKEY, Senior Judge,
Dissenting.
I respectfully dissent as I disagree with the majority’s finding that the Workers’ Compensation Appeal Board (Board) correctly concluded that USX Corporation (Clairton) (hereafter Employer) had waived any issue regarding the submission of the audiogram of Dr. Stephen Froman, Claimant’s medical witness, by failing to object to its admission into the record. I do not dispute that a Workers’ Compensation Judge (WCJ) is at liberty to rely upon an audiogram where the record reveals no evidence that it was not performed in accordance with OSHA standards. See Bethlehem Steel Corporation v. Workers’ Compensation Appeal Board (Graaf), 768 A.2d 1237 (Pa.Cmwlth.2001). However, I do disagree with the majority’s application of this principle to the facts of this case.
Here, both Employer and JoAnn La-bash, widow of Joseph Labash and hereafter referred to as Claimant, presented au-diometric test results and testimony in *1107 support of the same. 1 The results of both audiograms were admitted into evidence without objection. Admittedly, counsel for Employer chose not to question Dr. Fro-man regarding applicable OSHA standards, while counsel for Claimant did so question Nurse Micenko.
However, Nurse Micenko simply testified on cross-examination that she was “not real clear on what OSHA’s guidelines [were]” and that she “[didn’t] know” what the OSHA requirements were, if any, with respect to conducting the audiometric testing and calibrating the equipment. (R.R. at 49a 51a). This testimony of Nurse Mi-cenko did not constitute evidence that the audiogram she conducted on Claimant did not meet OSHA standards. Rather, the question remained whether or not the au-diogram actually met these standards. Hence, I believe that the WCJ erred by rejecting Employer’s audiogram for its purported failure to comply with OSHA standards. Further, I do not believe that said testimony is a sufficient basis upon which to reject Employer’s audiogram under Graaf, as the majority so holds.
Moreover, by relying on the testimony of Nurse Micenko, as well as Employer’s lack of cross-examination of Dr. Froman, the majority essentially renders cross-examination tantamount to placing an objection on the record. I do not believe that testimony in the form of cross-examination can ever replace and/or act as a substitute for objecting to the submission of evidence into the record. For these reasons, I would vacate the order of the Board and remand the matter to the Board, with specific instructions to remand the case to the WCJ for further findings of fact and conclusions of law regarding both audio-grams.
. Claimant presented the testimony of Dr. Froman, while Employer presented the testimony of Lucille Micenko, a registered nurse with South Hills Health System, which in turn is contracted with Employer to conduct audiometric testing services.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9712162. Public record. Not legal advice.