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Two claimants suffering from hearing loss have secured victories in the state’s Supreme Court, paving the way for others who want to stop their employers from using a 1995 amendment to the Workers’ Compensation Act against them. At issue in both cases, LTV Steel Co. Inc. v. Workers’ Compensation Appeal Board (Mozena) and USX Corp. v. WCAB (Rich), was the interpretation of Act 1 of 1995, the Hearing-loss amendment to the Workers’ Compensation Act. The cases were consolidated on appeal to the high court. They represent the first time Pennsylvania’s justices have considered the amendment. Both employers argued that under Act 1, they should not be responsible for the portion of a claimant’s hearing loss caused by presbycusis. Presbycusis, derived from the Greek words for “old man” and “hearing,” is a form of hearing loss due to the natural deterioration within the ear, Justice Sandra Schultz Newman said in the court opinion. The symptoms come to light gradually and progressively and are similar to those associated with occupational hearing loss, she said. The justices ruled unanimously that the amendment did not give employers the ability to use presbycusis to reduce their liability. “Because there is no way to distinguish, scientifically or mathematically, the amount of hearing loss caused by acoustic trauma from that caused by the aging process, and Act 1 provides for no standard to measure presbycusis, we find that Act 1 of 1995 does not permit a deduction from a claimant’s total binaural hearing impairment for that portion of the impairment caused by presbycusis,” Newman said. “Therefore, you can not deduct that portion of the impairment caused by presbycusis from the total binaural hearing impairment.” Defendant LTV Steel also presented the judges with an issue of corporate liability, arguing that because it acquired the claimant’s previous employer some time after he began experiencing hearing damage, it should be responsible only for the injuries he suffered as its employee. AMENDMENT The claimant in USX, Donald Rich, started working at USX Corp. in 1953. He filed his claim petition in 1995, alleging that his long-term exposure to occupational noise — including sirens, horns and steam pipes — caused him to suffer a bilateral hearing loss. John Mozena, the LTV Steel claimant, filed a claim petition in 1995, alleging that during the course of his almost 40 years of employment at a steel plant, he, too, suffered a bilateral hearing loss. Act 1 does not mention presbycusis or any other specific non-occupational cause of hearing loss. It just says that an employer is liable only for the hearing loss it causes and that an employer is not liable for hearing impairment arising from non-occupational causes. In both cases, the Commonwealth Court affirmed Workers’ Compensation judges’ decisions not to allow the defense to present testimony that a portion of the claimants’ hearing loss was due to the aging process rather than occupational noise. Before the Supreme Court, USX and LTV Steel argued that Section 306(c)(8)(vi) of the WCA clearly calls for a reduction in an employer’s liability for hearing loss caused by non-occupational factors. And because no exception was made specifically for presbycusis, USX claimed it was illegal to exclude it as a non-occupational cause of hearing loss. But Newman said looking at that section alone did not give a full picture of the legislature’s intent in drafting the act. The Commonwealth Court’s analysis, on the other hand, did show a clear understanding of the spirit of the WCA, she said. “Accordingly, in its opinion in USX Corp., the Commonwealth Court understood that if [Section 306(c)(8)(vi)] were to allow a reduction for presbycusis based on general, statistical formulas, employees may be left uncompensated for a work-related injury,” Newman wrote. Newman explained that the progressive nature of hearing loss makes it difficult to pinpoint the exact date when hearing impairment first takes place. “The Commonwealth Court expressed its concern in permitting employers to avoid payment of benefits when it cannot isolate the effects of aging. We share this apprehension,” Newman said. “Courts must have reliable means for distinguishing the effects of presbycusis from the effects of long-term exposure to occupational noise.” USX and LTV Steel were not convinced that the Legislature rejected presbycusis as a non-occupational cause of hearing loss. They claimed that if the General Assembly wanted to exclude it, “it would have done so explicitly,” Newman said. The only standard the legislature did provide in Act 1 is the American Medical Association’s Guides to the Evaluation of Permanent Impairment. The guides describe the criteria for evaluating “permanent impairments resulting from the principal dysfunctions of the ear,” but do not discuss age-related hearing loss. “We find it useful in interpreting the intent of the Legislature that it considered age as a factor but, ultimately, provided no method for assessing its effect,” Newman said. “We also recognize that presbycusis is distinguishable from other nonoccupational factors. There is no reliable scientific (controlled) means of quantifying how aging impairs the hearing of a given individual. Whereas, the effect of many other nonoccupational factors is quantifiable. “Courts have reduced an employer’s responsibility for benefits where it established that a nonwork-related cause was the substantial contributing factor of hearing impairment.” Newman said it was not true, as USX and LTV Steel argued, that the Commonwealth Court’s decision prevent employers from presenting evidence of all non-occupational causes of hearing loss. “Where the nonoccupational causes of a specific individual’s hearing impairment is quantifiable using the AMA Guides, either side may present evidence of the percentage of loss,” she said. CORPORATE CLAIM LTV Steel presented a horse of a different color to the justices, focusing on its responsibilities as a second employer of a claimant allegedly suffering from occupational hearing loss. LTV Steel said Act 1 eliminated the “last injurious exposure rule” and made each employer responsible for the percentage of hearing loss it caused. The “last injurious exposure rule” held that the last employer the claimant is employed with is responsible for all work-related loss of hearing throughout the claimant’s working life, not just for the hearing loss caused by his employment with that specific employer. But under the amendment, an employer is liable only for the hearing loss “caused by such employer.” The employer is not responsible for hearing loss existing “at or prior to the time of employment.” Although Mozena started working at the steel plant in 1957, LTV did not acquire the plant until 1974. LTV said it should be held liable only for whatever injuries Mozena suffered after 1974. Newman said the high court agreed with LTV and the Commonwealth Court that the “last injurious exposure rule” was replaced with specific-loss liability. “Consequently, where there has been more than one employer, an employer may present evidence of the percentage of hearing impairment it caused to limit its responsibility for paying benefits,” Newman said. “Section 306(c)(8)(vi) requires an employer to establish hearing impairment caused by a previous employer, or by nonoccupational factors, at or prior to the time of employment. This also generates a baseline for the new employer to calculate any future hearing loss.” However, testimony had been presented that as a “successor-in-interest,” LTV assumed not only all of J&L’s assets but also its liabilities, including workers’ compensation claims existing before 1974. “If we allowed a surviving company to deny responsibility for hearing loss caused by its predecessor, we would be sanctioning corporate restructuring as a means of escaping liability,” Newman said. “We agree with the Commonwealth Court that such a result would not advance the humanitarian objectives of the act.” Tracy Blitz Newman contributed to this report.

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