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The three-year statute of limitations for bringing a workers’ compensation claim alleging occupational hearing loss began on an employee’s last day of work, even though the brunt of his exposure to hazardous noise occurred prior to a two-year hiatus in employment, the Pennsylvania Commonwealth Court has ruled. Affirming a Workers’ Compensation Appeal Board ruling, a 2-1 majority of the court panel in CBS/Westinghouse v. Workers’ Compensation Appeal Board, PICS Case No. 03-1239 (Pa. Commw. Aug. 8, 2003) Jiuliante, S.J.; Cohn, J., dissenting (11 pages), said that the Workers’ Compensation Act clearly starts the SOL clock on the date of last exposure to hazardous occupational noise — typically the last day of employment. “In accordance with Section 306(c)(8)(ix), [this court has recognized] that the correct date of injury for purposes of hearing loss claims is the date of the claimant’s last exposure to hazardous occupational noise,” Senior Judge Jess S. Jiuliante wrote in an opinion joined by Judge Dan Pellegrini. “Consequently, the relevant three-year time period for a claimant who is still working begins to run from the date his claim is filed. “In contrast, where a claimant is no longer working, his date of injury would be that of his last exposure, which is normally his last date of employment.” But in a dissenting opinion, Judge Renee L. Cohn said that the workers’ compensation judge failed to make any findings of fact regarding whether the claimant was exposed to hazardous occupational noise in the last eight days of his employment following a two-year hiatus. “While the [WCAB] appears to have made such a ‘finding’ in its adjudication,” Cohn wrote, “the law has been well settled for three decades that the Board is powerless to do so. … Without any proper factual findings that Claimant was exposed to hazardous noise during that eight day period, there is, in my view, no basis to conclude that the claim petition at issue here was filed timely.” On Feb. 23, 1999, claimant John Fontana filed a workers’ compensation claim petition, alleging that he suffered more than 10 percent binaural hearing loss as a result of exposure to hazardous occupational noise while employed as a welder with CBS/Westinghouse Electric Corp. Fontana was employed with the corporation between Feb. 28, 1993, and March 13, 1994, before taking a two-year hiatus from work, returning on a light duty capacity for only eight days in February 1996. He set the date of injury on Feb. 28, 1996 — his last day of work with the corporation. In June 2001, a WCJ concluded that Fontana established a 29.375 percent hearing loss as a result of exposure to occupational noise with CBS/Westinghouse. The employer had raised a statute of limitations defense, but the WCJ made no findings on that issue. On appeal, the WCAB found that because Fontana was last exposed to hazardous occupational noise on Feb. 28, 1996, his exposure as of his first day of employment, notwithstanding his hiatus in employment, would entitle him to benefits. “Thus, the fact that Claimant was not working, and thus clearly not exposed to work related hazardous occupational noise, from March 14, 1994, to February 10, 1996, does not defeat his claim for benefits, given that he was exposed from February 28, 1993, through March 13, 1994,” the WCAB concluded. On appeal to the Commonwealth Court, CBS/Westinghouse argued that Fontana’s claim was time-barred under Section 306(c)(8)(viii) of the Workers’ Compensation Act. Moreover, the employer asserted, Section 306(c)(8)(x) also precluded Fontana’s claim as he was not exposed to long-term hazardous occupational noise within the three-year period preceding the filing of his petition. Section 105.6 of the act defines “long-term exposure” as “exposure to noise exceeding the permissible daily exposure for at least three days each week for forty weeks of one year.” Citing the Commonwealth Court’s ruling in Flatley v. Workers’ Compensation Appeal Board (Mallinckrodt Chemical, Calsicat Division), 803 A.2d 862 (Pa. Commw. 2002), appeal denied, 820 A.2d 705 (Pa. 2003), CBS/Westinghouse argued that the three-year period preceding the filing of a claim petition is the relevant time period when considering whether an employee’s exposure to noise is hazardous or long-term. However, Flatley involved a claim filed by a current employee, rather than a former employee, as is the case in CBS/Westinghouse. Jiuliante pointed to a footnote in Flatley that said if a claimant “no longer worked for [the employer], the relevant time period would be three years previous to [the claimant's] last day of exposure to occupational noise, which is normally the last day of employment.” CBS/Westinghouse asserted that WCAB’s reliance on this footnote was prejudicial to the employer and undermines the purpose of the statute of limitations. But the court disagreed, holding to a strict interpretation of Section 306(c)(8)(ix) of the act, which provides that the date of inquiry for a claim of occupational hearing loss “shall be the earlier of the date on which the claim is filed or the last date of long-term exposure to hazardous occupational noise while in the employ of the employer against whom the claim is filed.” Accordingly, the court concluded, the WCAB appropriately interpreted Flatley to determine that the date of injury occurred on Fontana’s last of employment with CBS/Westinghouse, while still encompassing Fontana’s long-term exposure to hazardous occupational noise between 1993 and 1994. “That period of time clearly exceeds the required exposure of three days per week for forty weeks needed to qualify as long-term exposure under Section 105.6 of the Act,” Jiuliante wrote. Judge Cohn, however, said in her dissent that the matter should be remanded to the WCJ for additional fact finding to resolve conflicting evidence involving the type of occupational noise to which Fontana was exposed in the last day’s of his employment. “Claimant stated that, during his last eight days of employment, he was exposed to noise similar to that which he was exposed to while working as a welder,” Cohn wrote. “However, Employer’s medical expert, Dr. Sidney M. Busis, who is a board-certified otolaryngologist, stated that working in a store room for eight days was not long-term exposure to hazardous noise. This conflicting evidence requires reconciliation and, thus, factual findings are required.”

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