NGK Metals Corp. v. Workmen's Compensation Appeal Board (Bochis)

FRIEDMAN, Judge,

dissenting.

Under the circumstances presented by this case, Ronald Bochis (Claimant) had the burden of proving that his last exposure to injurious noise at work occurred after October 1986, the date that NGK Metals Corporation (NGK) became Claimant’s employer by purchasing the metals plant in which he worked. Because I believe that Claimant has satisfied this burden and, thereby, established his entitlement to benefits from NGK, I respectfully dissent.

Here, Claimant initially testified, both on direct and cross-examination, that, from 1951, he worked at a number of noisy jobs in the metals plant for NGK and its predecessors, ending his noise exposure only after he transferred to a janitorial position in the administrative offices in 1987. The workers’ compensation judge (WCJ) found Claimant credible and, based on his testimony, found as fact that Claimant was last exposed to loud and damaging noises during his employment with NGK, (WCJ’s Finding of Fact, No. 17), thus making NGK responsible for Claimant’s specific loss of the use of his hearing. Unlike the majority, I believe that Claimant’s testimony, which was the only evidence offered with respect to the critical starting date of Claimant’s janitorial job, provided substantial evidence to support the WCJ’s finding.

In concluding otherwise, the majority notes that, on further cross-examination, Claimant admitted that he did not remember *132exactly when he started his janitorial position; therefore, the majority holds that “Claimant’s recanted testimony is at best equivocal and fails to establish that he was exposed to injurious noise after NGK became his employer.” (Majority op. at 131.) I cannot agree.

In reaching its determination, the majority acknowledges that a WCJ is free to accept or reject, in whole or in part, the testimony of any witness presented. Buczynski v. Workmen’s Compensation Appeal Board (Richardson-Vicks, Inc.), 133 Pa.Cmwlth. 532, 576 A.2d 421 (1990). (Majority op. at 129.) Nonetheless, the majority appears to abandon that principle and take the position that the WCJ cannot accept or reject parts of Claimant’s testimony. However, even assuming, arguendo, that the WCJ is prevented from exercising his ordinary fact-finding powers in Claimant’s case, I still do not believe that a reversal is warranted because I believe that Claimant’s testimony, taken as a whole, provides substantial evidence to support the WCJ’s finding that Claimant’s last exposure to injurious noise at work occurred while he was employed by NGK.

Here, Claimant testified that he began work as a janitor in 1987. On cross-examination, he may subsequently have acknowledged that the 1987 date was made only to the best of his remembrance;. however, contrary to the majority’s assertion, Claimant never retracted his initial testimony.1 Rather, he merely indicated that, although that is what he remembered, he might have remembered wrongly; this is no more than anyone depending on his own recall of an event must do. If NGK had evidence to show that Claimant began working as a janitor prior to NGK’s purchase of the plant in 1986, it could have presented such evidence. It did not do so.

In sum, Claimant testified that he worked in a noisy environment until he began his janitorial job which, to the best of his recollection, was in 1987, and no evidence was offered to contradict Claimant’s memory of that date. I believe that this testimony, accepted as credible by the WCJ, provided substantial support for the WCJ’s finding that Claimant was last exposed to loud and damaging noises during his employment with NGK, which began in 1986. Accordingly, with respect to this issue, I would affirm Claimant’s entitlement to specific loss of use of hearing benefits, and I would consider the other issues raised by the parties.

. The majority states that Claimant’s testimony was rendered equivocal by virtue of the fact that he recanted his original assertion with respect to the date that he began his janitorial position. I note that, in making this statement, the majority appears to apply an inapplicable standard, i.e., the standard used to evaluate medical testimony on the causal relationship between a claimant's work injury and disability, when that relationship is not obvious.