IN THE COMMONWEALTH COURT OF PENNSYLVANIA
FirstEnergy Nuclear Operating :
Company, :
Petitioner :
:
v. : No. 1420 C.D. 2021
:
Paul G. Koch, Jr. (Workers’ :
Compensation Appeal Board), :
Respondent : Submitted: October 10, 2023
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: November 16, 2023
FirstEnergy Nuclear Operating Company (Employer) petitions for review of
the November 19, 2021 Order of the Workers’ Compensation Appeal Board (Board),
which affirmed a decision and order by a workers’ compensation judge (WCJ)
granting a Claim Petition filed by Paul G. Koch, Jr. (Claimant). Employer argues
that the WCJ improperly rejected the testimony of Employer’s medical witness that
Claimant’s hearing loss was not work-related, and that the testimony of Claimant’s
medical witness was insufficient to support Claimant’s burden of proof. Upon
review, we affirm.
I. Background
Claimant filed a Claim Petition on January 29, 2019, pursuant to the Workers’
Compensation Act,1 in which he alleged that long-term workplace exposure to
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
hazardous noise led to a partial loss of his hearing. See Certified Record (C.R.), Item
No. 2. From 1977 to 2016, Claimant was an employee of Duquesne Light Company;
he worked for Employer from the time of its acquisition of Duquesne Light in 1999
until February 2, 2016. C.R., Item No. 5, Decision and Order of the WCJ, 4/2/2021
(WCJ Decision), Findings of Fact (F.F.) No. 1(b). Claimant alleges that he was
continually exposed to hazardous noise during his 39-year tenure with the two
companies, during which he held several positions. Id., F.F., No. 1(j)-(o). In his
Claim Petition, Claimant stated that he was seeking reimbursement for medical bills
and counsel fees, as well as compensation for his hearing loss. O.R., Item No. 2.
In support of his Claim Petition, Claimant offered his own testimony at a
hearing before the WCJ on June 20, 2019, as well as at a July 22, 2019 deposition.
WCJ Decision, F.F. No. 1. Claimant also presented the August 5, 2020 deposition
testimony of Dr. Michael Srodes, an otolaryngologist. Id., F.F. No. 2. In its defense,
Employer presented the October 29, 2020 deposition testimony of Dr. Douglas
Chen, also an otolaryngologist, who performed an Independent Medical
Examination (IME) of Claimant on February 27, 2020. Id., F.F. No. 3.
A. Claimant’s Evidence
At the time of his testimony, Claimant was 61 years of age. O.R., Item No.
11, Hr’g Tr., 6/20/2019, at 7. Claimant recalled that he began working for Duquesne
Light in 1977 as a “cable man,” in which capacity he was responsible for cleaning
out manholes with a hydraulic “super sucker” machine. Id. at 44. The machine sat
over the manhole while Claimant, who described its noise as like “a lawnmower
amplified 100 times,” descended into the manhole with an attached hose. Id. at 44-
45. Claimant moved to the Beaver Valley Power Station in 1983, where he became
a “startup operator” responsible for “whatever [was] necessary to get the plant up
2
and running.” Id. at 41. In that position, Claimant was again exposed to considerable
noise as he was required to walk amid, and sometimes climb atop, the power
station’s machinery. Id. at 41-43. Although the power station provided earmuffs,
Claimant recalled that they were impractical when workers such as he were required
to crawl into tight spaces. Id. at 42. From 1985 to 2009, while working as an
instrument control technician, Claimant was responsible for the calibration of
pressure switches and other instruments necessary to control the temperature of
power station equipment. Id. at 38-39. The noise of that equipment was, in
Claimant’s words, “like a train[,] amplified.” Id. at 35. Claimant recalled that his
hearing was periodically tested at work. Id. at 17-18.
From 2009 until his 2016 retirement, Claimant worked as a metrologist, and
was responsible for the adjustment and repair of the power station’s various
measuring instruments. Id. at 25. Much of the work he performed in that capacity
was done in a laboratory where the equipment emitted substantial, high-pitched
noise. Id. at 32. Adding to the noise was the work of Claimant’s colleagues, who
performed welding, grinding, and the cutting of metal inside the laboratory. Id. at
31. Claimant was also brought into close contact during this period with the power
station’s steam turbines, the noise of which Claimant described as “deafening.” Id.
at 28-29.
Claimant first encountered issues with his hearing in 2002, when he noticed
that it was difficult to understand his children and his then-wife while they were
speaking. Id. at 11. The difficulties worsened in the following years and, in 2014,
Claimant began using hearing aids. Id. at 13. Claimant acknowledged that he did
not complain of his hearing issues to his primary care physician. Id. at 54. Neither
Claimant’s mother, nor his father, nor his seven brothers and sisters experienced
3
hearing loss. Id. at 8-9. Although Claimant acknowledged that he rode a motorcycle
and engaged in recreational shooting, he always wore ear protection at the gun range,
and maintained that the motorcycle was not particularly loud. Id. at 21-22.
Claimant also hunted recreationally from 1973 until 2009, for which he did not wear
ear protection, as he would only shoot a couple of times during each outing. Id. at
20.
Dr. Srodes, a board-certified otolaryngologist, testified that he examined
Claimant on May 28, 2019, at the request of Claimant’s counsel. C.R., Item No. 16,
Srodes Dep., 8/5/2020, at 8. Before the physical examination began, Dr. Srodes
reviewed Claimant’s work history, family history, and personal history. Id. at 9. Dr.
Srodes noted that Claimant occasionally used a chainsaw to chop wood and a riding
lawnmower to cut grass, and that he hunted with a rifle occasionally. Id. at 11.
Regarding Claimant’s work history, Dr. Srodes noted that his only job before joining
Duquesne Light did not involve noise exposure, and that Claimant never served in
the military. Id. at 15. Dr. Srodes did not recall discussing Claimant’s motorcycle
use, but remarked during his testimony that he did not believe moderate motorcycle
riding such as Claimant’s would have caused hearing loss. Id. at 13. Claimant also
told Dr. Srodes that he was hit in the head with a baseball bat in 1979, which broke
his jaw, but Dr. Srodes did not believe that such an injury would have caused
permanent hearing loss. Id. at 26.
During the physical examination, Dr. Srodes determined that there was no
anatomical cause of hearing loss: Claimant had “normal looking ears, normal ear
drums, [and] normal middle ear space.” Id. at 20. Immediately following Dr.
Srodes’ examination, an audiologist in Dr. Srodes’ practice administered a hearing
test. Id. Using the formula developed by the American Medical Association (AMA)
4
to calculate hearing loss,2 Dr. Srodes determined following the hearing test that
Claimant suffered from 31.875% hearing loss in his left ear and 39.375% hearing
loss in his right ear. Id. at 20-21. The overall binaural calculation, or figure
representing Claimant’s overall hearing loss, was 33.125%. Id. at 20. Reviewing
the hearing test results, Dr. Srodes also determined Claimant’s hearing to be least
affected at the lowest and highest frequencies, and at its worst in the middle
frequency range. Id. at 24-25. Those results were significant according to Dr.
Srodes because, when hearing loss is age-related, “you will tend to see the loss in
the highest frequencies first.” Id. at 25.
Based on his examination of Claimant and examination of the relevant
records, Dr. Srodes concluded within a reasonable degree of medical certainty that
Claimant’s hearing loss was work-related. Id. at 23-24. In spite of the 33.125%
figure determined by the May 28, 2019 hearing test, Dr. Srodes opined that Claimant
suffered a binaural hearing loss of 26.57%. Id. at 23. Dr. Srodes obtained that figure
from a previous hearing test conducted in March 2019; its results, Dr. Srodes
explained, were more reliable because the test was conducted closer to Claimant’s
2016 retirement. Id.
To corroborate his conclusion, Dr. Srodes compared the results with those of
Claimant’s previous hearing tests. Id. at 21. The first was administered in 1977,
months after Claimant began working for Duquesne Light, and indicated a normal
hearing ability. Id. at 22. Beginning with a 1990 hearing test, however, Dr. Srodes
noticed a weakening of Claimant’s hearing in the middle frequency range,
suggesting that the hearing loss pattern detected during the May 28, 2019 test was
2
Under Section 306(c)(8)(i) of the Act, the percentage of hearing impairment “shall be
calculated by using the binaural formula provided in the [AMA] Impairment Guides.” 77 P.S.
§ 513(8)(i).
5
already occurring when Claimant was only 33. Id. at 25. Dr. Srodes found it
significant that Claimant showed early signs of hearing loss at such a young age. Id.
at 25.
B. Employer’s Evidence
Dr. Chen, also a board-certified otolaryngologist, examined Claimant on
February 27, 2020. C.R., Item No. 32, Chen Dep., 10/29/2020. At the appointment,
Claimant presented with tinnitus, or ringing, in both ears as well as hearing
difficulties that had afflicted him since 2002. Id. at 6. Dr. Chen reviewed Claimant’s
history before the examination, including the records from Dr. Srodes’ examination.
Id. at 5. Like Dr. Srodes, Dr. Chen observed that Claimant had anatomically normal
ears, with no visible cause of hearing loss. See id. at 11. A hearing test that followed
the examination determined that Claimant suffered from a hearing impairment of
41.25% in the right ear and 33.75% in the left, resulting in a total binaural
impairment of 35%.3 Id. at 12. Dr. Chen acknowledged that the results of the
hearing test were not significantly different from the results of the one conducted at
Dr. Srodes’ office nearly one year before. Id. at 16.
Although in full agreement with Dr. Srodes on the extent of Claimant’s
hearing impairment, Dr. Chen concluded within a reasonable degree of medical
certainty that the impairment was age-related, not work-related. Id. at 20. Dr. Chen
explained that occupational noise-induced hearing impairment is “most substantial
during the first 10 to 15 years of exposure, and thereafter slows.” Id. at 18. If the
progress of a patient’s hearing loss does not follow that pattern, Dr. Chen explained,
3
In his testimony, Dr. Chen emphasized that the hearing test was conducted to determine
Claimant’s hearing impairment rather than hearing loss. Id. at 17. Dr. Chen explained that, while
hearing loss is a direct reflection of the data on an audiogram, the formula given in the AMA
Impairment Guides is specifically designed to calculate hearing impairment. Id.
6
then “other factors, including aging, need to be considered.” Id. Dr. Chen observed
that Claimant’s binaural hearing impairment remained at zero percent until 2006.
Id. As recently as 2011, according to Dr. Chen, an audiogram reflected a total
binaural hearing impairment of just 2.188%. Id. at 19. Dr. Chen concluded after his
review of Claimant’s records that his hearing impairment did not begin to accelerate
substantially until 2014. Id. The connection between Claimant’s exposure to
occupational noise and his hearing impairment was even more improbable, in Dr.
Chen’s view, in light of the fact that Claimant’s hearing has worsened since his
retirement. Id. at 22. Dr. Chen maintained that occupational noise exposure
“produced hearing loss at the time of exposure,” not hearing loss delayed by decades.
Id. at 22.
C. The WCJ’s Decision
In an April 2, 2021 decision, the WCJ granted the Claim Petition. WCJ
Decision, Conclusion of Law (C.L.) No. 2. Regarding the medical testimony, the
WCJ credited Dr. Srodes’ opinions over Dr. Chen’s. Id., F.F. No. 4(e). The WCJ
explained that Dr. Srodes’ conclusion regarding the work-relatedness of Claimant’s
hearing loss was well supported by Claimant’s “medical history, his family history,
his physical exam, and the audiometric testing.” Id., F.F. No. 4(d). Dr. Chen’s
testimony that Claimant suffered 0% hearing impairment due to work exposure was
not credible, according to the WCJ, in light of Claimant’s employment for many
years in hazardously noisy environments. Id., F.F. No. 4(d)-(e). The WCJ thus
concluded that Claimant suffered a binaural hearing loss of 26.57% as the result of
that exposure, and awarded Claimant approximately 69 weeks of benefits. Id.,
7
Conclusion of Law (C.L.) No. 2. Employer appealed to the Board, which affirmed.
See C.R., Item No. 8. This appeal followed.4
II. Issues
Employer argues that the Board erred in affirming the WCJ, because
Employer’s medical expert gave “uncontradicted” testimony that Claimant’s hearing
loss occurred too late to have been work-related. Employer’s Br. at 11. In the
alternative, Employer argues that even if occupational noise exposure was a cause
of Claimant’s hearing loss, the testimony of his medical expert was insufficient to
establish the degree to which occupational noise was responsible.
III. Discussion
Section 306(c)(8)(i) of the Act provides that benefits may be awarded to an
employee who has sustained a “permanent loss of hearing which is medically
established as an occupational hearing loss caused by long-term exposure to
hazardous occupational noise.” 77 P.S. § 513(8)(i). A claimant seeking such
benefits carries the “burden of establishing he or she suffered permanent hearing loss
of 10% or greater,” and that the hearing loss “is medically established to be work-
related and caused by the long-term exposure to hazardous occupational noise.”
Elliott v. Workers’ Comp. Appeal Bd. (Shipley), 795 A.2d 480, 486 (Pa. Cmwlth.
2002). The employer may assert as an affirmative defense that the exposure was not
long-term, or that the noise was “not hazardous.” Meadvill Forging Co. v. Workers’
Comp. Appeal Bd. (Artman), 747 A.2d 958, 961 (Pa. Cmwlth. 2000). Whether a
claimant has been exposed to hazardous occupational noise is a question of fact for
4
This Court’s review is limited to determining whether the necessary findings of fact were
supported by substantial evidence, constitutional rights were violated, or errors of law were
committed. Borough of Heidelberg v. Workers’ Comp. Appeal Bd. (Selva), 928 A.2d 1006, 1009
(Pa. 2007). Where the issue presented involves a question of law, our standard of review is de
novo and our scope of review is plenary. Id.
8
the WCJ. Helvetia Coal Co. v. Workers’ Comp. Appeal Bd. (Learn), 913 A.2d 326,
329 (Pa. Cmwlth. 2006).
The WCJ is the ultimate finder of fact and the exclusive arbiter of credibility
and evidentiary weight. Lindemuth v. Workers’ Comp. Appeal Bd. (Strishock Coal
Co.), 134 A.3d 111, 125 (Pa. Cmwlth. 2016). In executing her role as factfinder, the
WCJ is free to accept or reject, in whole or in part, the testimony of any witness. Id.
Whether the record contains evidence to support findings other than those made by
the WCJ is irrelevant; the proper inquiry is whether substantial evidence exists to
support the findings actually made. Minicozzi v. Workers’ Comp. Appeal Bd. (Indus.
Metal Plating, Inc.), 873 A.2d 25, 29 (Pa. Cmwlth. 2005). Substantial evidence is
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. City of Philadelphia v. Workers’ Comp. Appeal Bd. (Kriebel), 29 A.3d
762, 769 (Pa. 2011).
Instantly, Employer does not offer evidence that the noise to which Claimant
was exposed was not hazardous, or that the exposure was not long-term. Rather,
Employer’s objection is that its medical expert, Dr. Chen, gave “dispositive
testimony” on the question of whether the occupational noise was the cause of
Claimant’s hearing issues. Employer’s Br. at 10. Specifically, Dr. Chen explained
that binaural hearing impairment caused by occupational noise exposure manifests
itself within 10 to 15 years of the beginning of that exposure, and that Claimant’s
hearing issues accelerated “outside of that window.” Id. at 13. Employer maintains
that Dr. Chen’s conclusions were “uncontradicted by Dr. Srodes.” Id. at 10.
Accordingly, Employer asks that this case be remanded so that the WCJ may
“properly consider the testimony of Dr. Chen.” Id. at 18.
9
Employer’s arguments are unavailing. First, we note that it is not Employer’s
role to determine whose testimony is dispositive; as we explain above, that function
is performed by the WCJ in her capacity as the factfinder. Furthermore, Employer’s
contention that Dr. Chen’s testimony was uncontradicted is simply untrue. Dr.
Srodes’ testimony that Claimant’s hearing impairment was caused by his exposure
to occupational noise directly controverts Dr. Chen’s conclusion that the impairment
was age-related. We do not dispute that Dr. Chen offered a plausible theory as to
the causes of Claimant’s hearing impairment; however, the relevant inquiry is
whether evidence exists to support the findings that the WCJ actually made.5 As the
WCJ’s reasons for crediting Dr. Srodes’ testimony over Dr. Chen’s are supported by
the evidence, we will not disturb her conclusions.
Finally, Employer argues that, even if it were agreed upon that Claimant’s
hearing loss was work-related, Dr. Srodes’ testimony is insufficient to establish the
degree to which occupational noise was the cause of that hearing loss. Employer
explains that Claimant’s last exposure to occupational noise occurred on February
2, 2016; meanwhile, the hearing test from which Dr. Srodes derived his conclusion
that Claimant suffered a 26.57% hearing loss was administered in March 2019, more
than three years later. Thus, Employer argues, “it is unknown what Claimant’s
hearing impairment was at the time of his last noise exposure even if it is assumed
that the hearing impairment at that time was work-related.” Id. at 16.
5
Employer also maintains that the WCJ’s decision “reflected a complete lack of
understanding of the difference between hearing loss and binaural hearing impairment.”
Employer’s Br. at 10. This assertion is an apparent reference to Dr. Chen’s testimony that the
AMA Impairment Guides determine hearing impairment, whereas hearing loss is directly
represented on an audiogram. See Chen Dep., 10/29/2020, at 17. We do not dispute that the
distinction between hearing loss and hearing impairment is medically significant. However, we
disagree that it has any impact on the outcome of this case, given that both doctors employed the
AMA Impairment Guides in reaching their conclusions. See Srodes Dep., 8/5/2020, at 20-21.
10
Employer’s contention, for which it cites no relevant legal authority, is
unpersuasive. Neither Section 306(c)(viii) nor any other Act provision requires that
a hearing test be administered on or before Claimant’s last day of employment. In
fact, Section 306(c)(8)(viii) clearly states that the claim “shall be barred unless a
petition is filed within three years after the date of last exposure to hazardous
occupational noise in the employ of the employer against whom benefits are sought.”
77 P.S. 513(8)(viii). This Court has stated that Section 306(c)(8)’s three-year limit
is “the only deadline imposed on those seeking compensation for a work-related
hearing loss.” City of Phila. v. Workers’ Comp. Appeal Bd. (Seaman), 8 A.3d 1004,
1009 (Pa. Cmwlth. 2010) (emphasis added). In this case, the Claim Petition was
filed on January 29, 2019, less than three years after Claimant’s last day of work.
The assertion that Claimant carried a burden to prove the precise extent of his
hearing impairment on or before his last day of work is without merit.
IV. Conclusion
This Court’s role in a workers’ compensation case is not to reweigh the
evidence or the credibility of the witnesses, but simply to determine whether the
WCJ’s findings have the requisite measure of support in the record as a whole. Elk
Mountain Ski Resort, Inc. v. Workers’ Comp. Appeal Bd. (Tietz, deceased), 114 A.3d
27, 33 n.5 (Pa. Cmwlth. 2015). The WCJ’s findings in this case are supported by
substantial evidence. Accordingly, we affirm the Board.
__________________________________
ELLEN CEISLER, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
FirstEnergy Nuclear Operating :
Company, :
Petitioner :
:
v. : No. 1420 C.D. 2021
:
Paul G. Koch, Jr. (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 16th day of November, 2023, the order of the Workers’
Compensation Appeal Board in the above-captioned matter, dated November 19,
2021, is AFFIRMED.
__________________________________
ELLEN CEISLER, Judge