Workers’ Comp In-Cites
Welcome to the latest edition of Schaff & Young's Workers' Comp In-Cites. Designed to provide our clients with practical insight, Workers' Comp In-Cites outlines recent developments in Pennsylvania workers' compensation law and explains how those decisions impact our clients and their cases. Barbara Young, Michael Schaff and the other attorneys at Schaff & Young, P.C. are always available to discuss these cases – or any other questions or concerns you might have. Just give us a call at (215) 988-0090 or send an email to We look forward to hearing from you.

Hearing Loss Claims- Clarification from the Commonwealth Court

This month, the Commonwealth Court issued three decisions that helped clarify a number of issues in claims for hearing loss under the Workers' Compensation Act.

Burden of Proof

First, in City of Philadelphia v. Workers' Compensation Appeal Board (Seaman), the Court ruled that, in order to establish a right to benefits for a work-related hearing loss under Section 306(c)(8) of the Workers' Compensation Act, 77 P.S. § 513(8),a claimant must show that he or she has permanent hearing loss greater than 10 percent, that the hearing loss is work-related, and that the application for compensation was filed within three years of retirement. The Act does not require a claimant to produce evidence that his hearing loss was greater than 10 percent at the time of retirement.

Next, in Joy Mining Machinery Co. v. Workers' Compensation Appeal Board (Zerres), the Commonwealth Court held that, in order to meet his or her burden in an occupational hearing loss claim under Section 306(c)(8)(i) of the Workers' Compensation Act, 77 P.S. § 513(8)(i), all a claimant must do is to prima facie establish that the claim was timely filed by showing he or she was exposed to occupational noise while working for an employer during the three years preceding the claim.

Extent of Hearing Loss

Under Section 306(c)(8)(iii) of the Workers' Compensation Act, 77 P.S. § 513(8)(i), a claimant is barred from an award of hearing loss benefits if his or her binaural impairment is not greater than 10%, regardless whether the claimant is alleging either a binaural hear loss resulting from long-term exposure to hazardous occupational noise, or a monaural hearing loss resulting from a single incident of trauma. Because, according to the Commonwealth Court in Duncannon Borough & Authority v. Workers' Compensation Appeal Board (Bruno), a determination of monaural hearing loss may always be converted into a determination of the percentage of binaural impairment, each claimant, whether alleging a hearing loss in one ear or both, has a binaural impairment rating.

December 2010 Edition
Volume IV
Number 11

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Utilization Review – Evidence Upon De Novo Review by a WCJ

Review of a utilization review determination is a de novo proceeding in which either party is free to offer evidence beyond that considered in the UR process. That’s the ruling of the Commonwealth Court in The Road Toad, Inc. v. Workers' Compensation Appeal Board (McLean). As a result, testimony by the employer's medical expert, who examined the claimant after the employer filed the Petition for Review of UR Determination, should have been considered by the Workers' Compensation Judge.

Supreme Court Agrees to Hear Case Involving Calculation of Benefits

In Lancaster General Hospital v. Workers' Compensation Appeal Board (Weber-Brown), the Pennsylvania Supreme Court agreed to decide the following issue:

Whether the Commonwealth Court erred in concluding that Section 309 of the Workers' Compensation Act, 77 P.S. § 582, permits a claimant's workers' compensation benefits to be calculated based on wages earned with an employer different from the one paying the benefits and where the change in employer took place more than 52 weeks before the date of injury?