Under the Pennsylvania Workers’ Compensation Act, the workers’ comp insurance carrier is responsible for all reasonable and necessary medical treatment which is related to the work injury. In very rare circumstances, the cost of wage loss (“indemnity”) benefits and medical expenses can be allocated between more than one insurance carrier. Typically, this would be seen when the injured worker is disabled by more than a single injury, involving multiple insurance companies.
Hearing loss cases, however, are treated differently under the PA Workers’ Compensation Act. When someone losses their hearing due to excessive noise in the workplace, the Act specifically states that, “An employer shall be liable only for the hearing impairment caused by such employer.” (Section 306(c)(8)(iv)).
Recently, the Commonwealth Court of Pennsylvania decided the matter of James McClure, Sr. v. Workers’ Compensation Appeal Board (Cerro Fabricated Products). Here, the injured worker had a documented hearing loss of 18.12% in 1997, while employed by a different employer. He became employed by Cerro in 2000. No Claim Petition was filed until 2004, when he had a hearing loss of 24.69%. The prior employer was dismissed, since more than three years passed since the last date Mr. McClure was exposed to excessive noise in the employ of the previous employer (Some injuries have a “discovery rule,” where the “statute of limitations” can be extended, where the injured worker has no reason to know or suspect the injury; there is no such rule in hearing loss under the Pennsylvania Workers’ Compensation Act).
The Workers’ Compensation Judge (WCJ) granted the Claim Petition against Cerro, but ruled that they were only responsible for 6.57% of the hearing loss (the difference between the loss shown before Mr. McClure worked for Cerro and the current hearing loss). Cerro was found responsible for all reasonable and necessary medical treatment related to the hearing loss. The Workers’ Compensation Appeal Board (WCAB) affirmed the apportionment of the hearing loss, but also found the medical expenses should be similarly proportional. Specifically, Cerro should only be responsible for 26.6% of the medical expenses (the same percentage of their share of the hearing loss relative to the total hearing loss).
What makes this unique, of course, is without the other employer in the case, the injured worker was then personally responsible for 73.4% of the cost of treatment related to a work injury. This would be a very unusual result, one that seems far too harsh to ever occur in the PA workers’ comp system.
The Commonwealth Court of Pennsylvania affirmed the decision of the WCAB. The Pennsylvania Workers’ Compensation Act specifically limits liability in hearing loss cases to the hearing impairment caused by noise exposure of that employer. The Court found that this applies not only to indemnity benefits, but also to medical expenses. It was the fault of Mr. McClure, the Court noted, that a timely claim was not filed against the previous employer (and had that been done, the Court said, that employer would have been responsible for the remainder of the medical expenses).
Since the Act does not specify whether this provision was intended to apply to both indemnity and medical benefits, it seems a rather harsh result for the Court to find as it did. It does, however, serve as a reminder for every injured worker to seek legal advice from an experienced PA workers’ compensation attorney at the first thought that there may have been any type of injury. The consequences for doing nothing, as Mr. McClure learned, can be very grave.