Is An Employer Responsible for An Employee's Work-Related Hearing Loss If It Fails to Establish That It Was Attributable to a Prior Employer ?
In Anchor Hocking Packaging Company v. Workers' Compensation Appeal Board (Martin), 735 A.2d 157 (Pa. Cmwlth. 1999), this Court extended the Rich analysis to a situation involving two potential employers, Anchor Hocking and Anchor Hocking Packaging Company.
Although Anchor Hocking is distinguishable from the present controversy because there was no evidence presented that described the acquisition of the plant where Gary L. Martin (Martin) worked, this Court's reasoning is instructive:
Although Rich dealt specifically with non-occupational hearing loss, the above reasoning is equally applicable when an employer attempts to avoid responsibility for previous work-related hearing loss.
Even if Employer Anchor Hocking Packaging Company here is a 'new employer,' . . . then it would still be required to establish that at or prior to employment with it, Claimant Martin suffered from previous occupational hearing loss with a previous employer.
In other words, Employer Anchor Hocking Packaging Company, and not Claimant Martin, would be required to show that prior to 1992, the date Employer Anchor Hocking Packaging Company alleges that it became Claimant's Martin new Employer, Claimant Martin suffered previous occupational hearing loss attributable to some prior employer.
Employer Anchor Hocking Packaging Corporation introduced no such evidence, but merely offered the opinion of Dr. Busis, which was rejected by the WCJ, who believed that none of Claimant's Martin hearing loss was directly attributable to exposure to hazardous occupational noise.
Because Employer Anchor Hocking Packaging Company did not meet its burden of establishing the percentage of Claimant's Martin hearing loss that was attributable to a prior employer, the Board and WCJ did not err in finding Employer Anchor Hocking Packaging Company and its insurer, Zurich as responsible parties for Claimant's Martin work-related hearing loss. Anchor Hocking, 735 A.2d at 160.