When Does Statute of Limitations Start for Long-Term Exposure to Hazardous Occupation Noise for a Still Employed Employee ?
In CBS/Westinghouse v. Workers' Compensation Appeal Board (Fontana), 829 A.2d 1224 (Pa. Cmwlth. 2003), the Court explained when the time period for filing a claim for long-term exposure to hazardous occupation noise began to run for an employee who was still employed, stating:
Section 306(c)(8)(ix) of the Act provides:
The date of injury for occupational hearing loss under subclause (i) of this clause shall be the earlier of the date on which the claim is filed or the last date of long-term exposure to hazardous occupational noise while in the employ of the employer against whom the claim is filed. 77 P.S. 513(8)(ix).
In accordance with Section 360(c)(8)(ix), we recognized in [Flatley v. Workers' Compensation Appeal Board (Mallinckrodt Chemical, Calsicat Div.), 803 A.2d 862 (Pa. Cmwlth. 2002)] that the correct date of injury for purposes of hearing loss claims is the date of the claimant's last exposure to hazardous occupational noise.
Consequently, the relevant three-year time period for a claimant who is still working begins to run from the date his claim is filed.
In contrast, where a claimant is no longer working, his date of injury would be that of his last exposure, which is normally his last date of employment.
Finally and most recently, in McIlnay v. Workers' Compensation Appeal Board (Standard Steel), 870 A.2d 395 (Pa. Cmwlth.), petition for allowance of appeal denied, 584 Pa. 711, 885 A.2d 44 (2005), the Court explained that since the passage of Act 1, the "discovery rule" under Section 315 of the Workers' Compensation Act, 77 P.S. 602, was no longer applicable to hearing loss cases.