IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dennis Carlson, :

Petitioner :

:

v. : No. 793 C.D. 2021

: Submitted: February 11, 2022

General Electric Company (Workers’ :

Compensation Appeal Board), :

Respondent :

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY SENIOR JUDGE LEAVITT FILED: June 28, 2022

Dennis Carlson (Claimant) petitions for review of an adjudication of 

the Workers’ Compensation Appeal Board (Board) that affirmed the decision of a 

Workers’ Compensation Judge (WCJ) denying his claim petition for binaural 

hearing loss due to exposure to hazardous occupational noise while working for the

General Electric Company (Employer). Claimant contends that the WCJ’s reasons 

for crediting Employer’s medical expert are not supported by substantial evidence 

and, further, because Employer did not present a reasonable contest to the claim 

petition, Claimant is entitled to costs and attorney’s fees. Discerning no merit to 

Claimant’s contentions, we affirm the Board.

On June 7, 2019, Claimant filed a claim petition pursuant to the 

Workers’ Compensation Act (Act),

1

alleging that he suffered a compensable hearing 

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2710.
2

loss because of exposure to hazardous occupational noise that caused a binaural 

hearing loss of more than 10%. Reproduced Record (R.R. __) at 4a. Employer

denied that Claimant’s hearing loss was work related, alleging that Claimant had not 

been exposed to noise levels in excess of 90 decibels, at least 3 days a week, for 40 

weeks in a 12-month period. Certified Record (C.R.), Item No. 4. 

At a hearing before the WCJ, Claimant testified that he began his work 

for Employer in November of 1977 and retired in 2019, at age 60. Notes of 

Testimony, 7/24/2019, at 8, 19 (N.T. __); R.R. 15a, 26a. From 1977 until 1994, 

Claimant did heavy fabrication in Building 5, constructing platforms for 

locomotives. This work exposed Claimant to noise produced by air arch welders, 

grinders, impact tools, sirens, cranes, and the slamming of heavy metal. Building 5 

was the noisiest environment in which Claimant worked. Claimant then worked in 

Building 10 doing final assembly from 1994 through 2010. Although quieter, this 

position exposed Claimant to noise from impact guns, air arch welding, cranes and 

sirens. From 2010 to 2015, Claimant worked in Building 12, constructing the main 

cabs for the conductor and engineer. The noise in Building 12 was similar to the 

noise in Building 10, but quieter. Finally, before his retirement, Claimant worked 

as an inspector in Building 10, where he assisted the assemblers. There, Claimant 

was exposed to intermittent noise from pressurized air and impact guns, and sirens. 

Claimant testified that, when required by Employer, he wore hearing 

protection while working in Building 5. Hearing protection was not mandatory in 

Buildings 10 or 12, but Claimant occasionally wore hearing protection in those 

buildings. Beginning in 1977, Employer performed annual audiograms on Claimant

and in 1995 informed him of a threshold shift for the first time. 
3

Also in support of his claim petition, Claimant offered the medical 

report of Dr. Robert Dugan, who has been treating Claimant since 2003. Dr. 

Dugan’s report for July 1, 2019, indicated that Claimant reported that in his 40 years 

with Employer he had been exposed to hazardous occupational noise. The report 

also stated that while Dr. Dugan never treated Claimant for ear trauma, he was not 

aware of any exposure to hazardous noise outside of Claimant’s work with 

Employer. After reviewing Claimant’s audiometry tests performed by Employer 

over the years, Dr. Dugan opined “within a reasonable degree of medical certainty” 

that Claimant’s “hearing loss was caused, or exacerbated by, exposure to hazardous 

occupational noise.” R.R. 62a.

Claimant also offered the medical report of Dr. Sean Carroll, who is 

board certified in otolaryngology, of ENT (ear, nose, and throat) Specialists of 

Northwestern Pennsylvania. Dr. Carroll examined Claimant on May 22, 2019, and 

opined that Claimant suffers from binaural symmetric hearing loss. Based on Dr. 

Carroll’s audiogram, Claimant has monaural loss for the left side of 18.75% and a 

monaural loss of 16.87% for the right side, which results in a binaural hearing loss 

percentage score of 17.18%.

2

 Dr. Carroll reviewed Claimant’s audiograms dating 

2 Dr. Carroll explained that for permanent loss of hearing due to long-term exposure to hazardous 

occupational noise, the percentage of impairment is calculated using the binaural formula provided 

in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th 

Edition) (Impairment Guides). R.R. 60a. The Impairment Guides are required by Section 

306(c)(8)(i) of the Act, added by the Act of February 22, 1995, P.L. 1, No. 1 (Act 1), 77 P.S. 

§513(8)(i). Section 306(c)(8)(i) provides:

For permanent loss of hearing which is medically established as an occupational 

hearing loss caused by long-term exposure to hazardous occupational noise, the 

percentage of impairment shall be calculated by using the binaural formula 

provided in the Impairment Guides.

77 P.S. §513(8)(i). Section 105.5 of the Act, also added by Act 1, provides that “[t]he term 

‘Impairment Guides,’ as used in this act, means the American Medical Association’s Guides to the 

Evaluation of Permanent Impairment, Fourth Edition (June 1993).” 77 P.S. §25.5.
4

back to 1991 and believed that the 40 years of noise exposure at Employer has 

contributed significantly to Claimant’s hearing loss. Given Claimant’s history of 

occupational noise exposure over a long period of time, Dr. Carroll suspected

Claimant’s hearing loss was caused by this exposure. 

In response, Employer presented the deposition testimony of Douglas 

Chen, M.D., who is board certified in otolaryngology and performed an independent 

medical evaluation (IME) of Claimant on September 26, 2019, which included 

taking Claimant’s history. In addition, Dr. Chen reviewed Claimant’s July 24, 2019,

testimony; records from Employer; a noise dosimetry test from Building 10 from 

2004 or 2005; the medical report of Dr. Carroll from July 15, 2019; and multiple 

audiograms for Claimant dating back to 1977. Dr. Chen’s audiogram of Claimant

revealed that Claimant’s hearing impairment was calculated at 16.875% in the left 

ear and 18.75% in the right ear, for a binaural impairment of 17.185%, which was 

close to Dr. Carroll’s audiogram results. Dr. Chen opined within a reasonable degree 

of medical certainty that Claimant has bilateral sensorineural hearing loss, the most 

common form of hearing loss. Dr. Chen explained that “[h]ereditary causes are 

actually one of the most frequent causes of hearing loss, and it turns out age-related 

hearing losses are hereditarily or genetically driven.” R.R. 116a. Thus, some people 

are more prone than others to age-related hearing loss due to their genetic 

predisposition. Moreover, the acceleration of Claimant’s hearing loss in the last 

three to five years of employment, when he was exposed to less occupational noise,

was not consistent with causation by occupational noise exposure. 

Dr. Chen opined, within a reasonable degree of medical certainty, that 

Claimant “has multiple causes for his hearing loss, but the substantial portion of his 

hearing loss and hearing impairment is not related to occupational noise while 
5

working [for Employer].” R.R. 117a. Dr. Chen based his opinion on an American 

College of Occupational Medicine paper3 on noise-induced hearing loss, which 

explained that one of the defining features of such loss “is that the substantial portion 

of an occupational noise hearing loss occurs during the first 10 to 15 years of 

exposure and thereafter slows.” Id. This happens because “the ear basically is more 

sensitive to noise early on, and as the damage occurs, it becomes less sensitive to 

noise.” Id. After the initial 10- to 15-year period, if the rate of hearing loss does not

slow down, or if it accelerates, “then other factors need to be considered, and age is 

frequently a very common problem, which can be superimposed on other hearing 

losses, such as noise.” R.R. 118a. In Claimant’s case, his hearing loss started to 

accelerate after 20 or 30 years of noise exposure, which is consistent with Claimant’s 

subjective impression that his hearing loss became more significant in the last 3 to 5 

years. Id. Dr. Chen opined within a reasonable degree of medical certainty that 

Claimant has hearing loss and impairment of less than 10% due to occupational noise 

exposure while working for Employer. Id. 

By decision dated July 27, 2020, the WCJ found that Claimant did not 

suffer occupationally induced hearing loss. WCJ Decision, 7/27/2020, Finding of 

Fact (F.F.) No. 13. In so finding, the WCJ credited Dr. Chen’s testimony that

Claimant’s hearing loss was not occupationally induced because it developed in the 

latter part of his 40-year career with Employer. Id. Dr. Chen explained that most 

occupationally induced hearing loss occurs within the first 10 to 15 years of 

exposure. Claimant was exposed to the most noise in the first 27 years of his 

employment, but he did not develop hearing loss until later in his career. 

3 Dr. Chen stated that the paper is “very widely accepted.” R.R. 117a. 
6

Accordingly, Claimant’s hearing loss was not causally related to noise exposure at 

work.

The WCJ also found Dr. Chen’s opinions more credible than the 

opinions of Dr. Dugan and Dr. Carroll, explaining:

Dr. Carroll opined that [] Claimant’s work audiograms show that 

after 1991[,] [] Claimant had a progression of hearing loss to the 

point where he is at today. Dr. Carroll disagreed that age was a 

significant factor in Claimant’s hearing loss. Dr. Carroll opined 

that [] Claimant’s 40 years of exposure to noise at [Employer] 

significantly contributed to his hearing loss. Dr. [Dugan] also 

opined [that] Claimant’s hearing loss was related to his 40 years 

of exposure to noise at [Employer]. Dr. Carroll and Dr. [Dugan] 

did not address the fact that [] Claimant’s hearing loss did not 

progress until the latter part of his 40-year career at [Employer]. 

Dr. Carroll did not reasonably explain why [] Claimant’s hearing 

loss did not occur in his first 20 years of employment and 

exposure to noise but rather happened at the latter part of his 40-

year career. In comparing the opinions of Dr. Chen with those 

of Dr. Carroll and Dr. [Dugan], this [WCJ] finds Dr. Chen’s 

opinion to be more credible. 

WCJ Decision, 7/27/2020, F.F. No. 13. Based on the above findings, the WCJ 

concluded that Claimant did not meet his burden of proving that his binaural hearing 

loss was caused by hazardous occupational noise. Specifically, Claimant did not 

prove that his hearing loss was causally related to exposure to hazardous

occupational noise in the workplace or that more than 10% of his hearing loss was

attributable to exposure to such noise. WCJ Decision, 7/27/2020, Conclusions of 

Law (C.L.) No. 1, 2. The WCJ denied Claimant’s claim petition. 

Claimant appealed, and the Board affirmed the WCJ’s determination

that Claimant had not established that his hearing loss was causally related to noise 

exposure at work. Specifically, the Board rejected Claimant’s argument “that Dr. 
7

Chen attributed an unstated percentage of Claimant’s hearing loss to presbycusis and 

improperly deducted that unstated percentage from the known binaural hearing loss”

of 17% to reach the conclusion that Claimant’s work-related binaural hearing 

impairment was not in excess of 10%, the statutory minimum. Board Adjudication, 

7/7/2021, at 7-8. The Board also determined that the WCJ did not err by declining 

to award litigation costs and counsel fees because Claimant did not prevail. Board 

Adjudication, 7/7/2021, at 7 n.3. Claimant then petitioned for this Court’s review. 

On appeal,

4 Claimant raises three issues. First, Claimant contends that 

the WCJ erred in determining that Dr. Chen’s testimony established that a significant 

portion of Claimant’s hearing loss was not work related and due to age-related 

factors. Second, Claimant argues that Employer failed to assert an affirmative 

defense to the claim petition because its expert agreed that multiple factors 

contributed to Claimant’s binaural hearing loss. Third, Claimant asserts that

Employer had no reasonable basis to deny his claim, which entitles Claimant to 

reimbursement of attorney fees.

In his first issue, Claimant contends that Dr. Chen’s opinion regarding 

hearing loss is contrary to our Supreme Court’s ruling in LTV Steel Company, Inc. 

v. Workers’ Compensation Appeal Board (Mozena), 754 A.2d 666 (Pa. 2000), that

the General Assembly did not intend to allow an age-related deduction from the total 

percentage of hearing impairment. Claimant argues that by crediting Dr. Chen’s 

opinion, the WCJ has effectively allowed an age-related deduction from Claimant’s 

binaural hearing loss. 

4 This Court’s review determines whether an error of law was committed, whether necessary 

findings of fact are supported by substantial evidence, or whether constitutional rights were 

violated. Vinglinsky v. Workmen’s Compensation Appeal Board (Penn Installation), 589 A.2d 

291, 293 (Pa. Cmwlth. 1991). 
8

Employer responds that there is no presumption that Claimant’s 

binaural hearing loss in excess of 10% was due to his exposure to occupational noise. 

Rather, Claimant had the burden to establish a causal relationship between his 

hearing loss and his occupational noise exposure. Here, the WCJ accepted 

Employer’s medical evidence, and rejected Claimant’s medical evidence, and the 

WCJ is the arbiter of fact and witness credibility. Simply, Claimant did not prove 

binaural hearing loss in excess of 10% as a result of his exposure to occupational 

noise in the workplace. 

We begin with a review of the law. Section 306(c)(8)(i) of the Act

provides: 

For permanent loss of hearing which is medically established as 

an occupational hearing loss caused by long-term exposure to 

hazardous occupational noise, the percentage of impairment 

shall be calculated by using the binaural formula provided in the 

[American Medical Association’s Guides to the Evaluation of 

Permanent Impairment (]Impairment Guides[)].

77 P.S. §513(8)(i). To meet his burden, a claimant must prove that his hearing loss 

was caused by his employment. Rockwell International v. Workers’ Compensation 

Appeal Board (Sutton), 736 A.2d 742, 744-45 (Pa. Cmwlth. 1999). If a causal 

relationship is not obvious, unequivocal medical evidence must be offered. 

Jeannette District Memorial Hospital v. Workmen’s Compensation Appeal Board 

(Mesich), 668 A.2d 249, 251 (Pa. Cmwlth. 1995).

In reviewing a substantial evidence5challenge, we “consider the 

evidence as a whole, view the evidence in a light most favorable to the party [that] 

5

“Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate 

to support a conclusion.” City of Philadelphia v. Workers’ Compensation Appeal Board (Kriebel), 

29 A.3d 762, 769 (Pa. 2011).
9

prevailed before the WCJ, and draw all reasonable inferences which are deducible 

from the evidence in” that party’s favor. Frog, Switch & Manufacturing Company

v. Workers’ Compensation Appeal Board (Johnson), 106 A.3d 202, 206 (Pa. 

Cmwlth. 2014) (en banc) (internal quotation marks omitted). Where both parties 

present evidence, it does not matter if there is evidence that supports a contrary 

finding; the pertinent question is whether there is evidence that supports the findings 

that were made. McCabe v. Workers’ Compensation Appeal Board (Department of 

Revenue), 806 A.2d 512, 515 (Pa. Cmwlth. 2002). “The WCJ is the ultimate fact 

finder and has complete authority for making all credibility” and evidentiary weight 

determinations. Rife v. Workers’ Compensation Appeal Board (Whitetail Ski 

Company), 812 A.2d 750, 755 (Pa. Cmwlth. 2002). It is well settled that a “WCJ 

may reject the testimony of any witness in whole or in part, even if that testimony is 

uncontradicted.” Hoffmaster v. Workers’ Compensation Appeal Board (Senco 

Products, Inc.), 721 A.2d 1152, 1156 (Pa. Cmwlth. 1998). In the rare instances 

where we review a credibility determination, “[w]e must view the reasoning as a 

whole and overturn the credibility determination only if it is arbitrary and capricious 

or so fundamentally dependent on a misapprehension of material facts, or so 

otherwise flawed, as to render it irrational.” Casne v. Workers’ Compensation

Appeal Board (STAT Couriers, Inc.), 962 A.2d 14, 19 (Pa. Cmwlth. 2008).

Here, Claimant offered evidence of his work-related hearing loss in the 

form of his own testimony and reports from Dr. Carroll and Dr. Dugan. Both of 

Claimant’s doctors offered opinions that Claimant’s hearing loss was caused by 

exposure to hazardous occupational noise during Claimant’s tenure with Employer. 

While the WCJ did not entirely reject Claimant’s doctors’ reports and opinions, she 

simply did not find them as credible as Dr. Chen on the question of causation for 
10

Claimant’s hearing loss. Employer’s expert, Dr. Chen, explained that Claimant’s 

hearing loss was not occupationally induced because his hearing loss developed in 

the latter part of his career with Employer, which is atypical for a hearing loss caused 

by exposure to hazardous occupational noise. Neither Dr. Carroll nor Dr. Dugan 

addressed the fact that Claimant’s hearing loss did not progress until the latter part 

of his career, and, as such, the WCJ credited Dr. Chen’s explanation over the other 

doctors’ opinions. 

Contrary to Claimant’s argument that the WCJ essentially made an agerelated hearing loss deduction from Claimant’s total binaural hearing loss in 

contravention of LTV Steel Company, the WCJ focused on Dr. Chen’s testimony on

the progression of Claimant’s hearing loss in her findings of fact. Dr. Chen 

explained that exposure to hazardous occupational noise causes a hearing loss within 

the first 10 to 15 years of that exposure, but Claimant’s hearing loss did not appear 

until 27 years after Claimant was exposed to the most hazardous occupational noise 

while working in Building 5. Further, Claimant’s hearing loss accelerated in the last 

3 to 5 years of employment when his occupational noise exposure was reduced. The 

WCJ concluded that Claimant’s hearing loss was not caused by noise exposure at 

work but did not find an age-related hearing loss.

While Claimant did establish that he had binaural hearing loss, the WCJ 

rejected Claimant’s causation theory, thereby precluding Claimant from meeting his 

burden. The WCJ has exclusive power over questions of credibility and weight to 

assign the evidence. In short, the substantial evidence in the record supports the

WCJ’s findings of fact. Viewing the evidence in a light most favorable to the 
11

prevailing party and drawing all reasonable inferences which are deducible from the 

evidence in that party’s favor, this Court declines to disturb the WCJ’s findings.6

Accordingly, for all the above reasons, we affirm the Board’s 

adjudication. 

 ____________________________________________

 MARY HANNAH LEAVITT, President Judge Emerita

6 Because Claimant did not meet his burden of proving causation, we need not address his second 

issue, i.e., that Employer failed to present sufficient evidence of an affirmative defense to the claim 

petition pursuant to Section 306(c)(8)(x) of the Act, 77 P.S. §513(8)(x) (“Whether the employe 

has been exposed to hazardous occupational noise or has long-term exposure to such noise shall 

be affirmative defenses to a claim for occupational hearing loss and not a part of the claimant’s 

burden of proof in a claim.”). Moreover, because Claimant is not the prevailing party, no counsel 

fees for unreasonable contest or litigation costs can be awarded pursuant to Section 440(a) of the 

Act, added by Act of February 8, 1972, P.L. 25, 77 P.S. §996(a). Thus, his third issue is moot. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dennis Carlson, :

Petitioner :

:

v. : No. 793 C.D. 2021

: 

General Electric Company (Workers’ :

Compensation Appeal Board), :

Respondent :

O R D E R

AND NOW, this 28th day of June, 2022, the adjudication of the 

Workers’ Compensation Appeal Board, dated July 7, 2021, is hereby AFFIRMED.

 ____________________________________________

 MARY HANNAH LEAVITT, President Judge Emerita