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Bronico v. J.T. Baker Chemical Co.

Decided: March 27, 1986.

JOSEPH P. BRONICO, SR., PETITIONER-RESPONDENT,
v.
J.T. BAKER CHEMICAL COMPANY, RESPONDENT-APPELLANT



On appeal from the New Jersey Department of Labor, Division of Workers' Compensation.

Fritz, Brody and Gaynor. The opinion of the court was delivered by Gaynor, J.A.D.

Gaynor

In this appeal we are called upon to determine whether a petitioner seeking compensation for an occupational hearing loss must make a prima facie showing of exposure to hazardous noises in terms of the decibel levels set forth in the supplementary hearing loss legislation of 1979 (N.J.S.A. 34:15-35.10 et seq.).

Respondent appeals from a judgment awarding petitioner compensation for a noise-induced occupational hearing loss, contending the award was improperly entered because of petitioner's failure to present proofs as to the intensity level of the asserted hazardous noise. Alternatively, it claims the compensation awarded should not have been based upon the rate and method of computation prescribed in the new law. We disagree with both of these contentions and affirm the award.

Petitioner had been employed by respondent for some 27 years at the time of the compensation hearing in February 1983. During the period 1967-1982 he worked in the maintenance department. In January 1980 he was awarded compensation for a 95% occupational hearing loss and in July 1981 he filed a further claim petition alleging additional hearing loss resulting in the award now before us.

The evidence adduced by petitioner consisted of his own testimony, the opinion testimony of his examining otolaryngologist and a medical report pertaining to the claimed concomitant

psychiatric disability. Petitioner did not present any proof of the decibel levels of the noise which assertedly caused his hearing loss. Respondent introduced the results of surveys of noise exposure and measurements of sound levels conducted during November 1974, May 1982 and March 1983 in buildings where petitioner had worked indicating noise levels within permissible limits. Although these tests were conducted prior and subsequent to the period when petitioner allegedly sustained the hearing loss, it was represented by respondent's witnesses that the noise levels could be expected to remain constant over the years.

In his findings, the judge of compensation concluded that while respondent's surveys indicated the noise emanating from the individual machines was within acceptable limits the combined operating noises of the machines in the maintenance shops produced decibel levels in excess of the permissible limits. He further found that petitioner's required proximity to certain machinery caused him to be exposed to noises which were louder than was reflected by respondent's measurements. The exposure to these noises was considered by the judge to be significant enough to increase petitioner's loss of hearing from 95% to 100%. As the increased disability was deemed to be the result of continued exposure occurring after petitioner's 1980 award, the judge utilized the rates and compensation methods set forth under the supplementary Act.

Claims for compensation based on noise induced occupational hearing loss are now governed by N.J.S.A. 34:15-35.10 et seq. This supplementary legislation enacted in 1979, in conjunction with the amendment of the Workers' Compensation Act, was designed to provide guidelines for compensating employees so disabled and its purpose was

to encourage prevention of occupational hearing impairment insofar as possible and to provide proper compensation when it does occur. It simplifies and standardizes the method of determining the percent of hearing disability and increases the amount of compensation for substantial hearing losses, minimizing or excluding compensation to those with a lesser degree of hearing impairment. It should also make hearing loss of greater concern to management and labor.

[Joint Statement of the Senate Labor, Industry and Professions Committee and the Assembly Labor Committee to ...


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