Opinion
CLAIM NO. E303999
OPINION FILED JULY 22, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE SILAS H. BREWER, Attorney at Law, Little Rock, Arkansas.
Respondent represented by the HONORABLE MICHAEL J. DENNIS, Attorney at Law, Pine Bluff, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondent appeals an opinion and order filed by the administrative law judge on August 20, 1996. In that opinion and order, the administrative law judge found that this claim is not barred by the statute of limitations. After conducting a de novo review of the entire record, we find that the statute of limitations does not bar this claim. Therefore, we find that the administrative law judge's decision must be affirmed.
The claimant became employed by the respondent on December 7, 1941, and continued to work for the respondent except for a period military service between 1943 and 1945 until his retirement on August 1, 1984.
The claimant testified that the respondent began to administer hearing tests in the mid to late 1970's. The claimant testified that he was made aware of his test results by the nurse that administered the tests, and the claimant testified that he was aware that he was having difficulties with his hearing prior to his retirement.
On March 9, 1993, the claimant filed the present claim for workers' compensation benefits related to an alleged work-related hearing loss. The sole issue presented in the present claim is whether the claimant's claim for workers' compensation benefits is barred by the provisions of Ark. Code Ann. § 11-9-702(a)(1).
Since the claimant seeks workers' compensation benefits for an alleged work-related injury which manifested itself prior to July 1, 1993, this claim is governed by the provisions of the Arkansas Workers' Compensation Law as it existed prior to the amendments of Act 796 of 1993. In this regard, Ark. Code Ann. § 11-9-702(a)(1) (1987) provides in relevant part:
(a) TIME FOR FILING. (1) A claim for compensation for disability on account of an injury . . . shall be barred unless filed with the commission within two (2) years from the date of injury.
An obvious threshold question whenever the statute of limitations is at issue involves the determination of when, and if, the limitations period commenced to run. Our Courts have held on numerous occasions that the statute of limitations for workers' compensation claims does not commence to run until the injury causes an incapacity to earn the wages which the employee was receiving at the time of the accident and until the incapacity continues long enough to entitle him to benefits under Ark. Code Ann. § 11-9-501(a) (1987). See, e.g., Hall's Cleaners v. Wortham, 311 Ark. 103, 842 S.W.2d 7 (1992); Cornish Welding Shop v. Galbraith, 278 Ark. 185, 644 S.W.2d 926 (1983); Donaldson v. Calvert-McBride Printing Co., 217 Ark. 625, 232 S.W.2d 651 (1950); Arkansas Louisiana Gas Co. v. Grooms, 10 Ark. App. 92, 661 S.W.2d 433 (1983); Shepherd v. Easterling Construction Company, 7 Ark. App. 192, 646 S.W.2d 37 (1983). In this regard, the Arkansas Supreme Court has characterized Arkansas as a "compensable injury" state because the statute of limitations does not necessarily begin running on the date of the accident. Wortham, supra. Instead, the limitations period does not begin running until the injury becomes compensable. Id. In Wortham, the Court explained this as follows:
In Donaldson, this court held that, for purposes of commencing the statute of limitations under § 11-9-702(a)(1), the word "injury" is to be construed as "compensable injury," and that an injury does not become "compensable" until (1) the injury develops or becomes apparent and (2) claimant suffers a loss in earnings on account of the injury. Donaldson, 217 Ark. at 629-631, 232 S.W.2d at 654. Thus, the statute of limitations does not begin to run until both elements of the rule are met. Therefore, Arkansas is technically a "compensable injury" state. . . .
Moreover, after considering the testimony of the claimant and all other evidence properly in the record, we find that there is no evidence in the record suggesting that the claimant ever suffered any loss of earnings or any loss of earning capacity attributable to his hearing condition prior to March 9, 1993, when the claimant filed his claim for workers' compensation benefits. Therefore, we find that the statute of limitations does not bar this claim. Consequently, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the decision of the administrative law judge must be, and hereby is, affirmed. This case is hereby remanded to the administrative law judge for a determination as to the extent of benefits to which claimant may be entitled.
For prevailing on this appeal before the Full Commission, claimant's attorney is hereby awarded an attorney's fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
DISSENTING OPINION
I must respectfully dissent from the majority opinion finding that this claim is not barred by the Statute of Limitations. Although the law with regard to physical injuries for Pre-Act 796 cases (finding that the Statute of Limitations for workers' compensation claims does not commence to run until the injury causes an incapacity to earn wages sufficient to entitle the claimant to benefits) is well settled, I cannot find that this disability requirement for the Statute of Limitations applies to gradual hearing loss cases which are not physical injuries. See,Hall's Cleaners v. Worthen, 311 Ark. 103, 842 S.W.2d 7 (1992). The Court in Hall's Cleaners clearly envisioned a workers' compensation scenario where claimant received an injury and eventually would have to miss work as a result of that injury. Even for "medical only" claims, it is conceivable that an injury would create a potential for an employee to miss work. Given the potential for disability, the Statute of Limitations would not begin to run until a claimant has missed sufficient enough time from work to be entitled to disability benefits. However, these scenarios where a potential for disability arises is clearly distinguishable from a gradual hearing loss occupational injury. For a gradual hearing loss there is no potential period of disability. A gradual hearing loss will never result in an active medical treatment or a period of disability where one will enter a healing period and have a potential entitlement to temporary total disability benefits. There is no surgery which can correct a gradual hearing loss nor does a gradual hearing loss create a total incapacity to earn wages. By applying the holding in Hall's Cleaners to gradual onset hearing loss cases, a class of injuries is created for which no Statute of Limitations period will ever commence to run. The requirement for a period of temporary total disability essentially eliminates the Statute of Limitations defense for all gradual hearing loss cases. Accordingly, I cannot find that this was the intent of the Supreme Court in the Hall's Cleaners case. Therefore, I find that Hall's Cleaners does not control the Statute of Limitations period for gradual hearing loss cases, since there is never a conceivable period of disability. (I distinguish gradual hearing loss from traumatic hearing loss since immediate medical attention may be required for traumatic hearing loss so as to allow a claimant to enter a healing period and thus creating a potential for disability.)
Since I find that Hall's Cleaners does not control this case, I find that the Statute of Limitations has run and that this claim is barred. Therefore, I respectfully dissent from the majority opinion.
MIKE WILSON, Commissioner