Opinion
CLAIM NO. E402036
OPINION FILED OCTOBER 6, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE EDWARD O. MOODY, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE BETTY J. DEMORY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The claimant appeals an order filed by the administrative law judge on April 7, 1995. In that order, the administrative law judge found that the claimant's claim for silicosis or other respiratory disease is barred by the statute of limitations, and he dismissed the claim. After conducting a de novo review of the entire record, we find that the statute of limitations does bar this claim. Therefore, we find that the administrative law judge's decision must be affirmed.
The claimant was employed by the respondent employer from 1975 through early 1992. The respondent employer is a quarry, and the claimant was exposed to dust particles, including silica, during the entire course of his employment. He began to experience respiratory problems in January of 1991, and he sought treatment from Dr. William Mason, a pulmonary specialist, in June of 1991. He stopped working in February of 1992 as a result of these respiratory problems. On January 25, 1994, Dr. Mason diagnosed silicosis for the first time. On March 3, 1994, the claimant filed the claim currently under consideration.
The statute of limitations for occupational diseases is found at Ark. Code Ann. § 11-9-702 (a)(2) (Cumm. Supp. 1993), which provides the following:
A claim for compensation for disability on account of injury which is either an occupational disease or occupational infection shall be barred unless filed with the commission within two (2) years from the date of the last injurious exposure to the hazards of the disease or infection.
In the present claim, the claimant last worked for the respondent employer on February 18, 1992, so that would be the date of his last injurious exposure. Since his claim was not filed until March 3, 1994, a claim for any respiratory problems falling under this provision are clearly barred by the statute of limitations.
However, Ark. Code Ann. § 11-9-702 (a)(2)(A) (Cumm. Supp. 1993) establishes a special limitations period for silicosis. This statute provides the following:
However, a claim for compensation for disability on account of silicosis or asbestosis must be filed with the commission within one (1) year after the time of disablement, and the disablement must occur within three (3) years from the date of the last injurious exposure to the hazard of silicosis or asbestosis.
Disablement occurs when the claimant is unable to work and earn wages. Quality Excelsior Coal Co. v. Smith, 233 Ark. 67, 342 S.W.2d 480 (1961); Hamilton v. Jeffrey Stone Co., 6 Ark. App. 333, 641 S.W.2d 723 (1982). In the present claim, the claimant stopped working on February 18, 1992, because his respiratory problems prevented him from continuing to do so. Therefore, this is the date of disablement. Thus, since his claim was not filed within one year of this date, the claim for silicosis is barred by the statute of limitations.
We note that the claimant contends that the statute of limitations for silicosis should not begin to run until Dr. Mason diagnosed the condition on January 25, 1994. However, this contention has been expressly rejected by our Courts.Rannals v. Smokeless Coal Co., 229 Ark. 919, 319 S.W.2d 218 (1959); Hamilton, supra; see also, Smith, supra. InRannals, the claimant stopped working in February of 1953 due to respiratory problems. Some evidence indicated that he was aware that he had been diagnosed with silicosis prior to the time he stopped working, and some evidence indicated that he did not become aware of the diagnosis until October of 1954. He filed his claim in December of 1954. Nevertheless, the Court found that the claim was barred because it was not filed within one year of the date of disablement. In doing so, the Court favorably quoted the following statement made by the Circuit Court on appeal from the Commission:
Under our statute where a claim is filed for compensation for disability on account of silicosis, the claim must be filed within one year after the time of disablement therefrom. It is, therefore, not the disease of silicosis, for however long a period it might have existed, but the actual disablement which determines the period of limitation, or the date of the commencement of the running of the statute.
Notably, in concluding that the claimant's knowledge of the condition has no significance in determining when the limitations period begins to run, the Supreme Court recognized that this rule differs from the rule applicable to accidental injuries, where the statute does not begin to run until the disabling consequences of the accident become apparent or discoverable.
Moreover, in Hamilton, supra, the Court of Appeals rejected the argument that the limitations period should not begin to run until the silicosis is diagnosed. In that case, the claimant left the job where he was exposed to silica dust in 1969, but he continued working for another employer until December of 1977, when he had to stop working entirely because of respiratory problems. In November of 1980, his condition was first diagnosed as silicosis. However, the Court affirmed the Commission's finding that the claim was barred, and, in doing so, made the following statements:
Before remanding, we reject appellant's other contention that the statutes of limitation pertaining to silicosis run from the date of discovery or when the claimant knows or should reasonably be expected to know his injury. Our Supreme Court has held that in silicosis cases the statute commences to run at the time of disablement and not at the time the claimant learns he is suffering from the disease and that disablement does not occur until the employee is unable to work and earn his usual wages. [Citation omitted].
Thus, in the present claim, we reject the claimant's contention that the statute should not begin to run until there is a diagnosis of silicosis.
We recognize that the claimant also contends that this interpretation of the statute violates due process and equal protection. In this regard, although constitutional questions must be raised at the Commission level, those questions can only be decided by a court of law.International Paper Co. v. McBride, 12 Ark. App. 400, 678 S.W.2d 375 (1984). Therefore, we decline to address the constitutional questions. We do point out that the claimant in Hamilton, supra also contended that this interpretation of the statute violates equal protection and due process. In Hamilton v. Jeffrey Stone Co., 25 Ark. App. 66, 752 S.W.2d 288 (1988), the Court thoroughly examined these questions in light of the evidence presented in that case, and the Court rejected the claimant's arguments.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that this claim is barred by the statute of limitations. Therefore, we find that the administrative law judge's decision must be affirmed. This claim is denied and dismissed.
IT IS SO ORDERED.
Commissioner Humphrey dissents.
CONCURRING OPINION
I whole-heartedly concur with the majority's finding that after conducting a de novo review of the entire record, the statute of limitation bars this claim. However, I take this opportunity to point out that the constitutional arguments and the Americans With Disabilities' argument presented by claimant were raised for the first time on appeal. These issues should have been raised at the Administrative Law Judge level because they require exhaustive analysis. Cf. Shaw v. Commercial Refrigeration, 36 Ark. App. 76, 818 S.W.2d 589 (1991). Furthermore, the manner in which these issues were raised makes them virtually impossible to respond to. Claimant did not cite a specific provision of the Arkansas Constitutional, the United States Constitution or the Americans With Disabilities Act which he contends was violated.
ALLYN C. TATUM, Commissioner