Opinion
CLAIM NO. E303101
OPINION FILED FEBRUARY 6, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE PHILIP E. KAPLAN and the HONORABLE SILAS H. BREWER, JR., Attorneys at Law, Little Rock, Arkansas.
Respondent represented by the HONORABLE PHILLIP P. CARROLL, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
OPINION AND ORDER
[2] The respondent appeals an opinion and order filed by the administrative law judge on July 22, 1996. In that opinion and order, the administrative law judge found that the present claim is not barred by the statute of limitations. In addition, the administrative law judge found that the claimant proved by a preponderance of the evidence that he sustained hearing loss causally related to his employment.After conducting a de novo review of the entire record, we find that the respondent failed to prove by a preponderance of the evidence that the present claim is barred by the statute of limitations. Therefore, we find that the administrative law judge's decision in this regard must be affirmed. We also find that the claimant failed to prove by a preponderance of the evidence that he sustained hearing loss causally related to his employment with the respondent. Therefore, we find that the administrative law judge's decision in this regard must be reversed.
The claimant is a 61-year-old man who began work for the respondent on August 23, 1972, and retired on June 1, 1990. The claimant did not appear at the hearing and did not testify, therefore, his claim will be considered on the record alone. Before beginning work for the respondent, the claimant worked for a furniture company and for a furniture manufacturer. According to the claimant, he was present in December of 1978 when a .20 gauge shotgun was shot for target practice; however, he wore ear protection. In addition, the claimant testified that he does have a cordless drill and a Skil saw, but that he wears hearing protection when using these. The claimant's first audiogram was performed on August 22, 1972, which revealed a hearing loss at 3,000 Hz and 4,000 Hz in the right ear and a very slight earing loss at 6,000 Hz in the left ear. The claimant worked for the respondent for 18 years in numerous capacities.
On March 2, 1993, the claimant filed the present claim for workers' compensation benefits related to an alleged work-related hearing loss. The respondent asserts, in part, that the present claim for workers' compensation benefits is barred by the provisions of Ark. Code Ann. § 11-9-702(a)(1) (1987).
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. . . .
In the present claim, the respondent acknowledges on appeal 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 2, 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, we find that the decision of the administrative law judge in this regard is correct and must be affirmed.
With regard to the noise levels and hearing protection at the respondent's facility, Ms. Irene Schiefler testified that she took a transfer to the Bauxite facility from Comfort, Texas in 1984. Ms. Schiefler testified that she has held the positions of safety supervisor, safety manager, safety and industrial hygiene manager, and is now the environmental health and safety manager. Ms. Schiefler testified that when she arrived in 1984, the Bauxite facility had all of the components of a standard hearing conservation program present, including audiometer testing, noise surveys, dosimetry exposure studies, training programs, noise control engineering solutions, and administrative controls to try to reduce noise exposure at the facility.
Ms. Schiefler testified that on April 1, 1989, ALCOA lowered the permissible unprotected noise exposure level from 90 decibels to 85 decibels. With regard to the availability of hearing protection prior to her employment, Ms. Schiefler testified that she had reviewed a 1960 letter which suggested that ear muffs may have been in some facility buildings (ball mill buildings) as early as 1957. A December, 1967 memorandum offered into evidence indicates maximum daily exposure times for unprotected workers in certain areas and advises that hearing protection must be worn by anyone intending to work in the designated areas in excess of the listed maximum permissible unprotected daily exposure time. The 1967 memorandum indicated that it was ALCOA's intention to intensify its program of testing employees for hearing losses, and that employees working in the designated areas would receive annual audiograms. A memorandum dated April 10, 1975 indicated that all persons scaling the digesters, flash tanks, blow off tanks or other vessels would be required to wear ear plugs and ear muffs effective immediately. Ms. Schiefler testified that ALCOA ceased scaling precipitators because of technology changes in 1985 and stop scaling digestors for the most part in 1990.
A December 6, 1988, letter from Dr. H. Dean Belk, at the ALCOA Pittsburgh office to Ronald Kuerner at the Arkansas Operators advised the following:
In recent years plant personnel in Health and Safety have implemented additional measures at Arkansas Operations to prevent high-noise-induced injury to employees. Unfortunately to date these efforts have not produced adequate hearing protection for all employees at risk, and I know you share concern with me about this. The purpose of this memorandum is to bring this matter to your attention so that necessary managerial and supervisory support for hearing conservation may be assured.
Attached for your information are summarized results of audiometric testing by ALCOA plants in 1987 and results from 1986 (Attachment 1). The percentage of employees exhibiting injury to hearing varied widely among plants. At some plants testing demonstrated an undesirable trend with high percentages of high-noise-exposed employees demonstrating injury to hearing (permanent hearing change) in 1987. Unfortunately Arkansas fell into the group of plants having the worst experience.
Changes in hearing related to age contribute to some of the loss of hearing we observe on testing, but from the attached bar graph (Attachment 2) it is evident that high noise exposure probably is a predominant cause for hearing loss. [Emphasis Added]
In response, Ms. Schiefler prepared a memorandum to Mr. Kuerner dated December 28, 1988. In that memorandum, Ms. Schiefler noted with regard to Dr. Belk's data from 1986-1987 that "this was the first year that the plant was able to get sufficient retesting (follow-up visits) to accurately determine the scope of the problem." Ms. Schiefler's 1988 memo indicated that the facility was in the process of identifying those employees with permanent shifts (i.e., permanent hearing loss) which were attributable to noise and those employees which had permanent shifts for other reasons. The memo goes on to state that area noise surveys were currently being conducted throughout the plant, and that a Noise Control Engineering Seminar was planned for plant engineers.
In addition, the memo indicated that baseline noise surveys had been completed for all production classifications, that new computerized audiometric testing equipment would soon be installed in the dispensary, and that future audiograms would be performed at the beginning of shifts (to avoid performing audiograms after short-term exposure to noise during a shift which can cause invalid hearing loss test results.) Finally, the memorandum indicated that employees would be advised in writing to wear hearing protection in listed high noise areas, and that employees would be advised that the hearing protection rule would be strictly enforced. However, at the hearing, Ms. Schiefler acknowledged that her review of ALCOA's files (in preparation for the hearing) only indicated one documented disciplinary letter for failure to wear required hearing protection, and that the disciplined employee was a member of management.
With regard to documented areas with high noise levels, claimant's exhibit #35 lists approximately 130 locations throughout the ALCOA facility with noise levels greater than 85 decibels based on area surveys conducted between 1975 and 1989, with the highest indicated noise level being 114 decibels.
Dr. Thomas Rimmer, a Ph.D. industrial hygienist, testified on behalf of the claimant that he had reviewed ALCOA's records, and he concluded that ALCOA has had, and continues to have, noise levels high enough to need a hearing conservation program and high enough to cause hearing loss. Dr. Rimmer concluded that the major deficiencies in ALCOA's hearing conservation program are in training, enforcement, and effectiveness of the hearing protection provided. In addition, Dr. Rimmer testified that none of the records he reviewed indicated that ALCOA had attempted limiting overtime as an administrative control to limit noise exposure, and that, despite implementing some engineering controls, the noise monitoring data does not seem to indicate a significant reduction in the number of people exposed or in the levels that they have been exposed to generally. Dr. Rimmer also testified that unprotected noise exposure at 114 decibels, the level measured for descaling, could cause rapid and permanent hearing loss, although continuous exposure below 80 decibels will not contribute to hearing loss (the decibel scale is non-linear and an increase of three decibel units corresponds to a doubling of the loudness of the sound measured).
Dr. Daniel Orchik, the chief of audiology at the Shay Clinic in Memphis, testified that there are several key factors to consider in determining whether any particular individual has sustained an occupational noise induced hearing loss. According to Dr. Orchik, these factors include whether the work environment produced a noise level potentially hazardous to hearing, the level and duration of noise exposure, whether audiometric test results are consistent with hearing loss caused by hazardous noise exposure, general information on the individual's otologic health, medication, potential disease processes, family history, and non-work exposure to hazardous noise.
Dr. Orchik testified that he reviewed ALCOA's medical and audiometric data and histories, he conducted interviews with most of the 25 claimants in the present group of claims. Dr. Orchik did not interview Mr. Hargrove, but did review his records.
Dr. Orchik testified that noise induced hearing loss is characterized by maximum hearing loss in the region of 3000 — 6000 Hz. According to Dr. Orchik, in the very earliest stages of noise induced hearing loss, testing will indicate a dip or notch in the 3000 — 6000 Hz region so that a plotted audiogram would look like a left-handed check mark. With prolonged exposure, the audiometric pattern tends to broaden and affect frequencies below 3000 Hz and also with less recovery at the higher frequencies.
Dr. Michael Winston testified that he reviewed audiograms for approximately 131 ALCOA employees. Dr. Winston testified that, in addition to reviewing audiograms, he also reviewed available history information, exposure levels, job descriptions, and any other information that might be helpful in determining whether the individual's hearing loss could be classified as primarily occupational-induced hearing loss or loss due to some other cause. Dr. Winston did not testify specifically regarding any of the 25 claimants in the present group of claims, although Dr. Winston testified that he did formulate an opinion regarding whether the 131 employees reviewed had sustained occupational noise induced hearing loss.
The claimant in the present claim had a baseline audiogram performed on August 22, 1972. Periodic audiograms were performed up through December 17, 1993.
After considering the testimony of Ms. Schiefler, Dr. Rimmer, Dr. Winston, Dr. Orchik, the claimant's audiograms and the other documentary evidence, and all other evidence properly in the record, we find that the claimant failed to prove by a preponderance of the evidence that he has sustained a work-related injury to his hearing that is causally related to his employment with the respondent.
In reaching our decision, we note that Dr. Winston opined in a March 29, 1994 report that the claimant's December 17, 1993, examination revealed moderate to severe high frequency sensorineural hearing loss bilaterally. He also opined that the claimant was a candidate for binaural amplification. In an April 17, 1992 report, Dr. Winston opined that the claimant's hearing loss pattern appears to be noise induced and is probably job related.
However, in assessing the weight to be accorded Dr. Winston's report, we also note that Dr. Orchik (who testified on behalf of the claimant) testified that Mr. Hargrove has experienced an asymetrical hearing loss (right worse than left), and that Dr. Orchik would require better information than the information he received on the characteristics of the claimant's noise exposure in order to form an opinion on the etiology of the claimant's hearing loss. Based on the information available, Dr. Orchik testified that he could only say that it was "possible" that the claimant's loss "might" be work related. In reaching our decision, we also note that the claimant's asymmetrical (right side) hearing loss was present (to a lesser extent) on his 1972 pre-employment audiogram. In addition, we note that the claimant reported during audiological testing in 1981 that he had experienced a little ringing in his ears at all times for the past 15 years, i.e., for approximately 6 years prior to his employment with the respondent.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the respondent failed to prove by a preponderance of the evidence that the present claim is barred by the statute of limitations. Consequently, we find that the administrative law judge's decision in this regard must be affirmed. We also find that the claimant failed to prove by a preponderance of the evidence that he sustained hearing loss causally related to his employment with the respondent. Therefore, we find that the administrative law judge's decision in this regard must be reversed.
IT IS SO ORDERED.
CONCURRING AND DISSENTING OPINION
[27] While I concur with the finding in the principal opinion that this claim is not barred by the statute of limitations, I must respectfully dissent from the finding that claimant failed to prove by a preponderance of the evidence that he sustained hearing loss causally related to his employment. Dr. Winston opined that claimant's hearing loss was probably work-related. Additionally, although Dr. Orchik used the word "possible" when rendering his opinion, medical opinions couched in terms of "possibilities" will not necessarily preclude a finding that a causal connection exist for any injury occurring prior to the effective of Act 796 of 1993. Pittman v. Wygal Trucking Plant, 16 Ark. App. 232, 700 S.W.2d 59 (1985). Therefore, I find that claimant has met his burden of proof and accordingly the opinion of the Administrative Law Judge should be affirmed.PAT WEST HUMPHREY, Commissioner