Opinion
CLAIM NO. E303197
OPINION FILED MARCH 11, 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 with the respondent but that the claimant sustained a 0% permanent impairment to his hearing capacity as a result of that injury. The administrative law judge also found that the claimant is entitled to medical benefits associated with amplification devices.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. We also find that the claimant proved by a preponderance of the evidence that he sustained hearing loss causally related to his employment with the respondent, and we find that the claimant proved by a preponderance of the evidence that amplification devices are reasonably necessary for treatment of his compensable injury. Therefore, we find that the administrative law judge's decision in these regards must be affirmed. In addition, we find that the greater weight of the evidence in the record establishes that the claimant sustained a 12.2% permanent impairment to his hearing as a result of his compensable injury. Therefore, we find that the administrative law judge's decision in this regard must be reversed.
The claimant is a 63-year-old man who began work for the respondent on September 4, 1973, and was laid off on July 1, 1991, and ultimately retired on July 1, 1993. Before beginning work for the respondent, the claimant was employed as a millwright with Reynolds Metals from January 1957 to March 1972. For a little over a year, the claimant also worked for ITT General Corporation as a welder and pipe fitter. He was in the Army from 1954 to 1956.
The claimant testified that when he went to work for the respondent in September of 1973, he started as a maintenance mechanic and remained in that job classification until he was laid off in 1991. The claimant testified that some of the noise to which he was exposed was in the ball mill department (No. 225) and the hammer mill (No. 315) where air pumps were located. According to the claimant this area was so noisy that two individuals could not speak to one another. The claimant testified that this type of noise exposure continued throughout his tenure with the respondent.
The claimant's pre-employment audiogram on August 16, 1973, revealed hearing loss in the right ear from 3,000 — 8,000 Hz and in the left ear from 3,000 — 6,000 Hz. At that time the claimant said he had trouble hearing conversations when two people were talking at the same time. With regard to the claimant's exposure to non-work-related noise, the claimant testified that he does deer hunt with a .308 Winchester rifle. The claimant indicated that he does not have any power tools at home but does operate a riding lawn mower with a muffler.
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. Rhodes, 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 pre-employment audiogram performed on August 16, 1973. Periodic audiograms were performed up through December 17, 1993. Dr. Winston opined in a April 6, 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.
Dr. Orchik testified that the most significant feature that he could glean from the claimant's records and history was his work at ALCOA. Based on the information he had available, Dr. Orchik opined that the change in the claimant's hearing was most probably related to his work at ALCOA. Using the claimant's 1993 audiogram, Dr. Orchik opined that the claimant has sustained an 18.7% impairment to his hearing capacity under the AMA Guides formula as a result of his work at ALCOA, and Dr. Orchik opined that the claimant would benefit from amplification
After considering the testimony of the claimant, 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 proved by a preponderance of the evidence that he has sustained a work-related injury to his hearing for which amplification devises are reasonably necessary medical treatment.
In addition, we find that the preponderance of the evidence indicates that the claimant has sustained a permanent hearing impairment of 12.2% as a result of his work-related hearing loss injury. In reaching that decision, we note that Dr. Orchik opined that the claimant sustained a 18.7% permanent impairment to his hearing as a result of his noise exposure at ALCOA. However, our review of the record indicates that Dr. Orchik relied on the claimant's 1993 audiogram performed approximately 2 years after the claimant was laid off from the respondent on July 1, 1991, and we interpret Dr. Orchik's hearing testimony as indicating that an employee's noise-induced hearing impairment will stabilize when the employee is removed from the noise exposure (See Orchik testimony, T. 171). We, therefore, find that the claimant's work-related hearing impairment should properly have been calculated based on the claimant's June 28, 1991, audiogram which, by our calculation, indicates a permanent hearing impairment of 12.2%. In reaching our decision, we also note that the administrative law judge found that the claimant sustained a 0% impairment apparently based on the administrative law judge's comparison of the claimant's 1973 baseline audiogram and the claimant's 1993 audiogram performed by Dr. Winston. However, we note that the administrative law judge did not state any mathematical basis for her conclusion that the claimant failed to show that he sustained a permanent impairment to his hearing capacity as a result of his employment. In addition, our calculations indicate that the claimant had sustained a 0% impairment to his hearing capacity under the AMA Guides formula at the time of his 1973 baseline audiogram but that the claimant had sustained a 12.2% impairment to his hearing capacity at the time of his June 28, 1991, audiogram. Therefore, taking the difference between these two audiograms, we find that the claimant sustained a 12.2% impairment to his hearing capacity during the course of his employment with the respondent and we find that the greater weight of the evidence indicates that this 12.2% impairment to the claimant's hearing capacity is causally related to his employment with the respondent.
In reaching our decision, we also affirm the administrative law judge's determination that the appropriate formula for calculating hearing impairment (previously applied by the Arkansas Worker's Compensation Commission) is the formula in the AMA Guides to the Evaluation of Permanent Impairment. The claimant advocates adoption of an alternative formula described by Dr. Orchik as the "Oregon formula". However, we note that the AMA Guides formula was adapted from information provided by the American Academy of Otolaryngology, and we frankly are unclear as to who developed the "Oregon formula" or which professional medical associations, if any, endorse that formula. We therefore decline to abandon theAMA Guides formula for the "Oregon formula" based on the record and evidence before us.
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. We also find that the claimant proved by a preponderance of the evidence that he sustained hearing loss causally related to his employment with the respondent, and we find that the claimant proved by a preponderance of the evidence that amplification devices are reasonably necessary for treatment of his compensable injury. Therefore, we find that the administrative law judge's decision in these regards must be affirmed. In addition, we find that the greater weight of the evidence in the record establishes that the claimant sustained a 12.2% permanent impairment to his hearing as a result of his compensable injury. Therefore, we find that the administrative law judge's decision in this regard must be reversed.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the administrative law judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996). For prevailing on this appeal before the Full Commission, claimant's attorney is hereby awarded an additional 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
[31] I respectfully dissent from the majority's opinion finding that this claim is not barred by the statute of limitations. As I have stated throughout my dissents in this group of hearing loss claims, hearing loss simply does not fit into the mold of a typical workers' compensation claim with a physical injury. Slight hearing loss does not rise to a disability; therefore it is patently unfair to require disability for statute of limitation purposes. The General Assembly did not intend to create a class of claims exempt from the statute of limitations. Accordingly, for those reasons expressed in my dissent in Revies L. Stacey v. ALCOA, Full Commission Opinion filed March __, 1998, ( E303220) as well as the remainder of the hearing loss claims, I must respectfully dissent.MIKE WILSON, Commissioner