Opinion
CLAIM NO. E303205
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 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 as modified.
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 and that the claimant is entitled to benefits associated with a 47% permanent impairment rating. 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 decision of the administrative law judge must be affirmed as modified.The claimant is a 65-year-old man who began work for the respondent on June 20, 1953, and retired on June 1, 1990. Before beginning work for the respondent, the claimant worked at a furniture manufacturing company, farmed some, worked for Standard Asbestos Insulation Company, and served in the Navy from October 1950 to June 1952. The claimant's first audiogram while employed by the respondent was performed on February 13, 1958, some 5 years after he began working for the respondent. The claimant testified that during those first 5 years he worked in noisy areas of the plant including the Sinter Department, where he was exposed to the noise blasts of an .08 gauge shotgun used to dislodge scaled materials from the inside of vessels. The claimant testified that the Sinter Department stopped using the .08 shotgun to dislodge fusion from the kilns sometime in the 1980s. According to the claimant, the only form of hearing protection available for a significant period of time was rolled up cotton wads and earplugs did not become available until approximately 2 to 4 years later. With regard to non-work-related noise exposure, the claimant testified that he has not hunted since 1955 or 1956 and that he previously hunted with a .12 gauge shotgun. According to the claimant, he does not have a home workshop but does use a power 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 approximately 19 of the 25 claimants in the present group of claims (including Mr. Shepard), and he received a copy of answers to interrogatories prepared for approximately 23 of the 25 claimants.
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 on February 13, 1958. Periodic audiograms were performed up through December 16, 1993. Dr. Winston opined in an April 6, 1994 report that the claimant's December 16, 1993, examination revealed bilateral sensorineural hearing loss that is mild to moderate for the frequencies of 250 — 1,000 Hz, and severe to profound for the frequencies of 1,500 — 8,000 Hz. He also opined that the claimant was a good candidate for binaural amplification.
Dr. Orchik testified that the claimant's binaural hearing impairment using the AMA Guide was 47% and it was his opinion that the claimant's hearing loss was related to his employment with the respondent. He also 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 devices are reasonably necessary medical treatment.
In addition, we find that the preponderance of the evidence indicates that the claimant has sustained a 43.4% impairment to his hearing as a result of his work-related injury. In reaching that decision, we note that Dr. Orchik opined that all of the claimant's 47% hearing impairment indicated by Dr. Winston's December 8, 1993, audiogram was causally related to his employment.
However, we also note that the claimant retired from employment with the respondent on June 1, 1990, and we note that the claimant's exit audiogram performed on May 31, 1990, indicates a 43.4% hearing impairment. To the extent that the claimant's impairment increased after June 1, 1990, we interpret Dr. Orchik's somewhat evasive testimony on this issue as indicating that an employee's work-related hearing impairment will stabilize when the employee is removed from noise exposure (See Orchik testimony, T. 171), and we note that neither party presented any medical or opinion evidence in addition to Dr. Orchik's vague statement on whether noise-induced hearing loss may cause additional impairment/loss after the employee is removed from noise exposure. Consequently, based on our interpretation of Dr. Orchik's testimony on this crucial issue, we find that the claimant has failed to establish that any additional hearing impairment that he sustained after June 1, 1990, was causally related to his employment.
In reaching our decision, we note that the administrative law judge found that the appropriate formula for calculating hearing impairment is the formula contained in the AMA Guides to the Evaluation of Permanent Impairment, (adapted from information provided by the American Academy of Otolaryngology), and we note that the claimant did not appeal the administrative law judge's decision. After conducting our de novo review of the entire record, we find that the administrative law judge's decision in this regard is correct and is therefore affirmed as to the proper hearing loss impairment formula to be applied by the Arkansas Workers' Compensation Commission.
In reaching our decision, we also note that the respondent asserts on appeal that the claimant's hearing loss has been caused in part by presbycusis (an age-related process) and that the claimant has been exposed to non-work related noise adequate to cause all or part of the claimant's noise induced hearing loss. In assessing these arguments, we point out that the Guides formula incorporates a 25 decibel "fence" for "normal" hearing loss and does not specifically contain any other adjustment in the formula for potential age or non-work-related exposure. Nevertheless, this Commission has previously made such adjustments where indicated appropriate by expert medical testimony. See, Jakie Alexander v. International Paper Co., Full Workers' Compensation Commission, Feb. 3, 1995 (Claim No. E206791); Kenneth Colson v. International Paper Co., Full Workers' Compensation Commission (Claim No. E200043); Jimmy Haywood v. International Paper Co., Full Workers' Compensation Commission, Feb. 3, 1995 (Claim No. E206820); Hubert McCollum v. International Paper Co., Full Workers' Compensation Commission, Feb. 2, 1995 (Claim No. E201053).
However, in the present case Dr. Orchik, who gave candid and highly credible testimony, was the only testifying expert to review the claimant's audiograms in light of his age and history, and Dr. Orchik clearly did not propose any adjustment to the claimant's impairment rating based on age or any non-work exposure. Consequently, we see no basis in the medical evidence (or in the AMA impairment formula) in the present case upon which to make the adjustments requested by the respondents on appeal, except as noted above with regard to the claimant's additional hearing loss after his retirement.
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. In addition, we find that the greater weight of the evidence in the record establishes that the claimant sustained a 43.4% permanent impairment to his hearing as a result of his compensable injury. Therefore, we find that the administrative law judge's decision must be affirmed.
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 must respectfully dissent from the majority opinion finding that this claim is not barred by the statute of limitations. The majority relies upon case law requiring a wage loss disability before the statute of limitation can begin to run. See Hall's Cleaners v. Worthen, 311 Ark. 103, 832 S.W.2d 7 (1992). The error of applying such a holding to hearing loss claims comes to life in this claim. Claimant retired from respondent on June 1, 1990. Just months before his retirement, claimant signed an audiogram evidencing a 35.3% hearing impairment noting that he is "hearing impaired." Claimant did not file a claim for compensation until March of 1993, more than two years after claimant signing the audiogram making claimant aware of his hearing impairment, and more than two years after claimant's retirement and after claimant's hearing impairment leaped from 35 to over 47%. At no time did claimant ever suffer any wage loss due to his hearing impairment. This gradual noise-induced hearing loss will never create a "period of disability." To require disability or wage loss for all claims allows this type of claim to escape the statute of limitations. A retiree will never experience wage loss as he has no wages to lose. This type of claim is clearly distinguishable from typical workers' compensation claims which do produce or have the ability to produce wage loss. A claim which does not have the ability to produce wage loss should not be thrust into an application of the law which simply does not apply. Therefore, I respectfully dissent from the majority opinion.MIKE WILSON, Commissioner