Opinion
CLAIM NO. E303215
ORDER FILED FEBRUARY 7, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE SILAS H. BREWER, JR., Attorney at Law, Little Rock, Arkansas.
Respondent represented by the HONORABLE PHILLIP CARROLL, Attorney at Law, Little Rock, Arkansas.
ORDER
A majority of the Full Commission has previously found that the claimant has sustained a 5.9% work-related permanent hearing impairment, and that the statute of limitations does not bar any portion of the claimant's present claim for benefits for his work-related hearing loss. This matter now comes before the Full Commission on remand from the Arkansas Court of Appeals for additional findings on the statute of limitations issue in light of the decision in Minnesota Mining Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).
After conducting a de novo review of the entire record, we find that a preponderance of the evidence establishes that a 0.3% permanent hearing impairment had developed and became apparent to the claimant at the point in time two years before he filed his present claim for benefits. Consequently, we find that the statute of limitations bars the claimant's claim for benefits with respect to the 0.3% permanent hearing impairment that had developed and become apparent to the claimant at the point two years prior to the date the claimant filed his claim. Therefore, we find that the claimant is entitled to benefits only for the 5.6% work-related hearing loss which developed and became apparent after the claimant sustained the 0.3% hearing impairment barred by the statute of limitations.
Arkansas Code Annotated § 11-9-702(a)(1) provides that a claim for compensation for disability on account of injury shall be barred unless filed with the Commission within two years from the date of injury. For gradual-onset noise-induced hearing loss, the statute begins to run when the hearing loss becomes apparent to the claimant. Minnesota Mining Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).
In Baker, the injured worker became aware of his hearing loss in February of 1978, and because his hearing did not continue to deteriorate thereafter, his claim became time barred in February of 1980, some 12 years before he filed his claim.
In the present case, the claimant filed his claim on March 2, 1993. The record also indicates that the claimant underwent an audiogram on December 31, 1990, and that the audiogram performed on December 31, 1990 was the last audiogram that the claimant underwent more than two years prior to the date that he filed his claim.
The preponderance of the evidence also indicates that the claimant was made aware of his December 31, 1990 audiogram test results, which he signed, and therefore, a preponderance of the evidence establishes that the claimant's degree of hearing impairment measured on December 31, 1990 became apparent to the claimant more than two years prior to the date that he filed his claim on March 2, 1993. Consequently, we find that any claim for benefits for the 0.3% hearing impairment that existed on December 31, 1990 became time-barred when no claim was filed by December 31, 1992.
A majority of the Full Commission in an opinion filed on March 11, 1998, has previously found that the claimant sustained a 5.9% work-related hearing impairment. Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that 0.3% of the claimant's work-related hearing impairment is barred by the statute of limitations. The claimant is therefore entitled to benefits for the 5.6% hearing impairment which is not barred by the statute of limitations.
In reaching our decision, we note that the claimant has made an argument in his brief on remand that the respondents should be estopped from relying on the statute of limitations. However, our review of the administrative law judge's decision and the hearing transcript in this case indicates that the claimant did not raise any estoppel theory at the hearing before the administrative law judge. All legal and factual issues should be developed at the hearing before the administrative law judge. See, Ester v. National Home Centers, Inc., 61 Ark. App. 91, 967 S.W.2d 565 (1998). Under similar circumstances, this Commission has previously declined to consider an estoppel theory raised for the first time on appeal before the Full Commission. See, Elmore v. Crites Tackett Tree Service, Full Workers' Compensation Commission Opinion filed May 18, 1999 (W.C.C. No. E806504);Lawrence v. Sunbeam Outdoor Products, Full Workers' Compensation Commission Opinion filed June 3, 1998, (W.C.C. No. E704127). In the present case, as in Elmore and Lawrence, we find that the claimant's estoppel theory was not properly raised before an administrative law judge and therefore, not appropriately preserved for consideration in this appeal. Accord Teague v. C J Chemical Co., 55 Ark. App. 335, 935 S.W.2d 605 (1996).
We have previously awarded the claimant hearing aids based on Dr. Daniel Orchek's expert medical testimony indicating that the claimant's hearing loss after his claim was filed was of a nature and extent sufficient to require hearing aids. Whether the claimant's hearing loss might have been sufficient to require a need for hearing aids two years prior to the date that the claimant filed his claim is a medical question, and there are no medical opinions in the record indicating that the claimant's hearing loss was sufficient to require hearing aids more than two years prior to the date the claimant filed his claim for benefits, or to indicate that the claimant's additional hearing loss beginning two years prior to the date he filed his claim was insufficient to cause a need for hearing aids. Under these circumstances, we find that the respondents have failed to establish by a preponderance of the evidence that the claimant's claim for hearing aids is barred by the statute of limitations.
Finally, to the extent that Commissioner Wilson's concurring and dissenting opinion revisits the compensability issue, and makes arguments that the claimant's hearing loss was not work related, we point out that this case was remanded for additional findings on the statute of limitations issues, not the compensability issue.
Commissioner Turner acknowledges that the audiogram results in the record informed the claimant that his hearing was impaired. However, Commissioner Turner argues in part that the statute of limitations did not necessarily begin to run when the claimant learned of his audiogram results. Instead, Commissioner Turner argues that the statute of limitations does not begin to run until the injured worker becomes aware of the work-related nature of the hearing loss. Commissioner Turner's construction of the law may ultimately be adopted by the Courts in Arkansas. However, until we receive further guidance on this issue, we interpret the Supreme Court's decision in Minnesota Mining and Manufacturing v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999) as indicating that the hearing loss injury develops and becomes apparent when the claimant becomes aware of the physical hearing loss injury. In the present case, we find that date to be the date the claimant signed the relevant audiogram.
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).
IT IS SO ORDERED.
_______________________________ ELDON F. COFFMAN, Chairman
MIKE WILSON, Commissioner
I respectfully concur in part and dissent in part from the majority's opinion. Specifically, I concur with the majority opinion that the statute of limitations limits the claimant's claim to the hearing impairment sustained during the two years prior to the filing of his claim for benefits. I also concur in the finding that the claimant's estoppel theory was not properly raised before an Administrative Law Judge and, therefore, was not preserved for consideration in this appeal. However, I must dissent from the majority opinion finding that the claimant's 5.6% hearing loss was sustained during the two years prior to the filing of the claim was wholly caused by his employment. In addition, I dissent from the majority's award of hearing aids to the claimant. In my opinion, the respondents proved that the claimant's claim for hearing aids is barred by the statute of limitations.
With regard to the compensability of this claim, it remains my opinion that the claimant has failed to prove that his hearing loss is work-related. See, James L. Sossamon v. Alcoa, Full Workers' Compensation Commission Opinion filed March 11, 1998 (Claim No. E303215). I must merely point that in addition to any exposure at work where ear protection was utilized, the claimant was a hunter until 1993 and he routinely operated a chainsaw. These factors had to play a measurable role in any loss of hearing. Accordingly, I cannot find that the claimant has proven a causal relationship between his hearing loss and his work environment where ear protection was utilized.
Therefore, I concur in part and dissent in part from the majority opinion.
____________________________ MIKE WILSON, Commissioner
____________________________ SHELBY W. TURNER, Commissioner
I concur with the findings in the principal opinion that claimant has proven by a preponderance of the evidence that he is entitled to hearing aids and to benefits for permanent anatomical impairment in an amount equal to at least 5.6%. I also concur with the finding that respondent has failed to prove by a preponderance of the evidence that the claim for the benefits awarded herein is barred by the statute of limitation. However, I must respectfully dissent from the finding that respondent has proven that any part of this claim is barred by the statute of limitations. Accordingly, I would award benefits for a permanent anatomical impairment of 5.9%.
The principal opinion finds that since claimant was "aware" of the results of the December 31, 1990 audiogram, his permanent hearing impairment at that time (0.3%) "became apparent" to him more than two years prior to filing the claim on March 2, 1993 and is therefore, barred. However, the fact that claimant knew he had some hearing loss is not sufficient, standing alone, to start the running the statute of limitations.
Claimant's loss of hearing is classified as a gradual onset, scheduled injury. The Arkansas Supreme Court recently discussed such injuries in Minnesota Mining Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). The Arkansas Supreme Court noted that Arkansas is technically a "compensable injury" state and found that a scheduled injury does not become compensable until (1) the injury develops or becomes apparent, and (2) the claimant suffers a loss in earnings on account of the injury, which loss is conclusively presumed. Therefore, the statute of limitations with respect to scheduled injuries begins to run when the injury develops or becomes apparent to claimant because the loss of wage earning capacity is conclusively presumed. Additionally, the Court stated that claimant became aware of his hearing loss in February 1978 and the statute began to run in February 1978 "because his hearing did not continue to deteriorate." This seems to indicate that the statute does not begin to run until claimant becomes aware of his injury and the injury has stabilized or does "not continue to deteriorate."
In trying to determine the meaning of the words "develop" and "apparent," I looked to Black's Law Dictionary (5th ed.) and The American Heritage Dictionary (2nd ed.)
Apparent is defined as readily seen; open to view; visible; readily understood or perceived; plain or obvious.
Develop is defined as to realize the potentialities of; to bring into being; make active; to come to have gradually; acquire; to grow or expand; to come gradually into existence or activity; to be disclosed.
Manifest is defined as clearly apparent to the sight or understanding; obvious; to show or demonstrate plainly; reveal.
Patent is defined as open; manifest; evident; unsealed; obvious; plain.
Latent is defined as hidden; concealed; dormant; that which does not appear upon the face of a thing; present or potential but not evident or active. The American Heritage Dictionary contains the statement that "[t]hese adjectives describe what is existent or capable of existence but is not manifesting itself."
With this in mind, I believe the language used in statute of limitations cases involving latent injuries is instructive. This language includes such phrases as "the true or full extent of the injury manifests itself," "when the substantial character of the injury becomes known," and "claimant knows or should reasonably be expected to be aware of the full extent and nature of the injury." Thus, in my opinion, the statute does not begin to run until the injury manifests itself or until claimant knows or should reasonably be expected to be aware of the full extent and nature of the injury. See Woodard v. ITT Higbie Mfg. Co. 271 Ark. 498, 609 S.W.2d 115 (Ark.App. 1980). Further, such a definition would not take into account a possibility that the statute will not begin to run until the condition has stabilized, because the injury could be apparent to claimant but not stable.
Simple knowledge of the symptoms or the diagnosis is not sufficient to constitute knowledge of the extent or nature of the injury. Claimant must also know that the injury is causally related to the employment and cognizable under workers' compensation. St. John v. Arkansas Lime Co., 8 Ark. App. 278, 651 S.W.2d 104 (1983); see also Quality Service Railcar v. Williams, 36 Ark. App. 29, 820 S.W.2d 278 (1991). Since the passage of Act 796 of 1993, some conditions are causally related to the work, but not compensable under our Workers' Compensation Act. In my opinion, knowledge of both is required to begin the running of the statute.
Even though Williams, supra, involved the issue of when the 90-day period for giving notice of an occupational disease begins to run, the court indicated that the same rule applies in statute of limitations cases.
The Commission found that the claimant was not aware, until he attempted to return to work in January 1986 and was not able to do so, that he suffered from a disease cognizable under workers' compensation. The Commission relied on Desoto, Inc. v. Parsons, 267 Ark. 665, 590 S.W.2d 51 (Ark.App. 1979), for the rule that the time period for notice to the employer begins to run from `the first distinct manifestation of a disease cognizable under workers' compensation, not the first distinct manifestation of the disease.' Although the Parsons case involved an injury rather than an occupational disease, the court in Parsons quoted with approval the following statement by the Commission: `Claimant was not in a position to give notice of injury because she wasn't aware, until notified by her union, that she had a claim cognizable under workers' compensation.' We think the rule stated by the Commission in the present case is correct. Another way to express the same rule is found in Woodard v. ITT Higbie Mfg. Co., 271 Ark. 498, 609 S.W.2d 115 (Ark.App. 1980), where the court said, `the statute [of limitations] does not begin to run until the employee knows or should reasonably be expected to be aware of the extent or nature of his injury.'
Additional support for such a proposition can be found in 2B Larson, The Law of Workmen's Compensation, § 78.41.
Section 78.41(a) provides that "[t]he time period for notice or claim does not begin to run until the claimant, as a reasonable person, should recognize the nature, seriousness, andprobable compensable character of his or her injury or disease." (Emphasis added).
Section 78.41(f) provides the following:
Finally, under the third component of the test, the claim period does not run until the claimant has reason to understand not only the nature and gravity of the injury but its relation to employment. Even though the claimant knows he or she is suffering from some affliction, this knowledge is not enough to start the statute if its compensable character is not known to claimant. . . .
In my opinion, the respondent in the present case has failed to prove by a preponderance of the evidence that claimant knew or reasonably should have known the full extent and nature of his hearing loss for more than two years prior to the filing of this claim on March 2, l993.
While the audiogram results in the record admittedly informed claimant that his hearing was impaired, the reports never mentioned work-related or occupational noise as a possible cause of this loss. The reports do, however, list measles, mumps, chicken pox and "hunt/shoot."
It appears that these communications were designed to obscure occupational noise as a possible cause of the hearing loss.
Further, even the employer was struggling with the question of which employees suffered occupational hearing loss. In response to a grievance filed by the union, the employer sent the following correspondence dated August 1, 1990:
* * *
The grievance concerns a request by the
Union for information concerning hearing loss of employees at Arkansas. They state that their request for information has not been granted and request that this information be made available.
The Company pointed out that the plant medical department is currently reviewing data on a number of employees who have shown hearing threshold shifts to make a determination as to which ones may be occupationally related. It is anticipated that the review will require several months to complete.
* * *
By March 27, 1992 the employer still had not provided the requested information to union officials:
* * *
After reviewing the facts in this case, the Company will provide the Union with the appropriate information concerning those employees whose hearing loss has been determined to be occupationally related. This information will be provided to the Union no later than April 30, 1992.
However, the Company will not release information concerning employees whose hearing loss is determined to be nonoccupational without the expressed written permission of the employee. The Company apologizes for the delay in resolving this matter and hopes the aforementioned commitment will satisfy the Union's request.
This list of 114 employees was provided on or about April 29, 1992. (Claimant, James L. Sossamon, was not on the list). These employees were instructed by letter notification to contact the employer's medical department for additional information. Finally, in correspondence dated July 31, 1992, the employer told union representatives that "[a]s far as Corp is concerned, we are considering the two year limit as starting on the date they received the notification. The letters were sent registered mail so the receipt date is verified."
Respondent has failed to meet its burden of proving by a preponderance of the evidence that any of claimant's hearing loss developed or became apparent to him more than two years prior to the filing of the claim for benefits. Accordingly, I must respectfully dissent from that portion of the principal opinion.
_____________________________ SHELBY W. TURNER, Commissioner