Opinion
CLAIM NO. E303250
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 0.6% 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 0.6% 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 0.6% 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. Since the preponderance of the evidence establishes that all of the claimant's hearing loss developed and became apparent to the claimant more than two years prior to the date that he filed his claim, we find that the statute of limitations bars the claimant's entire claim for benefits.
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 June 6, 1990, and that the audiogram performed on June 6, 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 June 6, 1990 audiogram test results, which he signed, and therefore, a preponderance of the evidence establishes that the claimant's degree of hearing loss measured on June 6, 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 0.6% hearing impairment that existed on June 6, 1990 became time-barred when no claim was filed by June 6, 1992.
A majority of the Full Commission in an opinion filed on March 11, 1998, has previously found that the claimant sustained a 0.6% work-related hearing impairment. However, after conducting ade novo review of the entire record, and for the reasons discussed herein, we find that the claimant's present claim for his 0.6% hearing impairment is 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. However, we also found that the claimant did not sustain any additional work-related hearing loss after he was laid off on June 4, 1990. Under these circumstances, where a preponderance of the evidence indicates that the claimant did not experience any additional work-related hearing loss within the two-year period prior to filing his claim on March 2, 1993, and where the claimant's prior work-related hearing loss had been made known to the claimant more than two years prior to filing his claim, we find that the claimant's March 2, 1993 claim for medical benefits for the claimant's work-related hearing loss was not filed within the two-year limitation period. Consequently, we also find 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.
IT IS SO ORDERED.
_______________________________ ELDON F. COFFMAN, Chairman
I respectfully concur in the majority's finding that the claimant's claim for permanent hearing loss is barred by the statute of limitations. I agree that any work-related permanent hearing loss had developed and became apparent to the claimant at the point two years prior to the date the claimant filed this claim. I also concur in the majority's finding that the claimant's claim for hearing aids is also barred by the statute of limitations. In addition, I 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.
With regard to compensability, it remains my opinion that the claimant has failed to prove that his hearing loss is work-related. See, Roy M. Woods v. Alcoa, Full Workers' Compensation Commission Opinion filed March 11, 1998 (Claim No. E303250). The claimant was fifty-four years of age after working for respondent for fifteen years. At the time of the claimant's layoff, January of 1990, the claimant only had a minimal hearing loss of 0.6% After being laid off for three years, this hearing loss dramatically increased to over 13%. The majority has found that the claimant's 0.6% loss was causally related to the claimant's work environment and has ignored the fact that the claimant has suffered a huge increase in his hearing loss over the next few years, without the exposure to noise from the claimant's work environment. Obviously, the dramatic increase in the claimant's hearing loss cannot be associated with the claimant's work environment since he was no longer subject to the noise in that environment. It is more likely that the claimant's minimal loss detected in 1990 was merely the beginning of his age-induced hearing loss, which is in no way related to noise exposure at work and which continued to manifest itself over the next several years after claimant's layoff. Moreover, it must be noted that by the time the claimant came to work for respondent, hearing protection was uniformly implemented throughout the plant. Given this set of facts, I simply am not persuaded that the nominal loss detected just prior to the claimant's layoff is causally related to the claimant's work environment. To find such a relationship is to ignore the logical progression of age-related loss which clearly increased after leaving the respondent's employment.
Therefore, I respectfully concur in the majority's opinion.
______________________________ MIKE WILSON, Commissioner
______________________________ SHELBY W. TURNER, Commissioner