Opinion
CLAIM NO. E303250
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 and that the claimant is entitled to medical benefits associated with amplification devices. The administrative law judge also found that the claimant sustained a 0% permanent impairment rating under the AMA Guides formula.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. In addition, we find that the greater weight of the evidence in the record establishes that the claimant sustained a 0.6% 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 in part and reversed in part.
The claimant is a 60-year-old man who began work for the respondent on January 27, 1975, and was laid off on account of a reduction of force on January 24, 1990. In the late 1950's, the claimant was in the Army for 3 years. After that time, and prior to beginning work with the respondent, the claimant worked for several different companies as a welder. The claimant also worked for the respondent as a welder.
The claimant testified that he was not subjected to any significant noise prior to beginning work for the respondent but that after he went to work for the respondent there were periods where the noise level was unbearable. The claimant testified that as a welder, he was required to work in every building at ALCOA. Specifically, the claimant testified that he was required to work in Building 230, which contained the ball mills.
With regard to non-work-related noise exposure, the claimant testified that he is a deer hunter and that he uses a .12 shotgun. In addition, the claimant uses a power drill and a shop vac. The claimant has a riding lawn mower and uses hearing protection.
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. Carlisle), 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 records reflect that the claimant in the present case had a baseline audiogram on September 27, 1974. Periodic audiograms were performed up through December 20, 1993.
Dr. Orchik testified that the claimant's binaural hearing impairment using the AMA Guidelines was 14% and it was his opinion that the claimant's hearing loss was related to this employment with the respondent. He also opined that the claimant would benefit from amplification.
After considering the testimony of the claimant, Ms. Schielfer, 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.
The administrative law judge's opinion and order indicates that the administrative law judge utilized the claimant's 1974 baseline audiogram and 1993 post-work-related audiogram to ascertain that the claimant did not sustain a compensable hearing impairment pursuant to the AMA Guides during the period. With regard to the administrative law judge's findings, however, we note that the claimant's pre-employment audiogram indicates a 0% pre-employment impairment rating in 1974 and that the claimant's 1993 audiogram indicates a 13.1% hearing loss impairment sustained as of that date. Therefore, if we were to find that the claimant's entire hearing loss during the period from 1974 to 1993 is causally related to his work from the respondent, we would find that the claimant sustained a 13.1% hearing loss impairment.
However, in the present case, we find that the greater weight of the evidence establishes that the claimant sustained only a 0.6% hearing loss that is causally related to his employment with the respondent. In reaching that decision, we note that the claimant was laid off on June 24, 1990 and we note that the claimant's audiogram performed on June 6, 1990, indicates a 0.6% hearing loss impairment as of that date. We also note that the claimant's audiograms for the ten year period preceding his separation from ALCOA in 1990 consistently indicated a very minor impairment under the Guides formula in the 0% to 2% range, 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). Consequently, we see no basis in the record to conclude that the claimant's entire 13.1% hearing loss impairment indicated in 1993 (nearly three years after his separation from the respondent) is entirely due to his employment with the respondent. To the contrary, in the present case, we find that the greater weight of the evidence indicates that the claimant has sustained a 0.6% hearing loss impairment related to his employment with the respondent.
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 and the dissent assert 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 theGuides 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).
In the present case Dr. Orchik 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.
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 0.6% 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
[34] I must respectfully dissent from the majority opinion. This claim presents a rather unique set of facts. Claimant was laid off by respondent when he was fifty-four years of age after working for respondent for fifteen years. At the time of claimant's lay-off, January of 1990, 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 claimant's 0.6% loss was causally related to claimant's work environment and has ignored the fact that claimant has suffered a huge increase in his hearing loss over the next few years, without the exposure to noise from claimant's work environment. Obviously, the dramatic increase in claimant's hearing loss cannot be associated with claimant's work environment since he was no longer subject to the noise in that environment. It is more than likely that 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 claimant came to work for respondent hearing protection was uniformly implemented throughout the plant. Given these set of facts, I simply am not persuaded that the nominal loss detected just prior to claimant's lay off is causally related to claimant's work environment. To find such a relationship is to ignore the logical progression of age related loss which clearly increased after leaving respondent's employment.These facts are also unique with regard to the statute of limitations claim. The majority has found that the statute of limitations has not run on this claim even though the claimant left respondent's employment in January of 1990 yet did not file his claim for benefits until March of 1993. These facts alone stress the importance of respondents-evaluating the statute of limitations as it is applied to hearing loss claims. As I have stated in previous dissents, the current law requiring disability will never apply to hearing loss claims. The law as it stands today effectively eliminating this defense against stale claims. See Revies L. Stacey v. ALCOA, Full Commission Opinion filed March __, 1998, ( E303220). Therefore, I respectfully dissent from the majority opinion.
MIKE WILSON, Commissioner