ALLISON v. INTERNATIONAL PAPER COMPANY, 1996 AWCC 23


CLAIM NOS. E303982, E303999, E304005, E304006, E304008,
E304017, E304024, E304026, E304028, E304040, E304050,
E304051, E304059, E304062, E304063, E304066, E304079,
E304082, E304085, E304086, E304091, E304107, E304133,
E304136, E304149, E304153, E304163, E304166, E304167,
E304171, E304175, E304179,

LAMAR ALLISON, ET AL., EMPLOYEES, CLAIMANT v. INTERNATIONAL PAPER COMPANY, SELF-INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 19, 1996

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimants represented by the HONORABLE PHILIP KAPLAN, Attorney at Law, Little Rock, Arkansas.

Respondents represented by the HONORABLE MICHAEL J. DENNIS, Attorney at Law, Pine Bluff, Arkansas.

Decision of Administrative Law Judge: Set aside and remanded.

[1] OPINION AND ORDER

[2] The claimants in these companion cases each appeal an order of dismissal filed by the administrative law judge on July 27, 1995 or on September 26, 1995. In those orders, the administrative law judge granted the respondent’s motion to dismiss, apparently concluding that each claim is barred by the Statute of Limitations. However, no hearing was held to allow the parties to develop a record nor was a record developed with stipulated facts. In this regard, the determination of whether the Statute of Limitations bars a claim involves an application of the Statute to the facts of the claim. Consequently, before we can make any findings with regard to this issue, a record must be developed upon which a decision can be based. Consequently, after reviewing this matter, we find that the administrative law judge’s decision must be set aside and that the claim must be remanded to the administrative law judge with instructions to conduct such proceedings as may be necessary for resolution of the issues presented by the parties.

[3] In reaching this decision, we note that the respondent’s argument concerning summary judgments and supporting affidavits is wholly without merit. First, the formal rules of civil procedure cited by the respondent simply are not applicable to proceedings before the Workers’ Compensation Commission. Ark. Code Ann. § 11-9-705(a)(1) (Cumm. Supp. 1993); see also, Ark. R. Civ. Pro. Rule 1. Furthermore, the Arkansas Court of Appeals has expressly held that summary judgment procedures do not apply to matters before the Workers’ Compensation Commission. InTracor/MBA v. Flowers, 41 Ark. App. 186, 850 S.W.2d 30 (1993), the Court made the following comments:

We do not agree that the summary judgment procedure provided by Rule 56 of the Arkansas Rules of Civil Procedure applies to matters filed in the Workers’ Compensation Commission. No authority for this view is cited by appellant and the appellee cites Rule 1 of the Rules of Civil Procedure which expressly provides that the Rules apply in the Circuit, Chancery, and Probate Courts. The Commission is not mentioned.

[4] Therefore, we find that the respondent’s arguments must be rejected.

[5] We also note that the respondent contends on appeal that the hearing loss alleged by the claimants is an occupational disease, and that their claims have not been filed within the limitations period applicable to an occupational disease under Ark. Code Ann. § 11-9-702 (a)(2). However, no judicial authority has previously determined whether hearing loss is an “injury” or an “occupational disease” under the Arkansas Workers’ Compensation Law as it existed prior to Act 796 of 1993. Therefore, we note the following authorities to assist the administrative law judge and the parties in developing an appropriate record on remand:Hancock v. Modern Industrial Laundry, 46 Ark. App. 186, 878 S.W.2d 416 (1994); Tyson Foods. Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990); Manuel Kilgore v. Rheem ManufacturingCo., Full Workers’ Compensation Commission, Aug. 18, 1994 (Claim No. E304918); Willie Johnson v. Land O’ Frost, Inc., Full Workers’ Compensation Commission, Jul. 18, 1994 (Claim No. E115527); Ark Code Ann. § 11-9-102 (5)(A) (ii)(c) (Cumm. Supp. 1993). We note that additional authority may also be appropriate.

[6] Accordingly, for the reasons discussed herein, we find that the administrative law judge’s decision must be set aside and remanded with instructions for the administrative law judge to conduct such proceedings as are necessary to develop a record in this matter and to file an opinion and order setting forth findings and conclusions based on that record.

[7] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner ALICE L. HOLCOMB, Commissioner