BABBITT v. ALCOA, 1998 AWCC 108

CLAIM NO. E305581

PAUL H. BABBITT, EMPLOYEE, CLAIMANT v. ALCOA, SELF-INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
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.

[1] OPINION AND ORDER
[2] The claimant appeals and the respondent cross-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 failed to prove by a preponderance of the evidence that he sustained hearing loss causally related to his employment with the respondent in Arkansas. [3] 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. In addition, we find that the claimant failed to prove by a preponderance of the evidence that any hearing loss that he sustained after June 11, 1990, is causally related to his employment with the respondent. We also find that the preponderance of the evidence establishes that the claimant is not entitled to benefits for a permanent anatomical impairment rating under the AMA Guides formula, and we find that the claimant failed to prove by a preponderance of the evidence that amplification devices are reasonably necessary for any work-related hearing loss that the claimant may have sustained while employed at the Bauxite facility. Therefore, we find that the decision of the administrative law judge must be affirmed. [4] The claimant is a 42-year-old man who was initially hired by the respondent on November 5, 1973, and was laid off on June 11, 1990. Thereafter, he applied for a job at ALCOA in Point Comfort, Texas and worked there until June 27, 1994. Prior to working for the respondent, the claimant had two years of employment at International Paper Company. The claimant owns a hand Skil saw that he occasionally uses around his home and in 1986 to 1987 used a table saw, Skil saw, and chain saw. The claimant in the early 1980s fired a .16 gauge shotgun, a .22 rifle, a .410 shotgun, and a .45-caliber muzzle loader. In addition, the claimant rides a motorcycle. The claimant had a baseline audiogram was in October 1973 which reflected some high frequency hearing loss in the left ear. While working at the Bauxite Plant, the claimant was a laborer, bag loader and a scaler. He testified that from 1978 to 1979 he worked as a scaler handling jack-hammers in tanks; however, he used both ear plugs and ear muffs while scaling. [5] 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). [6] 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. . . .

[7] 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. [8] 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. [9] 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. [10] 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]

[11] 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. [12] 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. [13] 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. [14] 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). [15] 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. [16] 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. Babbitt), and he received a copy of answers to interrogatories prepared for approximately 23 of the 25 claimants. [17] 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. [18] 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. [19] The claimant in the present claim had a baseline audiogram on October 29, 1973. Periodic audiograms were performed up to May 30, 1990. The claimant was laid off from the Bauxite Plant on June 11, 1990, and he subsequently went to work for the employer at Point Comfort, Texas. The claimant also received audiograms after beginning employment at the Point Comfort, Texas facility, which are also in the record. [20] Dr. Orchik testified that the claimant’s binaural hearing impairment while employed at Bauxite, using the AMA Guides, was less than 1% and it was his opinion that the claimant’s hearing loss was related to his employment at ALCOA. He also opined that the claimant would benefits from amplification. [21] 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 failed to prove by a preponderance of the evidence that he has sustained any permanent anatomical impairment to his hearing capacity under the AMA Guides formula from employment with the respondent at the Bauxite facility. [22] In reaching our decision, we note that the claimant’s audiogram performed at the Bauxite facility on May 9, 1991, indicates that the claimant was experiencing a 0.6% impairment to his hearing capacity at that time. However, two later audiograms submitted into the record after the claimant reported to work at the Point Comfort facility each indicate that the claimant was experiencing a 0% impairment at that time under the AMA Guides
formula (indicating that the claimant’s hearing actually improved after he left the respondent’s Bauxite facility). Consequently, we find that the claimant failed to establish that he sustained any compensable anatomical impairment rating as a result of his employment at the respondent’s Bauxite facility. [23] Interestingly, Dr. Winston’s audiogram performed on January 14, 1994, indicates that the claimant at that time exhibited a 15.6% permanent impairment to his hearing capacity under the AMAGuides formula. Although the claimant apparently asserts that this rapid and severe hearing impairment is causally related to his work at both the Bauxite and Point Comfort facilities, for the reasons discussed above, we find that the claimant failed to show that he sustained any hearing impairment as a result of his work at the Bauxite facility. In reaching that conclusion, we interpret Dr. Orchik’s hearing testimony as indicating that an employee’s work-related noise induced hearing loss impairment will stabilize when the employee is removed from the noise exposure. (See, Orchik Testimony T. 171). Since two of the claimant’s audiograms after his termination from Bauxite on June 11, 1990 indicated a 0% impairment under the AMA Guides formula, we find that the claimant failed to prove by a preponderance of the evidence that any portion of his 15.6% impairment measured on January 14, 1994, is causally related to his work at the Bauxite facility. [24] In addition, we note that the claimant failed to present any evidence whatsoever regarding noise levels or noise exposure related to his work at the Point Comfort facility. On that basis, we find that the claimant failed to prove by a preponderance of the evidence that any hearing loss he may have experienced as of January 14, 1994, was causally related to his employment at the respondent’s Point Comfort facility between 1991 and 1994. In light of the significant increase in the claimant’s hearing loss between his separation from Bauxite in 1990 and his audiological testing in January of 1994, we also find that the claimant failed to prove that amplification devices are reasonably necessary for any hearing loss that the claimant sustained as a result of his work at the Bauxite facility. [25] In reaching our decision, we also affirm the administrative law judge’s determination that the appropriate formula for calculating hearing impairment (previously applied by the Arkansas Worker’s Compensation Commission) is the formula in the AMA Guidesto the Evaluation of Permanent Impairment. The claimant advocates adoption of an alternative formula described by Dr. Orchik as the “Oregon formula”. However, we note that the AMA Guides formula was adapted from information provided by the American Academy of Otolaryngology, and we frankly are unclear as to who developed the “Oregon formula” or which professional medical associations, if any, endorse that formula. We therefore decline to abandon theAMA Guides formula for the “Oregon formula” based on the record and evidence before us. [26] 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. In addition, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to indemnity benefits or medical benefits. Therefore, we find that the administrative law judge’s decision must be affirmed. [27] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman

[28] Commissioner Humphrey concurs in part and dissents in part. [29] CONCURRING AND DISSENTING OPINION
[30] I concur with the finding in the principal opinion that this claim is not barred by the statute of limitations. Based on Dr. Orchik’s opinion, I find that claimant has proven by a preponderance of the evidence that he sustained some hearing loss causally related to his employment. Therefore, I respectfully dissent from the finding in the principal opinion that claimant failed to meet his burden of proof. Accordingly, the opinion of the Administrative Law Judge should be reversed in this regard. [31] PAT WEST HUMPHREY, Commissioner [32] Commissioner Wilson concurs in part and dissents in part. [33] CONCURRING DISSENTING OPINION
[34] I agree with the principal opinion finding that this claimant failed to prove an entitlement to indemnity on medical benefits. However, I write separately to explain that I disagree with the finding regarding the statute of limitations. Until this matter is resolved by the Courts, I simply cannot accept that the General Assembly created a class of claims for which the statute of limitations will never apply. Accordingly, for those reasons expressed in my dissent in Revies L. Stacey v. ALCOA, Full Commission Opinion, March __, 1998, Claim No. E303220, I dissent from the finding that this claim is not barred from the statute of limitations. [35] MIKE WILSON, Commissioner