CLAIM NO. E318847
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 6, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE PHILIP E. KAPLAN and 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 this claim is not barred by the statute of limitations. In addition, the administrative law judge found that the claimant has failed to prove by a preponderance of the evidence that he sustained hearing loss causally related to his employment with respondent. After conducting a de novo review of the entire record, we find that the decision of the administrative law judge must be affirmed. [3] The claimant is a 54-year-old man who began work for the respondent on October 4, 1963, and is still employed. Before beginning work with respondent, the claimant worked construction in Arkansas and Alaska. The claimant was in the Army for three and a half years. According to the claimant, he has hunted with a .12 gauge shotgun; however, he probably has not shot a full box of shells in the past 30 years. At home, the claimant has a power drill and a Skil saw. The claimant also has a power mower which he operates. His pre-employment audiogram on October 2, 1963 reflected hearing loss at 4,000 Hz and 6,000 Hz. The claimant has worked for respondent as a laborer running the jack-hammer inside tanks, running the rock crushers and finally in a building maintenance apprenticeship where he worked in noisy areas such as the powerhouse. [4] The respondent provided hearing tests on a yearly basis. On July 1, 1980, an audiogram was performed at the Ear and Nose-Throat Clinic, P.A., which revealed normal hearing at 2,000 Hz and below and some hearing loss at 3,000 Hz and above. On November 11, 1985, the claimant signed a notice received from the ALCOA medical department advising him that he had exhibited an average change of 10 decibels or greater at sound frequencies sensitive to high noise levels. On October 2, 1990, the claimant signed an audiogram, which noted that he experienced noises in the ears, fullness in the ears and difficulty hearing. [5] The 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). The 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. Instead, the limitations period does not begin running until the injury becomes compensable. Wortham, supra. [6] In the present claim, on December 13, 1993, the claimant filed a hearing loss claim for compensation and he contended at that time that he sustained work-related hearing loss. Nevertheless, there is no evidence suggesting that the claimant has suffered any loss of earnings or earning capacity as a result of this condition. Consequently, we find that the statute of limitations does not bar this claim. [7] The American Medical Associations’ Guide to the Evaluation ofPermanent Impairment are the recognized standards to be followed in workers’ compensation cases. Erwin v. Kenco, Full Commission Opinion, July 11, 1991 (D914190). The claimant and Dr. Daniel Orchik, an audiologist, recommended the “Oregon” formula, which takes into account higher frequency hearing loss; however, the “Oregon” formula does not address the increased effect of presbycusis which can affect the higher frequencies. We also note that the claimant has failed to demonstrate which organizations in the medical community, if any, that endorse the proposed “Oregon” formula. The AMA Guides contain the hearing impairment formula adopted in Arkansas and are recognized by the American Academy of Otolaryngology. [8] Tom Rimmer, an industrial hygienist, testified as an expert witness for the claimant that he had conducted a comprehensive evaluation of the hearing conservation program at the employer. He concluded, as a result of that study, that the employer has had and still has some high noise levels, high enough to need a hearing conservation program and high enough to cause hearing loss. The employer has a hearing conservation program and they have made considerable efforts in that area, although deficiencies were noted. Dr. Rimmer referenced in his testimony a September 16, 1991, report from Christine Dixon Ernst, a management employee in the Pittsburgh office of the employer, where she was outlining some concerns at the Bauxite location and stated in this report that 50% of the respondent’s employees work in an area where the noise level is greater than or equal to 85 DBA. [9] The respondent does not dispute that the work environment has noise; however, it contends that it maintained a hearing conservation and testing program and provided hearing protection that was adequate to prevent noise induced hearing loss. [10] The claimant’s records indicate that the claimant in the present claim had a baseline audiogram on October 2, 1963. Periodic audiograms were performed up through December 9, 1992. [11] Dr. Daniel Orchik, an audiologist with the Shay Clinic in Memphis, testified as an expert witness. Dr. Orchik opined that based on the claimant’s work records and his audiograms, there has been some change in his hearing, about 10 to 15 DB over that 29-year period. Dr. Orchik opined that it was possible that the deterioration of the claimant’s hearing could be work related; however, he did not feel comfortable expressing more than a guarded opinion. In addition, utilizing the AMA Guides, Dr. Orchik found there was no permanent impairment. [12] After considering the testimony of Dr. Orchik, the claimant’s audiograms and all other evidence properly in the record, we find that the claimant has failed to prove by a preponderance of the evidence that he sustained any hearing loss causally related to his employment. In reaching that decision, we note that the claimant does suffer some high frequency hearing loss; however, the evidence also establishes that the claimant had significant high frequency hearing loss which preexisted his employment at the respondent’s facility. Moreover, the claimant’s high frequency hearing loss is not sufficient to cause permanent hearing impairment pursuant to the AMA Guides, and it appears that Dr. Orchik was not persuaded that any hearing determination has been work related. [13] Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the decision of the administrative law judge must be, and hereby is, affirmed. [14] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman
[15] Commissioner Humphrey concurs in part and dissents in part. [16] CONCURRING AND DISSENTING OPINION[17] While I concur with the finding in the principal opinion that this claim is not barred by the statute of limitations, I must respectfully dissent from the finding that claimant has failed to prove by a preponderance of the evidence that he sustained hearing loss causally related to his employment. [18] PAT WEST HUMPHREY, Commissioner [19] Commissioner Wilson concurs in part and dissents in part. [20] CONCURRING DISSENTING OPINION
[21] I agree with the principal opinion finding that this claimant failed to prove a compensable hearing loss. 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 inCecil W. Smith v. ALCOA, Full Commission Opinion, February 6, 1998, Claim No. E303209, I dissent from the finding that this claim is not barred from the statute of limitations. [22] MIKE WILSON, Commissioner