CLAIM NO. E605910
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 6, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DONALD S. RYAN, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE CAROL WORLEY, Attorney at Law, Little Rock, Arkansas.
ORDER
In the above-styled matter, the Arkansas Court of Appeals has affirmed in part and reversed in part a Full Commission opinion filed November 9, 1999, and has remanded to the Commission for entry of an opinion consistent with the Court’s opinion. See,Byars Construction Company v. Byars, 72 Ark. App. ___, ___ S.W.3d ___ (2000).
Accordingly, the Full Commission finds that the claimant is responsible for medical services rendered by Dr. Edward Saer. We therefore affirm the administrative law judge’s finding that the claimant was paid for all benefits to which he was entitled, up to his surgical fusion by Dr. Saer. We affirm the administrative law judge’s finding that the claimant failed to petition the Commission for a change of physician pursuant to Ark. Code Ann. § 11-9-514, and that any medical treatment rendered by physicians other than Drs. Rutherford, Yocum, Edrington, and Cash were not authorized and not the respondents’ responsibility. The Full Commission again affirms the administrative law judge’s finding that the claimant is entitled to temporary total disability compensation commencing with the date of his spinal fusion surgery in September, 1998 and ending when he reached his maximum healing period on February 16, 1999.
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 (now in part) on this appeal before the Full Commission, we have previously awarded the claimant’s attorney an additional attorney’s fee in the amount of $250.00, in accordance with Ark. Code Ann. § 11-9-715(b) (Repl. 1996).
IT IS SO ORDERED.
________________________________ ELDON F. COFFMAN, Chairman
____________________________________________________ MIKE WILSON, Commissioner
Commissioner Turner dissents.
I must respectfully dissent from the finding in the principal opinion that respondent has proven by a preponderance of the evidence that this claim is barred by the statute of limitations. Accordingly, I would award hearing aids and benefits for a permanent anatomical impairment of 0.6%.
The principal opinion finds that since claimant was “aware” of the results of the June 6, 1990 audiogram, his permanent hearing impairment at that time (0.6%) “became apparent” to him more than two years prior to filing the claim on March 2, 1993 and is therefore, barred. However, the fact that claimant knew he had some hearing loss is not sufficient, standing alone, to start the running the statute of limitations.
Claimant’s loss of hearing is classified as a gradual onset, scheduled injury. The Arkansas Supreme Court recently discussed such injuries in Minnesota Mining Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). The Arkansas Supreme Court noted that Arkansas is technically a “compensable injury” state and found that a scheduled injury does not become compensable until (1) the injury develops or becomes apparent, and (2) the claimant suffers a loss in earnings on account of the injury, which loss is conclusively presumed. Therefore, the statute of limitations with respect to scheduled injuries begins to run when the injury develops or becomes apparent to claimant because the loss of wage earning capacity is conclusively presumed. Additionally, the Court stated that claimant became aware of his hearing loss in February 1978 and the statute began to run in February 1978 “because his hearing did not continue to deteriorate.” This seems to indicate that the statute does not begin to run until claimant becomes aware of his injury and the injury has stabilized or does “not continue to deteriorate.”
In trying to determine the meaning of the words “develop” and “apparent,” I looked to Black’s Law Dictionary (5th ed.) and The American Heritage Dictionary (2nd ed.)
Apparent is defined as readily seen; open to view; visible; readily understood or perceived; plain or obvious.
Develop is defined as to realize the potentialities of; to bring into being; make active; to come to have gradually; acquire; to grow or expand; to come gradually into existence or activity; to be disclosed.
Manifest is defined as clearly apparent to the sight or understanding; obvious; to show or demonstrate plainly; reveal.
Patent is defined as open; manifest; evident; unsealed; obvious; plain.
Latent is defined as hidden; concealed; dormant; that which does not appear upon the face of a thing; present or potential but not evident or active. The American HeritageDictionary contains the statement that “[t]hese adjectives describe what is existent or capable of existence but is not manifesting itself.”
With this in mind, I believe the language used in statute of limitations cases involving latent injuries is instructive. This language includes such phrases as “the true or full extent of the injury manifests itself,” “when the substantial character of the injury becomes known,” and “claimant knows or should reasonably be expected to be aware of the full extent and nature of the injury.” Thus, in my opinion, the statute does not begin to run until the injury manifests itself or until claimant knows or should reasonably be expected to be aware of the full extent and nature of the injury. See Woodard v. ITT Higbie Mfg.Co. 271 Ark. 498, 609 S.W.2d 115 (Ark.App. 1980). Further, such a definition would not take into account a possibility that the statute will not begin to run until the condition has stabilized, because the injury could be apparent to claimant but not stable.
Simple knowledge of the symptoms or the diagnosis is not sufficient to constitute knowledge of the extent or nature of the injury. Claimant must also know that the injury is causally related to the employment and cognizable under workers’ compensation. St. John v. Arkansas Lime Co., 8 Ark. App. 278, 651 S.W.2d 104 (1983); see also Quality Service Railcar v. Williams, 36 Ark. App. 29, 820 S.W.2d 278 (1991). Since the passage of Act 796 of 1993, some conditions are causally related to the work, but not compensable under our Workers’ Compensation Act. In my opinion, knowledge of both is required to begin the running of the statute.
Even though Williams, supra, involved the issue of when the 90-day period for giving notice of an occupational disease begins to run, the court indicated that the same rule applies in statute of limitations cases.
The Commission found that the claimant was not aware, until he attempted to return to work in January 1986 and was not able to do so, that he suffered from a disease cognizable under workers’ compensation. The Commission relied on Desoto, Inc. v. Parsons, 267 Ark. 665, 590 S.W.2d 51 (Ark.App. 1979), for the rule that the time period for notice to the employer begins to run from `the first distinct manifestation of a disease cognizable under workers’ compensation, not the first distinct manifestation of the disease.’ Although the Parsons case involved an injury rather than an occupational disease, the court in Parsons quoted with approval the following statement by the Commission: `Claimant was not in a position to give notice of injury because she wasn’t aware, until notified by her union, that she had a claim cognizable under workers’ compensation.’ We think the rule stated by the Commission in the present case is correct. Another way to express the same rule is found in Woodard v. ITT Higbie Mfg. Co., 271 Ark. 498, 609 S.W.2d 115 (Ark.App. 1980), where the court said, `the statute [of limitations] does not begin to run until the employee knows or should reasonably be expected to be aware of the extent or nature of his injury.’
Additional support for such a proposition can be found in 2B Larson, The Law of Workmen’s Compensation, § 78.41.
Section 78.41(a) provides that “[t]he time period for notice or claim does not begin to run until the claimant, as a reasonable person, should recognize the nature, seriousness, andprobable compensable character of his or her injury or disease.” (Emphasis added).
Section 78.41(f) provides the following:
Finally, under the third component of the test, the claim period does not run until the claimant has reason to understand not only the nature and gravity of the injury but its relation to employment. Even though the claimant knows he or she is suffering from some affliction, this knowledge is not enough to start the statute if its compensable character is not known to claimant. . . .
The respondent in the present case has failed to prove by a preponderance of the evidence that claimant knew or reasonably should have known the full extent and nature of his hearing loss for more than two years prior to the filing of this claim on March 2, l993.
While the audiogram results in the record admittedly informed claimant that his hearing was impaired, the reports never mentioned work-related or occupational noise as a possible cause of this loss. The reports do, however, list measles, mumps, and “hunt/shoot.” Additionally, the employer’s medical department sent claimant letters following periodic audiograms. In my opinion, these communications were designed to obscure occupational noise as a possible cause of the hearing loss.
Further, even the employer was struggling with the question of which employees suffered occupational hearing loss. In response to a grievance filed by the union, the employer sent the following correspondence dated August 1, 1990:
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The grievance concerns a request by the
Union for information concerning hearing loss of employees at Arkansas. They state that their request for information has not been granted and request that this information be made available.
The Company pointed out that the plant medical department is currently reviewing data on a number of employees who have shown hearing threshold shifts to make a determination as to which ones may be occupationally related. It is anticipated that the review will require several months to complete.
* * *
By March 27, 1992 the employer still had not provided the requested information to Union officials:
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After reviewing the facts in this case, the Company will provide the Union with the appropriate information concerning those employees whose hearing loss has been determined to be occupationally related. This information will be provided to the Union no later than April 30, 1992.
However, the Company will not release information concerning employees whose hearing loss is determined to be nonoccupational without the expressed written permission of the employee. The Company apologizes for the delay in resolving this matter and hopes the aforementioned commitment will satisfy the Union’s request.
This list of 114 employees was provided on or about April 29, 1992. (Claimant, Roy Woods, was not on the list). These employees were instructed by letter notification to contact the employer’s medical department for additional information. Finally, in correspondence dated July 31, 1992, the employer told union representatives that “[a]s far as Corp is concerned, we are considering the two year limit as starting on the date they received the notification. The letters were sent registered mail so the receipt date is verified.”
Respondent has failed to meet its burden of proving by a preponderance of the evidence that any of claimant’s hearing loss developed or became apparent to him more than two years prior to the filing of the claim for benefits. Accordingly, I must respectfully dissent from that portion of the principal opinion.
________________________________ SHELBY W. TURNER, Commissioner