CLAIM NO. E303047
Before the Arkansas Workers’ Compensation Commission
ORDER FILED FEBRUARY 5, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE SILAS H. BREWER, JR., Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE PHILLIP CARROLL, Attorney at Law, Little Rock, Arkansas.
ORDER
This matter comes before the Full Commission on the issue of whether the respondents are estopped from asserting the statute of limitations as a defense to the claimant’s claim for benefits for work-related hearing loss. After conducting a de novo review of the entire record, we find that the claimant has failed to establish that the respondents are estopped from asserting the statute of limitations as a defense to the claimant’s claim for benefits.
The elements of equitable estoppel, as set out in Snow v. Alcoa, 15 Ark. App. 205, 691 S.W.2d 194 (1985), are as follows:
(1) The party to be estopped must know the facts;
(2) he or she must intend that his or her conduct shall be acted upon or must act so that the party asserting the estoppel has the right to believe the other part so intended;
(3) the party asserting the estoppel must be ignorant of the true facts; and
(4) the party asserting the estoppel must rely on the other party’s conduct to his or her injury.
In the present case, the claimant became employed at Alcoa on December 9, 1968, and was still employed at Alcoa at the time of the hearing. The claimant moved to an office job in 1990 or 1991. The claimant filed his claim for benefits on March 2, 1993. We have previously found that the claimant in the present case failed to establish that he sustained any work-related hearing loss after 1990, in light of the evidence that the claimant moved to an office in 1990 or 1991. We also found that the claimant was made aware of his August 6, 1990 audiogram results, which he signed, and that a preponderance of the evidence therefore establishes that the claimant’s degree of hearing loss measured on August 6, 1990 became apparent to the claimant more than two years prior to the date that he filed his claim on March 2, 1993. Consequently, we found that any claim for benefits for the 15.3% hearing impairment that existed on August 6, 1990 became time barred when no claim was filed by August 6, 1992.
The claimant’s “Memorandum Brief for Claimants on Common Core Issues” filed with the Commission on July 20, 2000 makes the following arguments relevant to the estoppel issue:
C. Respondent misled claimants regarding both the cause and the severity of the hearing loss, and should be estopped from asserting the statute of limitations during the periods when such misleading notices were dissiminated.
D. Alcoa informed 114 of its employees on July 31, 1992, that they suffered job-related hearing loss, and advised them that they would have two years from the date of such notice within which to file claims for compensation.
With regard to argument “C.”, Alcoa did send Mr. Chism letters in 1991 and 1992 that stated “you are not currently exposed to excessive amounts of noise in your job . . .” However, there is no dispute that this is a true statement in light of the claimant’s move to a job in an office environment prior to receiving these letters. Furthermore, nowhere in the claimant’s testimony does the claimant ever describe any instance or circumstance where he now feels he was in any way misled by Alcoa as to either the cause or the severity of his hearing loss. With regard to the claimant’s knowledge of relevant facts, we note that the claimant testified that he recalled there being postings for high noise areas in the plant in the early 1980s. The claimant also testified that when he went to work in the mines, there was no hearing protection, but that he was one of the employees who asked for hearing protection in the mines in the mid-1970s. Moreover, the claimant’s testimony does not indicate whether or not anyone at Alcoa ever indicated to the claimant that his hearing loss was not work related. The closest testimony to this subject was the following:
Q. Has anyone either from the dispensary or the Safety Department or supervision or anyone with a position like that at Alcoa ever told you that your hearing impairment was noise induced or related to noise at work?
A. No.
Finally, we note that the claimant failed to indicate at the hearing what, if anything, may have affected the claimant’s decision to file a claim for benefits on March 2, 1993, as opposed to filing a claim on any earlier date or any later date.
Therefore, on this record, we find that the claimant has failed to establish that Alcoa possessed any relevant facts of which the claimant was ignorant, that Alcoa in any way even potentially misled Mr. Chism about the cause and severity of his hearing loss, or that Mr. Chism in any way relied on any conduct on Alcoa’s part in waiting until March 2, 1993 to file his claim for benefits.
With regard to the argument in “D.” above, it is true that Alcoa informed 114 of its employees on July 31, 1992 that they suffered job-related hearing loss, and also advised those 114 employees that they would have two years from the date of such notice within which to file claims for compensation. However, the claimant’s only potentially relevant testimony on this issue at the hearing was as follows:
Q. Have you ever received any — well, strike that. Are you aware that any other employees have — out at Alcoa have ever received certified letters from the plant management informing them that they do have or did have noise induced hearing loss?
A. No.
In addition, there is no dispute that the claimant is not one of the 114 employees who were the intended recipients of the company’s July 31, 1992 letter. Under these circumstances, where the claimant testified that he was not even aware that other employees had received the letters at issue, the claimant has failed to establish that Alcoa engaged in any conduct in sending those 114 letters which Alcoa intended Mr. Chism to act upon or which Mr. Chism had any right to believe Alcoa intended him to act upon. To the contrary, a preponderance of the evidence establishes that the claimant was not even aware that the letters were sent, and under these circumstances, the claimant has therefore also failed to establish that Mr. Chism in any way relied on any of the 114 letters sent by Alcoa on July 31, 1992 to other employees at the company.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant has failed to established that the respondents are estopped from asserting the statute of limitations as a defense to the claimant’s present claim for benefits.
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ MIKE WILSON, Commissioner
Commissioner Turner dissents.
DISSENTING OPINION SHELBY W. TURNER, Commissioner
I must respectfully dissent. I realize that the only issue before the Commission on remand from the Arkansas Court of Appeals is whether respondent is estopped from asserting that the statute of limitations bars this claim. Regardless of whether estoppel applies under the facts of this case, I still believe respondent 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, 1993.
While the audiogram results in the record admittedly informed claimant that his hearing was impaired, these reports never mention work-related or occupational noise as a possible cause of this loss. Interestingly, the reports do list measles, mumps, chicken pox, medications, noisy hobbies, and “hunt/shoot” as possible causes of his hearing loss. Overall, respondent’s communications with this claimant were designed to obscure occupational noise as a possible cause of his hearing loss.
Respondent has failed to meet its burden of proving by a preponderance of the evidence that 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.
_______________________________ SHELBY W. TURNER, Commissioner