CLAIM NO. E303054
HOWARD L. COLLIER, 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 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 64-year-old man who began work for the respondent on January 15, 1968 and retired from respondent on February 1, 1994. Before beginning work with respondent, the claimant worked for U.S. Borax about 18 years and worked construction for Kaufman Electric. The claimant also has hunted using a 30.06 weapon and a .12 gauge shotgun; however, he testified that he uses hearing protection when hunting or target practicing. The claimant testified that he has a shop at home with a table saw and a Skil saw which he rarely uses. According to the claimant, he uses a power mower about three times a year. His first audiogram was on January 11, 1968, which revealed some hearing loss in the right ear at 3,000 Hz and in the left ear at 4,000 Hz. The claimant worked as an electrician for the respondent, working around loud generators, motors, and grinders. He also testified that he worked in the Sinter Plant, one of the noisiest areas in the facility. [4] The respondent provided hearing tests on a yearly basis. The claimant signed a notice on April 15, 1985 that stated at a recent hearing check he exhibited an average change of 10 decibels or greater at sound frequencies sensitive to high noise levels. The claimant reported in 1988 that he heard high pitched sounds at times. According to the claimant, in 1993, he was advised to get some tests because of hearing loss and that was the first time he realized that he might have noise-induced hearing loss. [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 March 2, 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 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 January 11, 1968. [11] Dr. Michael Winston opined in an March 28, 1994, report that the claimant’s January 11, 1994, examination revealed a mild to moderate sensorineural hearing loss above 2,000 Hz bilaterally. He also opined that the claimant was not a good candidate for amplification. [12] Dr. Daniel Orchik, an audiologist with the Shay Clinic in Memphis, testified as an expert witness. Dr. Orchik testified that the claimant’s binaural hearing impairment using the AMAGuides was 1% and it was his opinion that the claimant’s hearing loss was related to his employment with the respondent. He also opined that the claimant would benefit from amplification. In assessing the weight to be accorded Dr. Orchik’s opinion regarding compensability, however, we note that the claimant is a hunter and that his left side hearing loss is significantly greater than his right side hearing loss. In this regard, we note that Dr. Orchik acknowledged that a person who experiences hearing loss from shooting firearms is likely to experience greater loss in the left ear if the person shoots right handed, but occupational noise induced hearing loss is more likely to cause essentially equal degrees of hearing loss in each ear. In addition, we note that the claimant’s 1968 pre-employment audiogram indicated some minor loss in both ears. [13] After considering the atypical pattern of the claimant’s hearing loss in light of the evidence that the claimant is a hunter, and in light of Dr. Orchik’s explanation regarding anticipated firearm-related hearing loss (left greater than right), we find that the claimant has failed to prove by a preponderance of the evidence that his hearing loss is causally related to his employment. [14] 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. [15] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman
[16] Commissioner Humphrey concurs in part and dissents in part. [17]
CONCURRING AND DISSENTING OPINION [18] 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 at least some hearing loss (even if no more than 1%) 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. [19] PAT WEST HUMPHREY, Commissioner [20] Commissioner Wilson concurs in part and dissents in part. [21]
CONCURRING DISSENTING OPINION [22] 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 inRevies L. Stacey v. ALCOA, Full Commission Opinion, January __, 1998, Claim No.
E303220, I dissent from the finding that this claim is not barred from the statute of limitations. [23] MIKE WILSON, Commissioner