CLAIM NO. E303056
Before the Arkansas Workers’ Compensation Commission
ORDER FILED MARCH 6, 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 in June of 1953. He last worked for the respondent on April 13, 1992 and retired on May 1, 1994. 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 January 23, 1991, in light of the evidence that the claimant’s hearing impairment improved after an audiogram performed on that date. We also found that the claimant was made aware of his January 23, 1991 audiogram results, which he signed, and that a preponderance of the evidence therefore establishes that the claimant’s degree of hearing loss measured on January 23, 1991 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 hearing impairment that existed on January 23, 1991 became time barred when no claim was filed by January 23, 1993.
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 their 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.”, 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. 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 Okay. Did anybody at the company ever tell you that you had some kind of hearing loss as a result of your work at the company?
A No one had ever told me that I had a hearing loss from the work at the company. The nurses at the dispensary told me I needed to go see a ear, and throat, and nose at that time.
Q When was that?
A I can’t tell you the date, sir, I don’t exactly know.
Q All right. But this was a nurse at the company dispensary?
A Right.
Q All right. Tell us about that conversation.
A She said that — after I took my hearing test, she said, “You need to go see a nose, throat, and ear specialist,” and I said, “Well, are you going to pay for it, if I have to have a hearing aid?” and she said, “Not that I know of,” and I said, “Well, you are if I can get you to pay for it, because the hearing didn’t just happen overnight, you know.”
Q Okay. And what did she say?
A And so that was the end of the conversation. (P. 8 L. 7 — P. 9 L. 3)
* * *
Q And how is it that you came to go to Dr. Winston’s office to have that test done?
A Well, the people that had this hearing before you all took over, they the one that called me and told me to go up there and have a hearing test, and ALCOA would pay for it, but when I got up there, I took the hearing test, but ALCOA didn’t pay for it. I had to take the insurance and pay for the hearing test myself.
Q Okay. Did any supervisor ever tell you that you had noise induced hearing loss, that is, that your hearing loss was a result of noise at work?
A Not that I can remember, no.
Q Did anybody at the dispensary, anybody who gave you a test, Mr. Fullington — do you remember Mr. Fullington?
A Yes.
Q Did he ever tell you that?
A Not that I can recall.
Q Did Ms. Whittington, who also gave some of the tests, did she ever tell you that?
A Well, I’m pretty sure her, or one of the nurses one told me I needed to come to Little Rock and have that ear, throat, and nose.
Q Okay.
A But they never told me to go or nothing like that. They just said, “You need to go see one.”
Q All right. And when they told you that, did they tell you it was because of this noise at work that you had been around all these years?
A No. (P. 11 L. 12 — P. 12 L. 15)
* * *
Q Did you get letters from time to time, or did they give you letters from time to time after you took those audiograms?
A I don’t believe they did.
Q Well, this one says . . .
A They might have now.
Q Okay. “Your hearing was checked because of an earlier change in your hearing. The results of that check indicate that the hearing change has been confirmed but not progressed. Since you were not currently exposed to excessive noise levels and to prevent further diminished hearing ability, you are encouraged to wear hearing protection working around noisy off-the-job equipment such as tractors and chain-saws, or while participating in noisy hobbies, such as target shooting.”
A Yeah.
Q At the time that Mr. Fullington signed that 1989 — I think this is the `89 — Document 174, at the time that he signed it and you signed this thing, did he have a discussion with you about this?
A No, I don’t believe he did.
Q Was it that he just asked you to sign it?
A Yeah, something like that, he just put it out there and you signed it. I never read anything like that. They never put nothing in front of me like that for me to read.
Q Which, the one that you signed?
A Right, I never read stuff like that.
Q You just signed it?
A Yes, they put it out there, and you signed it. They never said, “Look at this. This is what we got.”
Q Okay. Now, Mr. Carroll also asked you, were you made aware that noise could cause permanent damage. When were you made aware of that, and how were you made aware of it?
A Again, I would say, I don’t know, I couldn’t pinpoint an exact date. I would probably say, half of my time — about half of my time I spent at ALCOA.
Q Well, did somebody tell you out there? Did some company official tell you out there that noise could cause permanent damage to your hearing?
A I’m sure they did, but I couldn’t tell you when or who right now. (P. 20 L. 3 — P. 21 L. 18)
We note that the hearing record contains copies of letters addressed to the claimant dated June 18, 1989, February 21, 1990, January 16, 1992, and February 23, 1993, each stating, in part, that the claimant was not presently exposed to excessive noise levels on the job. The claimant’s July 20, 2000 brief to the Full Commission argues that the information contained in the June 18, 1989 letter is false, and that the false information misled Mr. Cook into believing that any hearing loss he suffered was probably not job related.
On these points, we initially note that the claimant has failed to testify as to what noise exposure, if any, that he had in 1989, 1990, 1992, or 1993 when the letters were prepared. Clearly, it was not even possible for the claimant to be receiving work-related noise exposure after he stopped working on April 13, 1992. Furthermore, the claimant’s hearing testimony indicates that he has no independent recollection of ever even receiving the letters in question, and the claimant’s hearing testimony indicates that he began wearing hearing protection before 1989. On this record, the claimant has failed to establish by a preponderance of the evidence of record that the letters in question contain false or misleading information, or that the claimant relied on any information in these letters in waiting until March 2, 1993 to file his claim.
In fact, 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 misled Mr. Cook about the cause and severity of his hearing loss, or that Mr. Cook 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, there appears to be 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. In addition, the claimant failed to indicate at the hearing whether the claimant was even aware that other employees had received the letter cited in the claimant’s brief. Under these circumstances, where the claimant presented no evidence that he was 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. Cook to act upon or which Mr. Cook had any right to believe Alcoa intended him to act upon. To the contrary, a preponderance of the evidence fails to establish that the claimant was even aware that the letters were sent, and under these circumstances, the claimant has therefore also failed to establish that Mr. Cook 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 establish 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
______________________________ JOE E. YATES, 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 that a preponderance of the evidence fails to support a finding 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 informed claimant that his hearing was impaired, the reports never mentioned work-related or occupational noise as a possible cause of this loss. Interestingly, the reports do list measles, mumps, and noisy hobbies. Overall, respondent’s communications with this claimant were designed to obscure occupational noise as a possible cause of his hearing loss.
In my opinion, the evidence does not support a finding 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