CLAIM NO. E303224
DWAYNE L. STILL, EMPLOYEE, CLAIMANT v. ALCOA, SELF-INSURED EMPLOYER, RESPONDENT 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 the HONORABLE 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 52-year-old man who began work for the respondent on November 7, 1972 and worked continuously until July 1, 1991, when he was laid off because of a reduction in force. He worked for respondent at the Point Comfort, Texas facility until August 15, 1994, when he returned to respondent at the Bauxite facility where he is still employed. Before beginning work with respondent, the claimant worked about one year for Sterling Stores in the warehouse, about ten years for Curtis Mathes Plant in inventory control, about five months for Wrape Stave Company, and about one month for Modern Sleep Company. The claimant was also in the Army National Guard where he fired an M-1 and M-14. His pre-employment audiogram on November 3, 1972 reflected hearing loss from 2,000 Hz and upward in the right ear and at 6,000 Hz in the left ear. The claimant worked in a number of noisy areas for respondent such as the Sinter Plant performing scaling as well as firing the shotgun at the fusion ring. According to the claimant, he does hunt occasionally and uses a .12 gauge shotgun. The claimant does not have a workshop but does operate a power mower with a muffler. [4] The respondent provided hearing tests on a yearly basis. The claimant indicated that he was aware of a hearing impairment for more than five years. On December 31, 1985, the claimant was sent a certified letter advising him that he had exhibited an average change of ten decibels or greater at sound frequencies sensitive to high noise levels. On November 25, 1991, the claimant signed an audiogram below the printed words “hearing impaired.” [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 nosie induced hearing loss. [10] The claimant’s records indicate that the claimant in the present claim had a baseline audiogram on November 3, 1972. Periodic audiograms were performed up through December 20, 1993. Dr. Michael Winston opined in an April 6, 1994, report that the claimant’s April 6, 1993, examination revealed bilateral sensorineural hearing loss that is mild for the frequencies of 250 — 2,000 Hz and increasing to a moderate to severe level for the frequencies of 3,000 — 8,000 Hz. He also opined that the claimant was a candidate for binaural amplification. Dr. Winston did not give an opinion on whether he believed the claimant’s hearing loss was work related or not. [11] Dr. Daniel Orchik, an audiologist with the Shay Clinic in Memphis, testified as an expert witness. Dr. Orchik opined that the claimant’s most recent audiogram showed his right ear is unchanged from 1972 and his left ear has changed but only at 3,000 and 4,000 Hz. Given that information, Dr. Orchik would not express an opinion regarding a causal relationship between noise exposure with respondent and the claimant’s hearing impairment. Dr. Orchik concluded that it is quite unusual for an industrial manufacturing environment to affect one ear and not another. After considering the nature of the claimant’s hearing loss, Dr. Orchik’s testimony in that regard, and all other evidence properly in the record, we find that the claimant has failed to prove by a preponderance of the credible evidence that he sustained hearing loss causally related to his employment with respondent. [12] 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. [13] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman
[14] Commissioner Humphrey concurs in part and dissents in part. [15]
CONCURRING AND DISSENTING OPINION [16] While I concur with the finding in the principal opinion that this claim was 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. [17] PAT WEST HUMPHREY, Commissioner [18] Commissioner Wilson concurs in part and dissents in part. [19]
CONCURRING DISSENTING OPINION [20] 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. [21] MIKE WILSON, Commissioner