CLAIM NO. E303249
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 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 present claim is not barred by the statute of limitations. In addition, we find that the claimant failed to prove by a preponderance of the evidence that he sustained any compensable permanent impairment to his hearing capacity under the AMA Guides formula as a result of his employment, and we find that the claimant failed to prove by a preponderance of the evidence that hearing amplification is reasonably necessary for any work-related injury to his hearing that the claimant may have sustained. Therefore, we find that the decision of the administrative law judge must be affirmed. [3] The claimant is a 43-year-old man who began work for the respondent on April 2, 1979, and is still employed. Before beginning work with respondent, the claimant worked out of the Sheet Metal Local in Little Rock. The claimant was not in the military. [4] The claimant’s pre-employment audiogram on March 21, 1979 reflects hearing loss at 4,000 Hz and 6,000 Hz. The claimant worked in the sheet metal department for respondent, which he described as being quite noisy. According to the claimant, he does not hunt nor does he have a workshop. The claimant has a power mower, however his wife and son handle the mowing. [5] The respondent provided hearing tests on a yearly basis. On August 6, 1985, the claimant conferred with Dr. Ramsey and was told to wear hearing protection at all times around noise. In 1990, the claimant was advised to see an ENT specialist. On April 29, 1992, the claimant was sent a certified letter from Dr. Russell Burton advising him that his evaluations reveal that he has a hearing impairment and it most likely is work-related noise exposure. [6] 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. [7] 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. [8] 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. [9] 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. [10] The claimant’s records indicate that the claimant in the present claim had a baseline audiogram on March 21, 1979. This audiogram indicates that Mr. Wise had significant high frequency hearing loss when he was hired at ALCOA at age 49. Periodic audiograms were performed up through January 10, 1994. Dr. Michael Winston opined in an April 6, 1994, report that the claimant’s January 10, 1994, examination revealed normal hearing sensitivity bilaterally through 2,000 Hz with the claimant’s hearing dropping precipitously to a moderate to severe hearing loss level for the frequencies of 3,000 — 8,000 Hz. He also opined that the claimant was not a good candidate for amplification. [11] Dr. Daniel Orchik, an audiologist with the Shay Clinic in Memphis, testified as an expert witness. Dr. Orchik opined that based on the claimant’s work records and his audiograms, his additional hearing loss from 1979 to the present was likely related to exposure to excessive levels of noise in his employment with respondent. However, utilizing the AMA Guidelines, Dr. Orchik found there was no permanent impairment. In addition, Dr. Orchik opined that the claimant’s hearing loss would be hard to fit with amplification devises, although Dr. Orchik recommended trial amplification in each ear. [12] After considering the evidence presented from Dr. Winston and Dr. Orchik, the claimant’s audiograms and all other evidence properly in the record, we find that the claimant has failed to prove by a preponderance of the evidence that he has sustained any compensable permanent impairment to his hearing capacity causally related to his employment or that amplification devices are reasonably necessary for any injury to his hearing capacity sustained to date. In reaching that decision, we note that the claimant does suffer some high frequency hearing loss; however, the evidence also establishes that the claimant had significant high frequency hearing loss which preexisted his employment at the respondent’s facility. Moreover, the claimant’s high frequency hearing loss is not sufficient to cause permanent hearing impairment pursuant to the AMA Guidelines, and we find persuasive Dr. Winston’s opinion that the claimant is not a candidate for hearing amplification. [13] 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. [14] IT IS SO ORDERED.
ELDON F. COFFMAN, Commissioner
[15] Commissioner Humphrey concurs in part and dissents in part. [16] CONCURRING AND DISSENTING OPINION[17] I concur with the finding in the prevailing opinion that this claim is not barred by the statute of limitations and that pursuant to the Guides, claimant has sustained a zero percent permanent anatomical impairment. Further, to the extent the prevailing opinion seems to imply that claimant sustained at least some hearing loss causally related to his employment, I likewise concur. However, I must respectfully dissent from the finding that claimant failed to prove that hearing amplification devices are reasonably necessary. Based on Dr. Orchik’s opinion, I would allow a trial period for the use of hearing aids. [18] PAT WEST HUMPHREY, Commissioner [19] Commissioner Wilson concurs in part and dissents in part. [20] CONCURRING DISSENTING OPINION
[21] 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, March __, 1998, Claim No. E303220, I dissent from the finding that this claim is not barred from the statute of limitations. [22] MIKE WILSON, Commissioner