Opinion
CLAIM NO. E303128.
ORDER FILED OCTOBER 9, 2000.
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondent represented by the HONORABLE PHILLIP CARROLL, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed as modified.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the administrative law judge on February 17, 1999. In that opinion and order, the administrative law judge found that the claimant has sustained a 41.3% hearing loss causally related to his employment with Alcoa. In addition, the administrative law judge found that the statute of limitations is not a bar to the present claim, and the administrative law judge found that the claimant is therefore entitled to permanent partial disability benefits for a hearing loss of 41.3%.
After conducting a de novo review of the entire record, we find that the claimant has proven by a preponderance of the evidence that he sustained a 41.3% noise-induced hearing loss causally related to his employment. Therefore, we find that the administrative law judge's decision in this regard must be affirmed. Of that 41.3% hearing loss, we find that a preponderance of the evidence establishes that a 28.8% permanent hearing loss had developed and became apparent to the claimant at the point in time two years before he filed his claim for benefits. Consequently, we find that the statute of limitations bars the claimant's claim for benefits related to the 28.8% permanent hearing loss that had developed and become apparent to the claimant at the point two years prior to the date the claimant filed his claim. Therefore, we find that the claimant is entitled to benefits only for the 12.5% work-related hearing loss which developed and became apparent after the claimant sustained the 28.8% hearing impairment barred by the statute of limitations. Therefore, we find that the administrative law judge's award of benefits must be affirmed as modified.
The claimant went to work for Alcoa in July of 1953, and continued working for the respondents for approximately 45 years, until November of 1997. The claimant began work in the labor pool and transferred into maintenance in about 1963. The claimant worked in all parts of the plant, including ball mills, crusher mills, and areas involving jack hammers. The documentary evidence indicates that noise levels exceeding 90 dBA cause hearing loss for persons with normal hearing, but that persons who already have hearing loss are more susceptible to noise, and that noise levels exceeding 85 dBA are considered harmful to their hearing. Further, Terry Whitley, Alcoa's senior safety specialist, testified that Alcoa's records indicate that the highest noise levels were at one time 110 dBA, 115 dBA and even higher levels. More recently, Mr. Whitley estimates mill noise at approximately 105 dBA, and jack hammers at 100 to 110 dBA.
It has been argued at the hearing and on appeal that the claimant's hearing loss is attributable to age, ear wax impaction and ear infection. In assessing this argument, we note that the claimant's sequential audiograms in the record indicate a gradually increasing binaural hearing impairment. This Commission has previously taken into account such potential hearing loss factors where expert medical evidence indicated that such an adjustment was appropriate. In the present case, however, the record does not contain any expert medical evidence opining that the claimant's documented binaural hearing impairment should be adjusted any percentage for age or other factors, and the September 15, 1993 office note of Dr. Russell Burton, the plant physician, indicates that the claimant has very significant noise induced hearing loss of both ears. The claimant testified that he is not exposed to any loud machinery away from work, that he does not hunt, and that he has never been in the military. In light of the claimant's testimony that he is not exposed to loud machinery away from work, Dr. Burton's report indicating that the claimant has very significant noise-induced hearing loss in both ears, the claimant's testimony regarding his exposure to loud machinery and equipment at work, and Mr. Whitley's testimony regarding the approximate noise levels in various areas of the plant, we find that a preponderance of the evidence in the record indicates that the claimant's entire 41.3% binaural hearing loss was caused by noise exposure at Alcoa.
Arkansas Code Annotated § 11-9-702(a)(1) provides that a claim for compensation for disability on account of injury shall be barred unless filed with the Commission within two years from the date of injury. For gradual-onset noise-induced hearing loss, the statute begins to run when the hearing loss becomes apparent to the claimant. Minnesota Mining Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).
In Baker, the injured worker became aware of his hearing loss in February of 1978, and because his hearing did not continue to deteriorate thereafter, his claim became time barred in February of 1980, some 12 years before he filed his claim.
In the present case, the claimant filed his claim on March 2, 1993, and unlike the worker in Baker, the claimant in the present case did experience a gradual deterioration of his hearing both before and after he filed his claim on March 2, 1993. In this regard, the claimant's audiograms establish the following degrees of hearing impairment upon testing in the indicated years:
YEAR PERCENT IMPAIRMENT
1975 17.5%
1983 30%
1984 26.9%
1988 40.3%
1991 28.8%
1992 33.8%
1993 (1) 39.4%
1993 (2) 37.5%
1993 (3) 41.6%
1994 (1) 35.6%
1994 (2) 40%
1995 (1) 41.6%
1995 (2) 41.6%
1995 (3) 41.3%
The preponderance of the evidence indicates that the claimant was made aware of his January 24, 1991 audiogram test results, which he signed, and therefore, a preponderance of the evidence establishes that the claimant's degree of hearing loss measured on January 24, 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 find that any claim for benefits for the 28.8% hearing impairment that existed on January 24, 1991, became time-barred when no claim was filed before January 24, 1993.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant is entitled to benefits for a 12.5% hearing impairment. Therefore, the decision of the administrative law judge must be affirmed as modified.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the administrative law judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996). For prevailing in part on this appeal before the Full Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
_______________________________ ELDON F. COFFMAN, Chairman
Commissioner Humphrey concurs in part and dissents in part.
I concur with the findings in the principal opinion that claimant has sustained at least a 41.3% hearing loss and that the entire amount of hearing loss is causally related to his employment with Alcoa. However, I must respectfully dissent from the finding that 28.8% of claimant's hearing loss is barred by the statute of limitations, thereby entitling claimant to benefits for a hearing loss of only 12.5%.
In Minnesota Mining Mfg. v. Baker, 337 Ark. 94, 987 S.W.2d 151(1999), the Arkansas Supreme Court noted that Arkansas is technically a "compensable injury" state and found that a scheduled injury does not become compensable until (1) the injury develops or becomes apparent, and (2) the claimant suffers a loss in earnings on account of the injury, which loss is conclusively presumed. Therefore, the statute of limitations with respect to scheduled injuries begins to run when the injury develops or becomes apparent to claimant because the loss of wage earning capacity is conclusively presumed. Additionally, the Court stated that claimant became aware of his hearing loss in February 1978 and the statute began to run in February 1978 "because his hearing did not continue to deteriorate." This seems to indicate that the statute of limitations does not began to run until the injury develops or becomes apparent and the injury has stabilized or does "not continue to deteriorate."
In the present case, the evidence indicates, and the principal opinion finds, that claimant "did experience a gradual deterioration of his hearing both before and after he filed his claim on March 2, 1993." I concur with this finding. Therefore, the statute of limitations had not even begun to run at the time claimant filed this claim for benefits. Accordingly, claimant is entitled to benefits commensurate with his entire hearing loss.
For the foregoing reasons, I concur in part and respectfully dissent in part.
______________________________ PAT WEST HUMPHREY, Commissioner
Commissioner Wilson concurs in part and dissents in part.
I concur with the majority opinion that the statute of limitations limits claimant's claim to the hearing impairment sustained during the two years prior to the filing of his claim for benefits. However, I must respectfully dissent from the majority opinion finding that claimant's 12.5% hearing loss sustained during the two years prior to the filing of the claim was wholly caused by his employment. It is my opinion that claimant failed to prove that the 12.5% hearing loss was caused by his employment, especially in light of his age, history of difficulties with ear wax impaction and ear infections, and the improvements in noise reduction and hearing protection at respondent's facility.
_________________________ MIKE WILSON, Commissioner