Opinion
CLAIM NO. E303198
ORDER FILED FEBRUARY 7, 2001
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.
Respondent represented by the HONORABLE PHILLIP CARROLL, Attorney at Law, Little Rock, Arkansas.
ORDER
A majority of the Full Commission has previously found that the respondent failed to prove by a preponderance of the evidence that the present claim is barred by the statute of limitations; that the claimant proved by a preponderance of the evidence he sustained hearing loss causally related to his employment with the respondent; and that the claimant proved by a preponderance of the evidence that amplification devices are reasonably necessary for treatment of his compensable injury. This matter now comes before the Full Commission on remand from the Arkansas Court of Appeals for additional findings on the statute of limitations issue in light of the decision in Minnesota Mining Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).
After conducting a de novo review of the entire record, we find that the respondents have failed to establish by a preponderance of the evidence that the claimant's award of amplification devices is barred by the two-year statute of limitations.
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. The record also indicates that the claimant underwent an audiogram on December 3, 1990, and that the audiogram performed on December 3, 1990 was the last audiogram that the claimant underwent more than two years prior to the date that he filed his claim.
The preponderance of the evidence also indicates that the claimant was made aware of his December 3, 1990 audiogram test results, which he signed, and therefore, a preponderance of the evidence establishes that the claimant's degree of hearing loss measured on December 3, 1990 became apparent to the claimant more than two years prior to the date that he filed his claim on March 2, 1993. However, the claimant's December 3, 1990 audiogram indicates the same 0.0% hearing impairment rating under the AMA Guides formula that the claimant was experiencing after he filed his claim on March 2, 1993.___
We have previously awarded the claimant hearing aids based on Dr. Daniel Orchek's expert medical testimony indicating that the claimant's hearing loss after his claim was filed was of a nature and extent sufficient to require hearing aids. Notably, while the claimant's hearing impairment as calculated using the AMA Guides formula has remained 0.0% using the frequency range of 500-3000 Hz, the claimant has experienced sufficient high frequency hearing loss for Dr. Orchek to conclude that hearing aids are appropriate. We also note that the claimant's December 28, 1993 audiogram indicates some degree of overall increased threshold shift, particularly in the higher frequencies, as compared to the claimant's December 3, 1990 and earlier audiograms. Whether the claimant's hearing loss might have been sufficient to require a need for hearing aids two years prior to the date that the claimant filed his claim is a medical question, and there are no medical opinions in the record indicating that the claimant's hearing loss was sufficient to require hearing aids more than two years prior to the date the claimant filed his claim for benefits, or to indicate that the claimant's additional hearing loss beginning two years prior to the date he filed his claim was insufficient to cause a need for hearing aids. Under these circumstances, we find that the respondents have failed to establish by a preponderance of the evidence that the claimant's claim for hearing aids is barred by the statute of limitations.
In reaching our decision, we note that the claimant has made an argument in his brief on remand that the respondents should be estopped from relying on the statute of limitations. However, our review of the administrative law judge's decision and the hearing transcript in this case indicates that the claimant did not raise any estoppel theory at the hearing before the administrative law judge. All legal and factual issues should be developed at the hearing before the administrative law judge.See, Ester v. National Home Centers, Inc., 61 Ark. App. 91, 967 S.W.2d 565 (1998). Under similar circumstances, this Commission has previously declined to consider an estoppel theory raised for the first time on appeal before the Full Commission. See, Elmore v. Crites Tackett Tree Service, Full Workers' Compensation Commission Opinion filed May 18, 1999 (W.C.C. No. E806504);Lawrence v. Sunbeam Outdoor Products, Full Workers' Compensation Commission Opinion filed June 3, 1998, (W.C.C. No. E704127). In the present case, as in Elmore and Lawrence, we find that the claimant's estoppel theory was not properly raised before an administrative law judge and therefore, not appropriately preserved for consideration in this appeal. Accord Teague v. C J Chemical Co., 55 Ark. App. 335, 935 S.W.2d 605 (1996). In addition, since we find that the respondents have failed to establish that the statute of limitations bars the claimant's award of benefits, we find that the claimant's estoppel argument is moot.
Finally, to the extent that Commissioner Wilson's concurring and dissenting opinion revisits the compensability issue, and makes arguments that the claimant's hearing loss was not work related, we point out that this case was remanded for additional findings on the statute of limitations issues, not the compensability issue.
IT IS SO ORDERED.
_______________________________ ELDON F. COFFMAN, Chairman
_______________________________ MIKE WILSON, Commissioner
I respectfully concur in part and dissent in part from the majority's opinion in this claim. Specifically, I concur in the majority's finding that the statute of limitations limits the claimant's claim to the hearing impairment sustained during the two years prior to the filing of his claim for benefits. I also concur in the finding that the claimant's estoppel theory was not properly raised before an Administrative Law Judge and, therefore, was not preserved for consideration in this appeal. However, I must dissent from the majority's finding that the statute of limitations does not bar the claimant's claim for hearing aids. In my opinion, the respondents proved that the claimant's claim for hearing aids is barred by the statute of limitations.
With regard to compensability, it remains my opinion that the claimant has failed to prove that his hearing loss is work-related. See, Sammy B. Robbecke v. Alcoa, Full Workers' Compensation Commission filed March 11, 1998 (Claim No. E303198). The claimant's audiogram revealed a 0% hearing disability. The claimant has high frequency hearing loss and his baseline audiogram performed before the claimant was hired by the respondent clearly indicated that this was a pre-existing condition. Dr. Winston offered evidence that the claimant's high frequency loss was more than likely related to the claimant's military training and hunting. The claimant's own testimony indicated that he always implemented hearing protection since he began working for the respondent. If the claimant had pre-existing high frequency loss at the time of this claim, I cannot find that the claimant has proven by a preponderance of the evidence that any high frequency hearing loss is causally related to his employment.
Therefore, I concur in part and dissent in part from the majority opinion.
______________________________ MIKE WILSON, Commissioner
______________________________ SHELBY W. TURNER, Commissioner
I concur with the finding in the principal opinion that respondent has failed to prove by a preponderance of the evidence that this claim for hearing aids is barred by the statute of limitations. However, I do not entirely agree with the Chairman's interpretation of the Arkansas Supreme Court's decision inMinnesota Mining Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). For my view of the Court's decision and the law as it applies to statute of limitations case involving gradual onset, scheduled injuries, see my concurring and dissenting opinion inCarol Carlisle v. Alcoa, Full Commission Opinion filed February 7, 2001 ( E303043).
______________________________ SHELBY W. TURNER, Commissioner