James Moss v. International Paper Company

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

ANDREE LAYTON ROAF, JUDGE

DIVISION III

JAMES MOSS

APPELLANT

v.

INTERNATIONAL PAPER COMPANY

APPELLEE

CA01-114

OCTOBER 10, 2001

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E310521]

AFFIRMED

This case involves a claim for Workers' Compensation benefits for a job-related hearing loss. James Moss appeals from the Commission's decision finding that his claim filed in 1993 was barred by the two-year statute of limitations because he had become aware of his hearing loss no later than 1988. On appeal, Moss argues that the Commission's decision is in error because: (1) he did not have reason to know the nature, severity, and compensable character of his hearing loss until a time within two years of the filing of his claim; (2) false representations made to him by the employer's hearing test technicians should operate to equitably toll the statute of limitations; (3) the Commission misapplied Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999), where, unlike the claimant in Minnesota Mining, his hearing has continued to deteriorate. We affirm.

At the hearing before the Administrative Law Judge (ALJ), Moss, who began working for the appellee International Paper Company (IP) in 1958, stated that he was exposed to noise from the onset of his employment, but beginning in 1978, he was exposed to "a lot of noise." Around this time, Moss testified that IP began giving employees ear plugs and ear muffs to wear while working around loud machinery, placed signs directing employees to wear protection in designated areas, and began giving the employees hearing tests. Moss stated that after undergoing such a test, he received a letter from IP, dated May 22, 1988, that recommended he see a doctor because of his hearing loss. The letter further stated that "this is not related to job-noise exposure." Moss did see a doctor, who confirmed the hearing loss and mentioned that job noise was a possible cause of the loss. Moss testified that his wife also noticed his hearing loss about three to four years before he filed his claim, because he was turning up the volume on the television. Moss also stated that he was in the National Guard for about twenty-two years, and he hunted on occasion. Moss further testified that he did not realize that "hearing" was an injury until he heard other IP employees discussing their hearing-loss claims in about 1992.

The parties stipulated that Moss filed his claim for job-related hearing loss benefits on June 24, 1993, although the record reflects that Moss filed an "Employee's Notice of Injury" on April 6, 1992. The parties further stipulated that, if Moss's claim was not barred by the statute of limitations, he would be entitled to benefits for a 4.4% binaural hearing impairment. They did not stipulate as to when Moss sustained this impairment.

The Commission adopted the ALJ's opinion, and found that Moss's hearing loss became apparent to him in the mid-1980s, when he testified that he began turning up his television volume, or at least by May 22, 1988, when he received the IP letter indicating the hearing loss. Because Moss filed his claim on May 24, 1993, the Commission found that the statute of limitations barredhis claim; Moss appeals from this decision.

On review, we affirm if the ··²SearchTerm²····²SearchTerm²··Commission's decision is supported by substantial evidence. See Ark. Code Ann.§ 11-9-711(b)(4)(D) (Repl. 1996). The Commission's decision is supported by substantial evidence if reasonable minds could have reached the same conclusion. See Spencer v. Stone Container Corp., 72 Ark. App. 450, 453, 38 S.W.3d 909, 911 (2001).

Arkansas Code Annotated section 11-9-702(a)(1)(A) (Repl.1996) is applicable to Moss's claim, and provides:

A claim for compensation for disability on account of an injury, other than an occupational disease and occupational infection, shall be barred unless filed with the Workers' Compensation Commission within two (2) years from the date of the compensable injury. If, during the two-year period following the filing of the claim, the claimant receives no weekly benefit compensation and receives no medical treatment resulting from the alleged injury, the claim shall be barred thereafter.

Moss first argues that his claim is not barred because he did not have reason to know the nature, severity, and likely compensable character of his loss until a time within two years of filing his claim. Moss argues that the Commission's interpretation of Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999), which sets forth the requirements for compensation for hearing loss injuries, is analytically flawed because it read out of the standard the requirement that it must be apparent to the employee that he suffered a work-related hearing-loss injury. Therefore, Moss argues, because he was not aware that his hearing loss was work-related until 1992, the statute of limitations does not bar his claim. This argument is without merit.

First, we cannot agree with Moss's reading of Minnesota Mining, in which the supreme court recently determined when the statute of limitations commences for hearing-loss injury where there has been no work missed or medical expenses incurred on account of the injury. The Court stated: We have held that the time of injury means when an injury becomes compensable, not the date of the accident. Donaldson v. Calvert-McBride Ptg. Co., 217 Ark. 625, 232 S.W.2d 651 (1950). Following this Court's 1950 decision in Donaldson, we held that a claimant's injury did not become a compensable one until he suffered a loss of earnings. Disability, which is compensable under our statute, is based upon incapacity to earn because of injury. Arkansas Louisiana Gas Co. v. Grooms, 10 Ark. App. 92, 661 S.W.2d 433 (1983). For purposes of commencing the statute of limitation under §§ 11-9-702(a)(1), an "injury" is not to be construed as "compensable" until (1) the injury develops or becomes apparent and (2) the claimant suffers a loss in earnings on account of the injury. Thus, the statute of limitation does not begin to run until both elements of the rule are met. Hall's Cleaners v. Wortham, 311 Ark. 103, 842 S.W.2d 7 (1992).

In a majority of jurisdictions, the statute of limitations generally begins to run on a workers' compensation claim for alleged hearing loss when the claimant is aware of his injury and aware that the injury is causally related to the working environment. See 4 Larson, Workers' Compensation Law, App. A-2C-1 (1997). However, Arkansas is technically a "compensable injury" state. Hall's Cleaners, supra.

337 Ark. at 101, 989 S.W.2d at 155. (Emphasis in original.)

The supreme court concluded that, because a hearing loss is a scheduled injury with benefits paid without regard to subsequent earning capacity, the requisite loss of earnings is conclusively presumed. The court then held that the statute of limitations with respect to work-related hearing loss begins to run when the hearing loss becomes apparent to the claimant, clearly departing from the analysis employed by the "majority of jurisdictions."

Moreover, it is clear that Moss was aware that his hearing loss could be work-related years before he filed his claim. Moss's first IP audiogram, taken in 1978, showed a measurable hearing loss. Moss stated that he knew IP was giving hearing tests and requiring hearing protection because "loud noise could damage your ears." Moss testified that his wife brought it to his attention that he was turning up the volume on the television in the mid-1980s. Further, Moss testified that he signedthe May 22, 1988, letter that stated, "Because of hearing loss reported above, you should see a doctor." Although he was vague about the date, Moss stated that he did see a doctor, who mentioned that job noise could be a possible cause of his hearing loss. Thus, Moss acknowledged that he both knew he had a hearing loss and knew that job noise could be related to the loss more than two years prior to the filing of his claim.

Moss next argues that, because a company hearing-test technician told him that his hearing loss documented in May of 1988 was not related to job-noise exposure, the limitations period should be equitably tolled. Although IP contends that Moss failed to raise this argument below, Moss did make this argument to the ALJ, whose opinion was affirmed and adopted by the Commission. With regard to the merits of this argument, the doctrine of equitable estoppel has four necessary elements: (1) the party to be estopped must know the facts; (2) the party to be estopped must intend that his conduct be acted on or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the latter must be ignorant of the true facts; (4) must rely on the former's conduct to his injury. Thompson v. Washington Reg'l Med. Ctr., 71 Ark. App. 126, 27 S.W.3d 459 (2000) (citing 1B Larson's Workmen's Compensation Law §§ 47-53).

Even assuming that Moss established the first two elements, he has failed to establish that he was ignorant of the true facts regarding his hearing loss. While it is true that IP, in the May 22, 1988 letter, stated that his hearing loss was not related to job-noise, Moss testified that he became aware in the late 1970's that work-related noise could cause hearing loss after IP instituted its hearing policies and testing. Furthermore, after receiving the May 22, 1988, letter indicating he had hearing loss, the doctor who checked his hearing indicated to Moss that the loss might be due to job-related noise exposure. Moss was vague about the date of this consultation and testified that it could have been in 1990 or 1991. Nevertheless, the evidence clearly shows that Moss was notignorant of the fact that work-related noise could have caused his hearing loss.

Moss also failed to prove that he relied on IP's conduct to his injury. Moss testified that he concluded that he might have the basis for a workers' compensation claim for his hearing loss in 1992, after hearing other employees talk about their hearing-loss claims; prior to that time, he did not know that hearing loss was a covered injury. In essence, Moss acknowledged that his delay in filing his claim was due to a lack of knowledge that an injury of this kind was covered under workers' compensation laws, not because of the assertion contained in the 1988 letter. In sum, we cannot say that the Commission's decision that the statute of limitations was not tolled is in error, or that there is not substantial evidence to support it.

Lastly, Moss argues that, unlike the claimant in Minnesota Mining, supra, who experienced no additional hearing loss in the intervening fourteen-year period, he continued to experience progressive hearing loss each successive year of his employment. He asserts that because of this distinction, Minnesota Mining provides "implicit support for finding his claim is not time barred." However, Minnesota Mining does not support his assertion; the issue of whether a continued deterioration of work-related hearing would affect the running of the limitations period has not been presented to this court. See ALCOA v. Carlisle, 67 Ark. App. 61, 992 S.W.2d 172 (1999). In any event, Moss did not make this argument before the Commission; therefore, this court cannot reach the merits of this argument. Oak Grove Lumber Co. v. Highfill, 62 Ark. App. 42, 968 S.W.2d 637 (1998). This is readily apparent from the Commission's opinion, where it noted that, although the parties stipulated that Moss was entitled to 4.4% work-related hearing impairment if the statute of limitations did not bar his claim, they did not stipulate as to when Moss sustained the loss. The Commission then stated:

As we interpret the administrative law judge's conclusion in light of the audiogramsand other evidence . . . we understand the ALJ to have concluded that the 4.4% work-related hearing impairment stipulated to by the parties occurred and became apparent to the claimant in the mid-1980's. In reaching this conclusion, we note that the claimant does not assert in his brief on appeal that he experienced the stipulated 4.4% impairment after the mid-1980's. Instead, the claimant argues in his brief that he did not reach a conclusion that his hearing impairment at issue was work related until after the mid-1980's.

The stipulated impairment rating was issued twenty years after Moss began his IP employment, on August 23, 1978. Furthermore, Dr. Joseph Sataloff, a physician who reviewed Moss's medical history and otologic examinations, stated in a April 9, 1992, letter, that Moss's "hearing deterioration since 1971 is, in all likelihood, not related to occupational noise exposure or even exposure to firearms" and was likely attributable to "genetic progressive nerve deafness since the maximum amount of hearing loss that occurs from the type of job he does takes place in the first ten to twelve years of exposure." Accordingly, Moss's claim was not presented or argued to the Commission as a continuing hearing loss, and there is substantial evidence to support the Commission's conclusion that the loss stipulated to had both occurred and became apparent to Moss by the mid-1980s.

Affirmed.

Robbins and Baker, JJ., agree.