Aluminum Company of America v. Carol L. Loy

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION I

CA01-639

JANUARY 9, 2002

ALUMINUM COMPANY OF

AMERICA, SELF-INSURED AN APPEAL FROM THE ARKANSAS

EMPLOYER WORKERS' COMPENSATION

APPELLANT COMMISSION [E303147]

v.

CAROL L. LOY

APPELLEE REVERSED

After remand1, appellant Aluminum Company of America (ALCOA) brings this second appeal from an order of the Workers' Compensation Commission (Commission) finding: (1) that ALCOA failed to prove by a preponderance of the evidence that appellee Carol Loy's claim for hearing aids was barred by the statute of limitations; and (2) that Loy's hearing loss was causally related to his employment with ALCOA. On remand, the Commission also found that the two-year statute of limitations barred Loy's hearing lossclaim, however, he does not raise this issue on appeal. On appeal, ALCOA argues that:

[t]he Commission erred in holding that an increase in threshold shifts in higher frequencies in claimant's right ear shown in his December 9, 1993 audiogram, as compared to the claimant's August 31, 1990 audiogram justified the finding that ALCOA be required to purchase hearing aids, and that ALCOA had the burden of proving by a preponderance of the evidence that Loy's hearing loss was sufficient more than two years before he filed his claim to require hearing aids. If Loy's claim for hearing loss is barred by the statute of limitations, his claim for amplification devices to reduce that handicap is also barred by the statute of limitations.

ALCOA also argues that the Commission erred in holding that only medical testimony may be considered on the issue of causation. We reverse.

Loy began working for ALCOA on May 17, 1954, and retired on December 31, 1993. ALCOA administered periodic audiograms to its employees. A baseline audiogram was administered to Loy in August 1957. Loy was informed by ALCOA as early as 1984 that there was some deterioration of his hearing in the high-frequency range. The results of audiograms administered in 1990 and 1992, which were signed by Loy, indicated that he is hearing impaired. Loy filed a claim for workers' compensation benefits on March 2, 1993. A December 9, 1993, audiogram indicates that Loy has an impairment of 2.2% pursuant to the AMA Guides.

ALCOA now appeals from the decision of the Commission that found it was required to provide Loy amplification devices because ALCOA failed to prove that Loy's claim for the devices was barred by the statute of limitations. In ordering ALCOA to provide hearing aids to Loy, the Commission stated:

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 claimwas filed was of a nature and extent sufficient to require hearing aids. While the claimant's hearing impairment as calculated under the AMA Guides formula remained the same at 2.2% between 1990 and 1993, we note that the claimant's December 9, 1993 audiogram indicates some degree of overall increased threshold shifts, particularly in the higher frequencies in the claimant's right ear, as compared to the claimant's August 31, 1990 audiogram. 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.

The Commission erroneously shifted the burden of proof to ALCOA; therefore, we reverse the decision of the Commission. We base our decision upon the opinion rendered in the companion case, ALCOA v. Rollon, 75 Ark. App. , S.W.3d (Dec. 19, 2001).

This memorandum opinion is issued pursuant to our per curiam opinion, In re: Memorandum Opinions, 16 Ark. App. 301, 700 S.W.2d 63 (1985).

Reversed.

Stroud, C.J., and Hart, J., agree.

1 The Commission originally found that appellee's claim was not barred by the statute of limitations and awarded appellee benefits for hearing loss. In an unpublished opinion, dated June 16, 1999, ALCOA v. Carol L. Loy, CA 98-640, this court reversed and remanded the case to the Commission for further proceedings in light of our supreme court's decision in Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). In that case, the supreme court held that the two-year statute of limitations was applicable to work-related noise-induced hearing loss and began to run when the hearing loss becomes apparent to the claimant.