Kenneth Shepard v. Aluminum Company of America

Arkansas Court of Appeals

Judge Josephine Linker Hart

Not Designated for Publication

Division IV

KENNETH SHEPARD

APPELLANT

V.

ALUMINUM COMPANY OF AMERICA, SELF-INSURED EMPLOYER

APPELLEE

CA01-646

September 4, 2002

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [E303205]

AFFIRMED

Following remand, appellant Kenneth Shepard again seeks reversal of the Workers' Compensation Commission's decision, which held that the statute of limitations barred his claim for a job-related hearing impairment, and further, that appellee was not estopped from asserting the statute of limitations as a defense. We disagree and affirm.

Appellant was employed by Aluminum Company of America (ALCOA) from June 1953 until his retirement in September 1990. During his thirty-seven years of employment with appellee, appellant was administered several audiograms that measured his hearing capability. In 1990 two audiograms were performed. On February 27, 1990, appellant signed an audiogram report depicting his performance. The report noted, directly above his signature, that he was "hearing impaired." On May 31, 1990, appellant signed a similar report that again advised him of his hearing impairment. More than two years later, onMarch 2, 1993, appellant filed a claim for workers' compensation benefits.

Initially, the Commission awarded benefits to appellant for his hearing loss on March 11, 1998. However, this court reversed and remanded the case to the Commission for additional finding of facts and further review as was necessitated by our supreme court's decision in Minnesota Mining & Manufacturing. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). On remand, the Commission held on February 7, 2001, that appellant's claim for benefits was barred by the two-year statute of limitations. Further, the Commission concluded that appellant did not raise an estoppel theory at the hearing before the administrative law judge, and therefore, it was not preserved for appeal. Following appellant's appeal of that decision, we agreed that appellant had preserved his estoppel argument and remanded the case for further factual development. Shepard v. Aluminum Co. of America, 76 Ark. App. 292, 64 S.W.3d 786 (2002).

On remand, the Commission rejected appellant's estoppel argument and found that he failed to establish that appellee had misled him or that he had relied on appellee's words or conduct when he delayed filing his claim for benefits. From that order comes this appeal.

We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission and will affirm the Commission's decision if it is supported by substantial evidence. See Ark. Code Ann. § 11-9-7119(b)(4)(d) (Repl. 1996); Spencer v. Stone Container Corp., 72 Ark. App. 450, 38 S.W.3d 909 (2001); Superior Indus. v. Thomaston, 72 Ark. App. 7, 32 S.W.3d 52 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to sustain a conclusion. Woodallv. Hunnicutt Const., 340 Ark. 377, 381, 12 S.W.3d 630, 633 (2000) (citing Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.3d 151 (1999)). On review of workers' compensation cases, "the question is not whether the evidence would have supported findings contrary to the ones made by the Commission; there may be substantial evidence to support the Commission's decision even though we might have reached a different conclusion if we sat as the trier of fact." Id..

First, appellant argues that the Commission's decision that the statute of limitations bars his claim for job-related hearing loss is not supported by substantial evidence. In Minnesota Mining & Manufacturing v. Baker, supra, our supreme court held that in work-related, noise-induced hearing-loss claims, the statute of limitations begins to run when the hearing loss becomes apparent to the claimant. The defendant has the burden of affirmatively pleading the defense if the running of the statute of limitations is raised as a defense. Johnson v. Arthur, 65 Ark. App. 220, 986 S.W.2d 874 (1999).

The Commission found that appellant suffered a 43.4 percent hearing impairment that had developed and was apparent to him more than two years before he filed his claim for benefits. Therefore, the statute of limitations bars appellant's claim for benefits. Arkansas Code Annotated section 11-9-702(a)(1) (Repl. 2002) 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 the injury.

Appellant last worked for appellee in September of 1990. On February 27, 1990, and again on May 31, 1990, appellant was administered audiograms, and the reports from bothexaminations indicated that appellant was "hearing impaired." Appellant's signature appears directly below the notation that he was "hearing impaired." Further, appellant acknowledged in his testimony that he knew he "couldn't hear." Thus, we hold that substantial evidence supports the decision of the Commission that his claim was barred by the statute of limitations.

Finally, appellant argues that the Commission erred in rejecting the merits of his estoppel argument.1 Appellant argues that appellee should be estopped from asserting the statute of limitations as a defense because:

[t]he record is replete with evidence supporting a conclusion that ALCOA withheld relevant information regarding a high risk of noise-induced hearing-loss injury to plant employees and further conveyed ambiguous and misleading information to employees regarding the nature, extent and cause of changes in the hearing ability reflected by their hearing test results.

Appellant's testimony is inapposite to this argument. He acknowledged that he attended safety meetings and received instruction on the use of hearing protection. Further, appellant testified that he was neither told by a supervisor nor did he receive a letter to the effect that his hearing impairment was a result of exposure to noise. However, appellant did receive a letter regarding his hearing test performance, dated February 27, 1990, from doctors at the Arkansas Operations Medical Department. This letter suggested, among other things, that he use hearing protection in noisy areas at work and away from work. Appellanttestified that he was not concerned about his hearing after receiving this letter because he was aware that he could not hear.

Estoppel is an equitable doctrine used to prevent a party from prevailing on purely technical grounds after having acted in a manner that indicated the opposing party's strict compliance would not be required. INA/CIGNA Ins. Co. v. Simpson, 27 Ark. App. 222, 772 S.W.2d 353 (1989). The four necessary elements of estoppel are:

(1) the party to be estopped must know the facts; (2) he must intend that his or her conduct shall 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; and (4) must rely on the former's conduct to his or her injury.

Smith v. Aluminum Co. of Am., 78 Ark. App. 15, 18, 76 S.W.3d 909, 912 (2002) (citing Miller County v. Opportunities, Inc., 334 Ark. 88, 96, 971 S.W.2d 781, 786 (1998).

Although appellant asserts that his delay in filing the claim was based in part on appellee's misrepresentations, he fails to provide evidence of misrepresentations made by appellee. Therefore, we cannot find that appellee misled appellant about the cause or severity of his hearing loss. Neither do we find that appellant relied on any conduct of appellee in waiting for more than two years to file his claim for benefits after receiving notice of his hearing loss. The evidence demonstrates that appellant was aware of the results of the 1990 audiograms indicating that he suffered a hearing impairment, and despite this knowledge, he failed without explanation to assert a claim for more than two years.2

We conclude that there was substantial evidence to support the Commission's finding that the doctrine of estoppel was not applicable in this case because appellant failed to present any evidence to support his assertion that appellee misled him as to the cause and severity of his hearing loss or that he relied on those misrepresentations to his detriment.

Affirmed.

Stroud, C.J., and Robbins, J., agree.

1 The Commission's order addressing appellant's estoppel argument is not in the addendum of his brief as required by Arkansas Supreme Court Rule 4-2(a)(7). However, the order is contained in the supplemental record. Thus, we are authorized to go to the record to affirm. Hosey v. Burgess, 319 Ark. 183, 890 S.W.2d 262 (1995); Haynes v. State, 314 Ark. 354, 862 S.W.2d 275 (1993).

2 Appellant relies on Snow v. Alcoa, supra. In Snow, this court held that the claimant's supervisor erroneously told him that he would be ineligible to receive post-retirement workers' compensation benefits, and Snow was justified in his reliance upon his supervisor. In the present case, there is no evidence that appellant relied on any words or conduct of appellee.