Joseph D. Chism v. Aluminum Company of America

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION IV

CA01-655

JUNE 5, 2002

JOSEPH D. CHISM

AN APPEAL FROM THE ARKANSAS

APPELLANT WORKERS' COMPENSATION

v. COMMISSION [E303047]

ALUMINUM COMPANY OF

AMERICA, SELF-INSURED AFFIRMED

EMPLOYER

APPELLEE

In this workers' compensation case, the Workers' Compensation Commission (Commission) originally awarded appellant Joseph Chism benefits for job-related hearing loss, finding that his claim for benefits was not barred by the statute of limitations. ALCOA appealed, and in an unpublished opinion dated June 23, 1999, ALCOA v. Joseph D. Chism, CA 98-785, we reversed and remanded the case to the Commission for additional findings of fact consistent with Minnesota Mining & Manufacturing v. Baker, 337 Ark. 94, 982 S.W.2d 151 (1999). In that case, our supreme court held that the two-year statute of limitations applies to work-related, noise-induced hearing loss and begins to run when the hearing loss becomes apparent to the claimant.

On remand, the Commission found that, in light of the holding in Minnesota Mining & Manufacturing v. Baker, supra, Chism's claim was barred by the statute of limitations, because an August 6, 1990, audiogram indicated that Chism's hearing impairment had developed and became apparent to him more than two years prior to his March 2, 1993, claim for benefits. Chism appealed from that decision, arguing that the Commission's finding that his claim was time-barred was not supported by substantial evidence. Chism also asserted that the Commission erroneously declined to consider his estoppel argument, and that ALCOA should have been estopped from asserting the statute of limitations period as a defense.

On January 9, 2002, we delivered a second unpublished opinion in this case. In that opinion, we agreed with Chism's assertion that his estoppel argument had been raised before the ALJ and was preserved for appeal. Joseph D. Chism v. Aluminum Company of America, CA 01-655, slip op. (Ark. App. Jan. 9, 2002). We did not reach Chism's sufficiency argument pertaining to the statute of limitations. See id.

On remand, the Commission found that Chism had failed to establish that ALCOA was estopped from asserting the statue of limitations. The Commission specifically found that Chism failed to establish that ALCOA had made any false or misleading statements or that he had relied on any conduct by ALCOA in his failure to timely file a workers' compensation claim. Based on its findings, the Commission ruled that Chism failed to establish that ALCOA was estopped from raising the statute of limitations as a defense. Now, in this third appeal, we reach the merits of Chism's arguments. He asserts that theCommission erred in finding that ALCOA was not estopped from relying on the statute of limitations and that the statute of limitations bars his claim. We affirm.

In appeals involving workers' compensation, this court will view the evidence in the light most favorable to the Commission's decision and affirm when that decision is supported by substantial evidence. Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 57 S.W.3d 735 (2001). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Foxx v. American Transp., 54 Ark. App. 115, 924 S.W.2d 814 (1996). Where the Commission denies benefits because the claimant has failed to meet his burden of proof, the substantial evidence standard of review requires us to affirm if the Commission's decision displays a substantial basis for the denial of relief. Hill, supra. A substantial basis exists if fair-minded persons could reach the same conclusion when considering the same facts. Hill, supra. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission's conclusion, we must affirm its decision. Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001).

Chism's first argument on appeal is that the decision of the Commission that the statute of limitations bars his claim for job-related hearing loss is not supported by substantial evidence. Arkansas Code Annotated section 11-9-702(a) (Repl. 1996) mandates that "a claim for compensation for disability on account of an injury other than an occupational disease and occupation infection, shall be barred unless filed with the Commission within two (2) years from the date of the compensable injury." The statute oflimitations with respect to work-related, noise-induced hearing loss begins to run when the hearing loss becomes apparent to the claimant. See Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). When the running of the statute of limitations is raised as a defense, the defendant has the burden of affirmatively pleading this defense. Johnson v. Arthur, 65 Ark. App. 220, 986 S.W.2d 874 (1999). However, once it is clear that the action is barred by the applicable statue of limitations, the burden shifts to the plaintiff to prove by a preponderance of the evidence that the statute of limitations was in fact tolled. Id.

The Commission found that the August 16, 1990, audiogram made it apparent to Chism that he had suffered some form of hearing loss and that in light of the August 16,1990, audiogram, the statute of limitations started running and expired before he filed his March 2, 1993, claim for benefits. The Commission specifically found that the relevant inquiry was when did Chism's hearing loss become apparent to him, and not when did he become aware of the work-related nature of the hearing loss. Because it is undisputed that Chism became aware of his hearing loss more than two years before he filed his claim, the Commission's decision that his claim was barred by the statute of limitations is supported by substantial evidence.

Chism's final argument is that the Commission erred in rejecting the merits of his estoppel argument.1 Chism asserts that ALCOA should be estopped from asserting thestatute of limitations as a defense because of ambiguous and misleading communications by ALCOA. Estoppel is an equitable doctrine that is invoked in appropriate circumstances to prevent a party from prevailing on purely technical grounds after having acted in a manner indicating that the opposing parties' strict compliance with the technicality would not be required. INA/CIGNA Ins. Co. v. Simpson, 27 Ark. App. 222, 772 S.W.2d 353 (1989). We have applied the doctrine of estoppel in workers' compensation cases. See id. The necessary elements of estoppel are (1) the party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel had a right to believe it is so intended; (3) the latter must be ignorant of the true facts; and (4) he must rely on the former's conduct to his injury. Snow v. ALCOA, 15 Ark. App. 205, 691 S.W.2d 194 (1985).

We hold that the Commission did not err in finding the doctrine of estoppel to be inapplicable to this case. Chism failed to present any evidence that ALCOA misled him as to the cause and severity of his hearing loss. Furthermore, Chism failed to assert any reason for his failure to file a claim before the expiration of the limitations period. Therefore, we hold there was substantial evidence to support the Commission's finding that Chism failed to demonstrate that he relied on ALCOA's conduct to his detriment.

Affirmed.

Jennings and Griffen, JJ., agree.

1 The Commission's order addressing appellant's estoppel argument is not contained in the addendum of his brief as required by Arkansas Supreme Court Rule 4-2(a)(7). However, the order is in the supplemental record. We are authorized to go to the record to affirm, Hosey v. Burgess, 319 Ark. 183, 890 S.W.2d 262 (1995), and we do so in this instance.