{ "id": 6140241, "name": "Marty POWERS v. CITY of FAYETTEVILLE, Employer, and Municipal League, WCT, Carrier", "name_abbreviation": "Powers v. City of Fayetteville", "decision_date": "2007-01-31", "docket_number": "CA 06-685", "first_page": "251", "last_page": "260", "citations": [ { "type": "official", "cite": "97 Ark. App. 251" }, { "type": "parallel", "cite": "248 S.W.3d 516" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "343 Ark. 276", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 226524 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/343/0276-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "91 Ark. App 77", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137062 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark-app/91/0077-01" ] }, { "cite": "337 Ark. 94", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1240990 ], "weight": 6, "year": 1999, "pin_cites": [ { "page": "104" } ], "opinion_index": 0, "case_paths": [ "/ark/337/0094-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9-521", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 3, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 11-9-702", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "61 Ark. App. 1", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136012 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark-app/61/0001-01" ] }, { "cite": "90 Ark. App. 248", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139719 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark-app/90/0248-01" ] }, { "cite": "999 S.W.2d 695", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 6140940 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/ark-app/67/0332-01" ] }, { "cite": "61 Ark. App. 332", "category": "reporters:state", "reporter": "Ark. App.", "year": 1999, "opinion_index": 0 }, { "cite": "74 Ark. App. 428", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142441 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark-app/74/0428-01" ] }, { "cite": "339 Ark. 474", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 130684 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/339/0474-01" ] }, { "cite": "252 Ark. 755", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1630086 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/ark/252/0755-01" ] }, { "cite": "76 Ark. App. 274", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140915 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark-app/76/0274-01" ] }, { "cite": "69 Ark. App 285", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141204 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark-app/69/0285-01" ] }, { "cite": "66 Ark. App. 201", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139498 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark-app/66/0201-01" ] } ], "analysis": { "cardinality": 813, "char_count": 19678, "ocr_confidence": 0.764, "pagerank": { "raw": 3.433670494979602e-07, "percentile": 0.8792802205842889 }, "sha256": "ab292f6331255f402d91cbf6f67c9238a8c5b09b7746ef5e0923aacb1d52d609", "simhash": "1:a8e647d9f4694a3c", "word_count": 3129 }, "last_updated": "2023-07-14T22:09:44.660607+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Bird, and Baicer, JJ., agree." ], "parties": [ "Marty POWERS v. CITY of FAYETTEVILLE, Employer, and Municipal League, WCT, Carrier" ], "opinions": [ { "text": "J. Robert Gladwin, Judge.\nAppellant Marty Powers appeals the April 6, 2006 decision of the Arkansas Workers\u2019 Compensation Commission, which determined that his claim is barred by the statute of limitations and that he failed to prove that he sustained a compensable injury. Appellant contends that his claim is not barred by the statute of limitations and that there was not substantial evidence to support the Commission\u2019s decision. We hold that the statute of limitations does not prevent appellant\u2019s claim; however, we affirm the decision finding substantial evidence to deny appellant\u2019s claim.\nAppellant began working for the Fayetteville Fire Department in 1986 and first sought medical treatment for hearing problems with ear, nose, and throat specialist Dr. Thermon Crocker in 1992. Dr. Crocker ordered audiological diagnostic testing for appellant again in 1995, 1998, and 2001. Dr. Crocker testified that appellant suffered a normal reduction in hearing loss at the testing done in 1995, and the 1998 testing did not reveal a significant change. In 2001, however, significant change to appellant\u2019s hearing was detected, and the doctor considered him a candidate for hearing aids. His hearing loss had not been severe enough to qualify him for an impairment rating until 2001. Dr. Crocker also testified that, while he considered the impact of other causation factors for the injury such as guns, power tools, and loud music, his opinion within a reasonable degree of medical certainty was that the major cause of appellant\u2019s hearing loss, but not the only cause, resulted from exposure to occupational noise as a firefighter.\nAppellant filed a claim for workers\u2019 compensation benefits on July 31, 2002. Stipulations were made by appellant and appel-lees at a prehearing conference before the administrative law judge (ALJ) that included an agreement that appellant had hearing loss at the impairment level of nine-point-four percent. Although the ALJ accepted this stipulation as fact in the course of rendering his opinion, it nevertheless was determined that appellant failed to prove the existence of a compensable injury because of the lack of objective findings. The ALJ found that the diagnostic testing relied upon by appellant was within the voluntary control of the patient and therefore cannot be considered an objective finding that would satisfy the statutory requirement for compensable injuries. Appellant appealed the ALJ\u2019s denial ofbenefits to the Commission, which affirmed and adopted the ALJ\u2019s decision.\nOn previous appeal, this court reversed the decision of the Commission, finding that because the ALJ and the Commission accepted the stipulation as fact, the Commission\u2019s denial ofbenefits based on the rejection of audiological testing to establish objectively a com-pensable injury was without a rational basis. This court remanded for a determination of fact concerning a causal relationship between the appellant\u2019s hearing loss and his employment, as well as a determination of all other issues raised by the parties.\nUpon remand, the Commission heard the issues of appellee\u2019s statute-of-limitations defense and the compensability of appellant\u2019s injury. The Commission ruled that appellant\u2019s claim was barred by the statute of limitations and, even if it were not, appellant failed to prove that he sustained a compensable injury. From the Commission\u2019s decision comes this appeal.\nWhen an appeal is taken from the denial of a claim by the Workers\u2019 Compensation Commission, the substantial-evidence standard of review requires that we affirm the Commission\u2019s decision if its opinion contains a substantial basis for the denial of relief. Dalton v. Allen Eng\u2019g Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999). In determining the sufficiency of the evidence to support the findings of the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission\u2019s findings, and we affirm if those findings are supported by substantial evidence. Winslow v. D.B. Mech. Contractors, 69 Ark. App 285, 13 S.W.3d 180 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Mays v. Alumnitec, Inc., 76 Ark. App. 274, 64 S.W.3d 772 (2001). There maybe substantial evidence to support the Commission\u2019s decision even though the appellate court might have reached a different conclusion if it had sat as the trier of fact or heard the case de novo. Brower Mfg. Co. v. Willis, 252 Ark. 755, 480 S.W.2d 950 (1972).\nWe will not reverse the Commission\u2019s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999). In making our review, we recognize that it is the function of the Commission to determine the credibility of witnesses and the weight to be given their testimony. Wal-Mart Stores, Inc. v. Stotts, 74 Ark. App. 428, 49 S.W.3d 667 (2001). When the Commission weighs medical evidence and the evidence is conflicting, its resolution is a question of fact for the Commission. Green Bay Packaging v. Bartlett, 61 Ark. App. 332, 999 S.W.2d 695 (1999). Moreover, the Commission can reject or accept medical evidence and determine the probative value to assign to medical testimony. Hamilton v. Gregory Trucking, 90 Ark. App. 248, 205 S.W.3d 181 (2005). The appellate court reviews the decision of the Commission and not that of the ALJ. High Capacity Prods. v. Moore, 61 Ark. App. 1, 962 S.W.2d 831 (1998).\nI. Statute of limitations\nAppellant\u2019s argument that the statute of limitations does not bar his claim is two-fold. The applicable statute of limitations is found in Ark. Code Ann. \u00a7 11-9-702, which provides in pertinent part as follows:\n(a) TIME FOR FILING.\n(1) 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\u2019 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. For purposes of this section, the date of the compensable injury shall be defined as the date an injury is caused by an accident as set forth in \u00a7 11-9-102(4).\nFirst, appellant argues that the statute of limitations for hearing loss does not begin to run until the injury is permanent. Under Ark. Code Ann. \u00a7 11-9-521, when the employee\u2019s scheduled injury is permanent, then he qualifies for \u201cweekly benefits in the amount of the permanent partial disability rate attributable to the injury.\u201d Appellant claims that it logically follows that if the injury is not permanent then an employee does not qualify for these weekly benefits. Also, if the claimant does not qualify for these weekly benefits, then he has not suffered a loss of earnings, which the Arkansas Supreme Court, in Minnesota Mining & Manufacturing v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999), held are presumed in these weekly benefits. Therefore, appellant argues that the statute of limitations should not run until a scheduled injury is permanent and qualifies for these weekly benefits.\nAppellant claims that, until now, this court has not been presented with a case that is ripe for a determination on the issue of whether a deteriorating condition tolls the statute of limitations. In other words, appellant claims that this court has not ruled on the issue of whether the statute of limitations begins to run at the discovery of the condition, or after the condition has stabilized. Appellant argues that, here, he properly raised this argument to the Commission and there are audiograms that prove his progressive hearing loss.\nAppellant initially sought treatment for hearing loss in 1992. He returned in 1995, and the tests did not show a dramatic change. There were admittedly no changes in 1998, but his hearing loss progressed significantly in 2001. He emphasizes that Dr. Crocker testified that the appellant\u2019s hearing loss was progressive, and the medical records and audiograms corroborate his opinion. The Commission concluded that the appellant\u2019s condition stabilized in 1998 and that the statute of limitations should run from that date. However, appellant claims that it is clear that his condition was not stable in 1998. In fact, he claims his injury continued to progress with further deterioration in his hearing loss because of his continued exposure to occupational noise as a firefighter. We agree. Appellant\u2019s hearing loss finally stabilized in 2001 when he retired and was no longer exposed to occupational noise. Because he filed his claim in July 2002, he was within the two-year limitations period.\nSecond, appellant argues in the alternative that the statute of limitations for hearing loss does not begin until an injury is permanent and qualifies for a disability rating. An employee who sustains a scheduled injury is entitled to compensation during the healing period. Ark. Code Ann. \u00a7 11-9-521. When the scheduled injury is permanent, then the employee qualifies for \u201cweekly benefits in the amount of the permanent partial disability rate attributable to the injury.\u201d Id. However, a claimant would not qualify for weekly benefits for a permanent injury if there is no permanent partial disability rate attributable to the injury. Therefore, the statute of limitations does not begin to run until a scheduled injury is permanent and a rating can be attributed to the injury.\nAppellant\u2019s hearing loss was not severe enough to qualify for a rating until 2001. Based on appellant\u2019s audiogram from 1998, Dr. Crocker formulated a rating of zero percent. However, his hearing loss in 2001 entitled him to a nine-point-four percent rating. Therefore, although appellant may have been aware of his loss in 1992, he did not suffer a presumed loss in earnings until 2001, when his condition was permanent and he qualified for a disability rating.\nAppellee argues that, for purposes of commencing the statute of limitations under Ark. Code Ann. \u00a7 ll-9-702(a)(l), an \u201cinjury\u201d is not to be construed as \u201ccompensable\u201d until: (1) the injury develops or becomes apparent; and (2) the claimant suffers a loss in earnings on account of the injury, which loss is presumed in hearing-loss cases as in those of scheduled injuries. Baker, supra. Appellee claims that, consequently, the statute of limitations, with respect to a claim for hearing loss, begins to run when the hearing loss becomes apparent to the claimant. Id. Appellee claims that, in this case, appellant\u2019s hearing loss manifested nearly ten years before he filed his claim with the Commission. However, this argument belies Dr. Crocker\u2019s 1998 rating of zero percent. Again, appellant may have recognized a problem with his hearing early on, but he did not qualify for a disability rating until 2001.\nAppellee contends that appellant\u2019s claims regarding the deterioration of his hearing loss have their origins in Baker, supra. In Baker, the court seemed to associate the application of the statute of limitations to the absence of continued hearing loss when it stated, \u201c[Appellee] became aware of his hearing loss in February 1978. The statute of limitations began to run in February 1978, and because his hearing did not continue to deteriorate, appellee\u2019s claim became time barred in February 1980, pursuant to Arkansas Code Annotated section ll-9-702(a)(l) (1987).\u201d Id. at 104, 989 S.W.2d at 157. Subsequently, in Pina v. Wal-Mart Stores, Inc., 91 Ark. App 77, 208 S.W.3d 236 (2005), this court expounded on the Baker dicta, commenting:\nThe initial claim in Baker was for permanent disability benefits. Therefore, in order to be entitled to permanent disability benefits, the hearing loss had to reach a point of stability. Accordingly, it is our view that the requirement that the injury stabilize is limited to hearing-loss claims, and the Baker dicta supports only a narrow view of the stabilization requirement. Further, in hearing-loss claims the annual hearing tests quantify the amount of loss experienced by the claimant. Such annual testing objectively demonstrates the amount of loss and the time period in which the loss occurred, removing all elements of subjectivity as to time and amount of loss from the fact finding.\nAppellee argues that the Pina dictum, with respect to a stabilization requirement, seems to be based upon the presence of annual hearing tests that objectively demonstrate the amount of loss and the time of loss. In the instant case, yearly tests were not given. However, tests were administered in 1992, 1995, 1998, and 2001. Because the results support the claim that additional hearing loss occurred between 1998 and 2001 when a disability rating was assigned, we hold that appellant\u2019s hearing loss was not stabilized in 1998.\nAppellee argues that appellant\u2019s alternative argument that the statute of limitations is not tolled until the injury is susceptible of an impairment rating is also flawed. This approach would allow for hearing loss injuries to continue until the day the claimant finally sees a doctor who is able to assess an impairment rating. However, in the instant case, appellant did see a doctor and submitted to hearing tests at least four times between 1992 and 2001. He received a disability rating of nine-point-four percent in 2001. He continued to work as a firefighter throughout this period, and Dr. Crocker testified that his hearing loss was attributable to his occupation. Therefore, appellant\u2019s claim was not stale.\nII. Substantial evidence claim\nAppellant claims that there was not substantial evidence to support the Commission\u2019s determination that appellant failed to prove that he sustained a compensable injury. Appellant argues that the issue is whether the major cause of his hearing loss was his exposure to occupational noise. A claimant is required to prove by a preponderance of the evidence that a work-related injury is the major cause of his disability or need for treatment. Ark. Code Ann. \u00a7 11 \u2014 9\u2014102(4)(E)(ii). \u201cMajor cause\u201d is defined as merely more than fifty percent. Ark. Code Ann. \u00a7 ll-9-102(14)(A). Appellant argues that the preponderance of the evidence shows that the major cause of his hearing loss was his exposure to occupational noise.\nAppellant points to the evidence that he worked as a firefighter for sixteen years. In the first six years, he was routinely exposed to running engines and water pumps. He had to ride in open-air styled cabs, and the sirens and horns were located directly above his head. In 1992, he was transferred to Station 2 located at the University of Arkansas. While there, he and others responded to several alarms at the Bud Walton Arena and various residence halls. The firefighters had to search through the entire building while the alarms remained activated. These alarms registered eighty-seven-point-eight and eighty-nine decibels from ten feet away. During his last years as a firefighter, he worked at Station 3 located at Drake Field Airport. While working there he would routinely inspect hangars while mechanics were running jet engines.\nFurther, appellant\u2019s treating physician, Dr. Crocker, provided expert opinion that the major cause of appellant\u2019s hearing loss was the occupational noise from his work as a firefighter. Dr. Crocker testified that he considered the decibel readings of various equipment at the Fayetteville Fire Station and the decibel levels of the alarms at the University of Arkansas. He also considered a narrative of the appellant\u2019s exposure to work-related and non-work-related noise.\nAlso, Dr. Doernhoffer, an independent examiner who reviewed the appellant\u2019s claim for in-the-line-of-duty disability benefits through the Arkansas Local Police and Fire Retirement System, issued his opinion that the job exposure to noise was the cause of appellant\u2019s hearing loss. Therefore, appellant argues that these two opinions are more than enough evidence to prove that occupational noise was the major cause of appellant\u2019s hearing loss.\nHowever, the Commission rejected these two opinions, instead relying on testimony from Lewis McGrail and Jimmy Key. McGrail and Key work for Key Audiometries in Garfield, Arkansas, and perform annual hearing testing, baseline testing, and noise surveys. They performed a noise survey and baseline testing for the City of Fayetteville Fire Department. Key testified that any type of hearing protection would benefit firefighters. McGrail claimed that with exposure to long periods of time without ear protection, a firefighter could sustain some substantial hearing loss.\nAppellant argues that the Commission failed to consider that Key and McGrail improperly assumed the use of hearing protection by appellant. Further, both Key and McGrail failed to consider the exposure to false alarms on the university campus because they did not have the decibel readings from these alarms. Finally, appellant claims that Key and McGrail did not consider the decibel levels from the jet engines that appellant was exposed to while stationed at Drake Field.\nNevertheless, appellee claims that there is substantial evidence to support the Commission\u2019s findings that appellant did not suffer a compensable injury in the form of a hearing loss as a result of his employment. Appellee reiterates that the Commission is authorized to accept or reject medical opinions. Estridge v. Waste Mgmt., 343 Ark. 276, 33 S.W.3d 167 (2000). Further, appellee points out that McGrail and Key provided the only testimony that carried weight. Appellee argues that these specialists went to the scene, made measurements, compared data to national standards, and reached a different conclusion as to causation. Key testified that ninety percent of the firefighters he surveyed used hearing protection that would reduce sound levels to below ninety decibels. He further testified that a lawnmower puts out 105 decibels, a chainsaw about 100 decibels or more, circular saws can get up to 100 decibels, and a jet engine was about 120 to 140 decibels. Lastly, Key testified that impact noises such as gunshots were the most dangerous. McGrail testified that without hearing protection, appellant would have had a substantial hearing loss had he been exposed to the noise levels captured at the City of Fayetteville. Because the hearing loss was twelve percent over a ten-year period, McGrail testified that appellant probably did use hearing protection. He also noted that if appellant were normal in 1992, then it would indicate appellant never wore ear protection and that he was exposed to a lot more than ninety decibels, but that only changing twelve to thirteen decibels over a ten-year period was a minimal change that may or may not be associated with the workplace. Therefore, we cannot say that the Commission did not have substantial evidence before it to find that appellant did not sustain a compensable injury.\nAccordingly, the statute of limitations does not prevent appellant\u2019s claim; however, the Commission\u2019s decision that appellant did not sustain a compensable injury is affirmed.\nAffirmed.\nBird, and Baicer, JJ., agree.", "type": "majority", "author": "J. Robert Gladwin, Judge." } ], "attorneys": [ "Martin & Kieklak Law Firm, by: Aaron L. Martin, for appellant.", "J. Chris Bradley, for appellees." ], "corrections": "", "head_matter": "Marty POWERS v. CITY of FAYETTEVILLE, Employer, and Municipal League, WCT, Carrier\nCA 06-685\n248 S.W.3d 516\nCourt of Appeals ofArkansas\nOpinion delivered January 31,2007\nMartin & Kieklak Law Firm, by: Aaron L. Martin, for appellant.\nJ. Chris Bradley, for appellees." }, "file_name": "0251-01", "first_page_order": 283, "last_page_order": 292 }