{ "id": 1240990, "name": "MINNESOTA MINING & MANUFACTURING and Old Republic Insurance Company v. Theodore BAKER", "name_abbreviation": "Minnesota Mining & Manufacturing v. Baker", "decision_date": "1999-03-25", "docket_number": "98-1290", "first_page": "94", "last_page": "105", "citations": [ { "type": "official", "cite": "337 Ark. 94" }, { "type": "parallel", "cite": "989 S.W.2d 151" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "252 Ark. 824", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1629838 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/ark/252/0824-01" ] }, { "cite": "8 Ark. App. 278", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141678 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark-app/8/0278-01" ] }, { "cite": "25 Ark. App. 195", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139574 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark-app/25/0195-01" ] }, { "cite": "25 Ark. App. 66", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137655 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark-app/25/0066-01" ] }, { "cite": "260 Ark. 21", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1616699 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/ark/260/0021-01" ] }, { "cite": "715 S.W.2d 449", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 6141356, 1873741 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ark-app/18/0248-01", "/ark/290/0069-01" ] }, { "cite": "18 Ark. App. 248", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141356 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ark-app/18/0248-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9-521", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "parenthetical": "a" } ], "opinion_index": 0 }, { "cite": "252 Ark. 460", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1629935 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/ark/252/0460-01" ] }, { "cite": "55 Ark. App. 300", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142376 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark-app/55/0300-01" ] }, { "cite": "311 Ark. 103", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1896930 ], "weight": 4, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/311/0103-01" ] }, { "cite": "10 Ark. App. 92", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138021 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark-app/10/0092-01" ] }, { "cite": "217 Ark. 625", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723029 ], "weight": 2, "year": 1950, "opinion_index": 0, "case_paths": [ "/ark/217/0625-01" ] }, { "cite": "311 Ark. 405", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1896961 ], "weight": 6, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/311/0405-01" ] }, { "cite": "333 Ark. 613", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 703802 ], "weight": 4, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/333/0613-01" ] }, { "cite": "322 Ark. 461", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447579 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/322/0461-01" ] }, { "cite": "322 Ark. 440", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447503 ], "weight": 4, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/322/0440-01" ] }, { "cite": "29 Ark. App. 218", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140677 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark-app/29/0218-01" ] }, { "cite": "328 Ark. 381", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 50383 ], "weight": 5, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/328/0381-01" ] }, { "cite": "333 Ark. 41", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 703836 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/333/0041-01" ] }, { "cite": "335 Ark. 356", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 862761 ], "weight": 4, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/335/0356-01" ] }, { "cite": "331 Ark. 7", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604789 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/331/0007-01" ] }, { "cite": "331 Ark. 103", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604763 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/331/0103-01" ] }, { "cite": "335 Ark. 63", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 862799 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/335/0063-01" ] }, { "cite": "63 Ark. App. 160", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139049 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "167" }, { "page": "867" } ], "opinion_index": 0, "case_paths": [ "/ark-app/63/0160-01" ] } ], "analysis": { "cardinality": 803, "char_count": 17626, "ocr_confidence": 0.774, "pagerank": { "raw": 1.186427145183266e-06, "percentile": 0.9874324719317613 }, "sha256": "63240e1c2ad0f5be321ccc618d2641e5f60ee077b9c6b7d5f3bc7b6033345d89", "simhash": "1:23adac22688a4298", "word_count": 2846 }, "last_updated": "2023-07-14T14:46:43.806602+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MINNESOTA MINING & MANUFACTURING and Old Republic Insurance Company v. Theodore BAKER" ], "opinions": [ { "text": "W. H.\u201cDub\u201d Arnold, Chief Justice.\nThis case is before us on petition for review from the Arkansas Court of Appeals. Appellants, Minnesota Mining & Manufacturing (3M) and Old Republic Insurance Company, appealed the Workers\u2019 Compensation Commission\u2019s decision that Theodore Baker is entitled to disability benefits for an occupational noise-induced hearing loss. For reversal, appellants contended that the Commission\u2019s finding that appellee sustained a compensable hearing loss is not supported by substantial evidence and that appellee\u2019s claim is barred by the statute of limitation. The Court of Appeals affirmed the Commission\u2019s decision, concluding that substantial evidence existed to support the Commission\u2019s finding that appellee proved his hearing loss was caused by his employment and that the statute of limitation cannot apply to scheduled injuries involving hearing loss where there is no loss of wages. Minnesota Mining & Mfg. v. Baker, 63 Ark. App. 160, 975 S.W.2d 863 (1998).\nThe appellants petitioned this Court for review, contending that only the General Assembly can create a statute of limitation and only the General Assembly can exempt a subset of cases from the statute of limitation. Appellants assert that the legislature did not exempt scheduled injury hearing loss workers\u2019 compensation claims from the applicable statute of limitation, nor does a reading of the statute and cases interpreted mandate such a result. Appellants assert that to hold otherwise will subject the Workers\u2019 Compensation Commission and courts to a flood of stale cases where claims are brought for no reason other than a retroactive change in law. Given the specific facts presented in this case, we agree.\nBaker\u2019s employment with appellant 3M began on August 18, 1977, and continues. On February 23, 1978, a baseline hearing test was administered to appellee, the results of which demonstrated significant bilateral hearing deficiencies. Appellee underwent subsequent tests that demonstrated no clinically significant decrease in hearing from the February 1978 baseline test through the time he filed his claim in February 1992.\nAppellants contend that the Commission\u2019s finding that Baker sustained a compensable hearing loss is not supported by substantial evidence and that it is further barred by the applicable two-year statute of limitation. We granted appellant\u2019s petition for review because this case presents an opportunity to address the statute-of-limitation issue with regard to claims for work-related injuries where no loss of wages occurred. We also address whether there is substantial evidence to support the Commission\u2019s determination that Theodore Baker\u2019s injury was compensable.\nIt is well settled that upon a petition for review, we consider the case as though it were originally filed in this Court. ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998); Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998). On appeal of a workers\u2019 compensation case from the Court of Appeals to this Court, we view the evidence in a light most favorable to the Commission\u2019s decision, and we uphold that decision if it is supported by substantial evidence. Ester v. National Home Centers, Inc., 335 Ark. 356, 981 S.W.2d 91 (1998); Golden v. Westark Community College, 333 Ark. 41, 969 S.W.2d 154 (1998); Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997). Substantial evidence exists if reasonable minds could reach the same conclusion. Id. We 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 conclusion arrived at by the Commission. Id. 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\u2019s conclusion, we must affirm its decision. Id.\nAt the administrative hearing on his claim, Baker testified that his employment with 3M began on August 18, 1977, and that he initially was assigned to work in the bagging department where 3M\u2019s principal product, roofing granules, are prepared for shipping. According to Baker, he began experiencing moderate to severe hearing loss within three to four months of his employment, and the hearing tests he took within the following two-month period showed significant hearing loss.\nSubsequent tests, including an audiogram administered in December 1992, showed no significant change in his hearing from the results of the February 23, 1978, hearing test. Baker testified that he was transferred to another department shortly after his initial hearing examination in 1978. Documentary medical evidence corroborated Baker\u2019s testimony regarding his hearing loss.\nDr. Daniel J. Orchik opined in a report dated June 2, 1993, that, based on the appellee\u2019s medical records, work history, and other relevant history, Baker suffers from noise-induced hearing loss related to his employment with 3M. He noted that during the six-month period between the time he was hired and the time of his first audiological exam, the appellee was exposed to workplace noise as high as ninety-nine decibels without the benefit of any hearing protection. Appellee worked an average of forty-seven hours weekly, including some twelve-hour shifts. Dr. Orchik agreed that appellant\u2019s audiogram results did not change significantly between his baseline or initial test in February 1978 and the test he underwent in December 1992. He concluded that Baker suffered 46.25 percent impairment in the left ear, 38.8 percent in the right, and binaural impairment of 39.82 percent.\nAppellant 3M contends that because appellee did not experience a significant decrease in his hearing after the February 1978 baseline audiogram, the Commission could not find that his hearing loss is related to his employment. It is well established that it is within the Commission\u2019s province to weigh all the medical evidence and to determine what is most credible. Ester v. National Home Centers, Inc., 335 Ark. 356, 981 S.W.2d 91 (1998); see also, McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989). The Court of Appeals held, and we agree, that Dr. Orchik\u2019s opinion, coupled with Baker\u2019s testimony that he did not have a hearing impairment prior to becoming employed by 3M, and the fact that he was transferred from the bagging station, 3M\u2019s noisiest job site, shortly after his first hearing test, constitute substantial evidence to support the Commission\u2019s finding that appellee proved his hearing loss was caused by his employment with 3M.\nAppellants next contend that Baker\u2019s claim was barred by the statute of limitation. It is undisputed that appellee\u2019s hearing deficiencies were established and known following hearing tests administered on February 23, 1978. The parties also agree that appellee has not suffered any loss of earnings because of the injury.\nThe case at bar presents an issue of first impression for this Court because whether the statute of limitation applies to scheduled injuries has yet to be decided by this Court. The beginning point in interpreting a statute is to construe the words just as they read and to give them their ordinary meaning. Arkansas Dept. of Health v. Westark Christian Action, 322 Ark. 440, 910 S.W.2d 199 (1995). The basic rule of statutory construction is to give effect to the intent of the legislature, making use of common sense. Office of Child Support Enforcement v. Harnage, 322 Ark. 461, 910 S.W.2d 207 (1995); Arkansas Dept. of Health v. Westark Christian Action, 322 Ark. 440, 910 S.W.2d 199 (1995). Statutes relating to the same subject should be read in a harmonious manner, if possible. L.H. v. State, 333 Ark. 613, 973 S.W.2d 477 (1998); City of Ft. Smith v. Tate, 311 Ark. 405, 844 S.W.2d 356 (1993). All legislative acts relating to the same subject are said to be in pari materia and must be construed together and made to stand if they are capable of being reconciled. Id.\nBecause appellant filed his claim in February 1992, the commencing of the statute of limitation is controlled by Arkansas Code Annotated \u00a7 11-9-702(a)(1) (1987), which provides:\nTime for Filing. (1) A claim for compensation for disability on account of injury, other than an occupational disease and occupational infection, shall be barred unless filed with the Commission within two (2) years from the date of injury.\nWe 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\u2019s 1950 decision in Donaldson, we held that a claimant\u2019s 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 oflimitation under \u00a7 11-9-702(a)(1), 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. Thus, the statute of limitation does not begin to run until both elements of the rule are met. Hall\u2019s Cleaners v. Wortham, 311 Ark. 103, 842 S.W.2d 7 (1992).\nIn a majority of jurisdictions, the statute of limitation generally begins to run on a workers\u2019 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\u2019 Compensation Law, App. A-2C-1(1997). However, Arkansas is technically a \u201ccompensable injury\u201d state. Hall\u2019s Cleaners, supra.\nAppellants contend that the legislature surely did not intend that a gradual-onset occupational, noise-induced hearing loss would not have an applicable statute of limitation. This is so, according to appellants, because gradual-onset hearing loss by its very nature will generally not result in time missed from work or in a loss of earning capacity. We agree.\nAs the Court of Appeals correctly held, because the permanent injury suffered by appellee in this case affects only his hearing, the permanent injury may be reduced to a scheduled injury. See Federal Compress & Warehouse Co. v. Risper, 55 Ark. App. 300, 935 S.W.2d 279 (1996), and Anchor Const. Co. v. Rice, 252 Ark. 460, 479 S.W.2d 573 (1972).\nArkansas Code Annotated \u00a7 11-9-521 (a) (16) (1987) provides:\n(a) An employee who sustains a permanent injury scheduled in this section shall receive, in addition to compensation for the healing period, weekly benefits in the amount of the permanent partial disability rate attributable to the injury, for that period set out in the following schedule:\n(16) loss of hearing of both ears, one hundred fifty-eight (158) weeks [.]\nCompensation for an injury scheduled in Ark. Code Ann. \u00a7 11-9-521 (a) is payable to the injured worker without regard to subsequent earning capacity. These benefits are awarded more in the nature of an indemnity for physical or functional loss and are payable whether the worker is employed or unemployed and irrespective of what his wages or earning capacity may be. Rash v. Goodyear Tire & Rubber Co., 18 Ark. App. 248, 715 S.W.2d 449 (1986).\nAs the Court of Appeals acknowledged, Professor Larson, in his treatise on workers\u2019 compensation law, sets forth the following reasons for awarding scheduled benefits:\nUnder most acts, if an injury has left the claimant with a permanent bodily impairment, compensation for a specified number of weeks is payable without regard to presence or absence of wage loss during that period.\n[T]hese payments are not dependent on actual wage loss. This is not, however, to be interpreted as an erratic deviation from the underlying principle of compensation law \u2014 that benefits relate to the loss of earning capacity and not to physical injury as such. The basic theory remains the same; the only difference is that the effect on earning capacity is a conclusively presumed one, instead of a specifically proved one based on the individual\u2019s actual wage-loss experience. (Emphasis added.)\n4 Larson, Workers\u2019 Compensation Law, \u00a7 58 (1997).\nThe Court of Appeals held that it is \u201cclear that the legislature intended that compensation for scheduled injuries be awarded without regard to the statute of limitations in \u00a7 11\u20149-702(a)(1) Minnesota Mining & Mfg. v. Baker, 63 Ark. App. at 167, 975 S.W.2d at 867. They further held that disability benefits for compensable injuries under other sections of the workers\u2019 compensation act continue until the employee\u2019s healing period has ended, and compensation for injuries scheduled by statute are limited to the period scheduled and do not extend until a cure is effected. Continuing, they held that in cases involving scheduled injuries, it is clear that a loss in earnings has no effect on the award of benefits. This is so, because the benefits are awarded in the nature of an indemnity for bodily impairment. They decided that if the court were to decide that the statute of limitation applies to scheduled injuries, the result would be that the injury would not become compensable until a loss in earnings occurred. In that case, workers such as the appellee who have not experienced a loss of earnings would never satisfy the requirements of a compensable injury. With this holding, we cannot agree.\nAny statute of limitation will eventually operate to bar a remedy, and the time within which a claim should be asserted is a matter of public policy, the determination of which lies almost exclusively in the legislative domain, and the decision of the General Assembly in that regard will not be interfered with by the courts in the absence of palpable error in the exercise of the legislative judgment. Owen v. Wilson, 260 Ark. 21, 537 S.W.2d 543 (1976); Hamilton v. Jeffrey Stone Co., 25 Ark. App. 66, 752 S.W.2d 288 (1988). We cannot agree with the Court of Appeals that the General Assembly intended no statute of limitation for scheduled injuries. As previously stated, statutes relating to the same subject should be read in a harmonious manner, if possible. L.H. v. State, 333 Ark. 613, 973 S.W.2d 477 (1998); City of Ft. Smith v. Tate, 311 Ark. 405, 844 S.W.2d 356 (1993). All legislative acts relating to the same subject are said to be in pari materia and must be construed together and made to stand if they are capable of being reconciled. Id. Arkansas Code Annotated \u00a7\u00a7 11-9-702(a)(1) (1987) and 11-9-521(a)(16) (1987) can easily be read harmoniously when applying the Larson theory.\nThe Court of Appeals cited Larson\u2019s treatise on Workers\u2019 Compensation Law for the proposition that for scheduled injuries, compensation for a specified number of weeks is payable without regard to the presence or absence of wage loss during that period and that the effect on earning capacity is a conclusively presumed one, instead of a specifically proved one based on the individual\u2019s actual wage-loss experience. This theory means that a claimant seeking benefits for a scheduled injury is not required to prove a loss of earnings or earning capacity in order to be entitled to compensation. The impact on a claimant\u2019s earnings or earning capacity is conclusively presumed.\nApplying this theory to the two-prong test recited in Hall\u2019s Cleaners, supra, a work-related noise-induced hearing-loss injury does not become compensable 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 conclusively presumed. Because the statute of limitation does not begin to run until both elements of the rule are met, and because of the conclusive presumption as to loss of earnings, which satisfies the second element, the statute of limitation with respect to work-related noise-induced hearing loss begins to run when the hearing loss becomes apparent to the claimant.\nHere, appellee became aware of his hearing loss in February 1978. The statute of limitation 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 \u00a7 11-9-702(a)(1) (1987). Although appellee\u2019s claim may well be meritorious, we cannot extend the time for him to file his claim by some twelve years. The burden of filing a claim within the statute of limitation is on the claimant. Plunkett v. St. Francis Valley Lumber Co., 25 Ark. App. 195, 755 S.W.2d 240 (1988); St. John v. Arkansas Lime Co., 8 Ark. App. 278, 651 S.W.2d 104 (1983). The court cannot extend the period of the statute of limitation on appeal, despite the fact that a claim may be meritorious. Miller v. Everett, 252 Ark. 824, 481 S.W.2d 335 (1972).\nWe thus conclude that although substantial evidence existed to support the Commission\u2019s finding that appellee proved his hearing loss was caused by his employment, appellee\u2019s claim is barred by the applicable statute of limitation.\nReversed.", "type": "majority", "author": "W. H.\u201cDub\u201d Arnold, Chief Justice." } ], "attorneys": [ "Barber, McCaskill, Jones & Hale, P.A., by: Gail Ponder Gaines, for appellants.", "Davis, Mitchell & Davis, by: Zan Davis, for appellee.", "Rose Law Firm, by: Phillip Carroll, for amicus curiae ALCOA.", "Kaplan, Brewer & Maxey, P.A., by: Silas H. Brewer, Jr., for amicus curiae John Cook." ], "corrections": "", "head_matter": "MINNESOTA MINING & MANUFACTURING and Old Republic Insurance Company v. Theodore BAKER\n98-1290\n989 S.W.2d 151\nSupreme Court of Arkansas\nOpinion delivered March 25, 1999\nBarber, McCaskill, Jones & Hale, P.A., by: Gail Ponder Gaines, for appellants.\nDavis, Mitchell & Davis, by: Zan Davis, for appellee.\nRose Law Firm, by: Phillip Carroll, for amicus curiae ALCOA.\nKaplan, Brewer & Maxey, P.A., by: Silas H. Brewer, Jr., for amicus curiae John Cook." }, "file_name": "0094-01", "first_page_order": 118, "last_page_order": 129 }