 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Cook v. Aluminum Company of America2/13/2002
NOT DESIGNATED FOR PUBLICATION
This is the second appeal in this workers' compensation hearing- loss case. The Workers' Compensation Commission (Commission) originally awarded appellant John Cook benefits for job-related hearing loss, finding that his claim for benefits was not barred by the statute of limitations. In an unpublished opinion dated June 16, 1999, ALCOA v. John H. Cook, CA 98-639, this court reversed and remanded the case to the Commission for additional findings of fact consistent with Minnesota Mining & Mfg. 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 Cook's claim was barred by the statute of limitations. The Commission also refused to consider Cook's argument that ALCOA should be estopped from relying on the statute of limitations as a defense. On appeal, Cook asserts that the Commission erroneously declined to consider the estoppel argument he raised before the Administrative Law Judge (ALJ). Cook also asserts that the Commission's decision that the statute of limitations bars his claim for job-related hearing loss is not supported by substantial evidence. Based on our opinion rendered in the companion case, Shepard v. ALCOA, 75 Ark. App. 292, S.W.3d (Jan. 9, 2002), we remand this case to the Commission for resolution of the estoppel issue.
Cook is retired from ALCOA. He began working for ALCOA on June 20, 1953. While employed at ALCOA, Cook worked primarily in maintenance. ALCOA administered periodic hearing tests to its employees. Cook was first informed that he had suffered some hearing loss in February 1985. The results of a hearing test administered in 1991, which Cook signed, indicated he was hearing impaired.
Cook filed a claim for benefits on March 2, 1993. At the hearing held before the ALJ, there was evidence that ALCOA was aware, as early as 1988, that several of its employees were suffering hearing loss as a result of high-noise exposure. There was also evidence that Cook's union had asked ALCOA for information on employees who had some form of hearing loss. The Commission stated the following when it refused to entertain Cook's estoppel argument:
In reaching our decision, we note that the claimant has made an argument in his brief on remand that the respondents should be estopped from relying on the statute of limitations. However, our review of the administrative law judge's decision and the hearing transcript in this case indicates that the claimant did not raise any estoppel theory at the hearing before the administrative law judge.
When a determination of an ALJ is appealed to the Commission, the Commission does not sit as an appellate court to review the ALJ's findings; instead, the Commission makes a de novo determination of the facts. Woods v. Best Western, 32 Ark. App. 196, 799 S.W.2d 565 (1990).
In order to preserve an issue for appellate review, a claimant must first raise the issue before the Commission, even where the Commission has reversed the ALJ's award of benefits. Id. This can be done by filing a motion for reconsideration. Id. In the case at bar, the Commission ruled that the issue was not preserved, thereby making a motion for reconsideration unnecessary. Because Cook initially prevailed before the ALJ, the issue of estoppel was properly before the Commission. Likewise, the Commission ruled on the issue; therefore, the issue was properly preserved for appellate review.
After the hearing before the ALJ, Cook filed a w
Page 1 2 Arkansas Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|