MINNESOTA MINING MANUFACTURING v. BAKER (1998)

SUPPLEMENTAL OPINION ON DENIAL OF PETITION FOR REHEARING

In a recent opinion dated October 7, 1998, we affirmed the order of the Workers' Compensation Commission that held that appellee's claim for work-related hearing loss was not barred by the statute of limitations.

Appellants have filed a petition for rehearing that takes issue with the portion of our opinion holding that the statute of limitations was not intended to apply to scheduled injuries.   We agree with appellants that the statute of limitations has been held to apply to other scheduled injuries.   Notwithstanding, that does not change our holding that the statute of limitations under the facts of this case does not apply to workers' compensation cases involving hearing loss, which is a scheduled injury, where there was no loss of wages.

Therefore, we clarify our holding to reflect that the statute of limitations cannot apply to scheduled injuries involving hearing loss where there is no loss of wages.   Our decision to treat hearing loss, where there is no loss of wages, different than other scheduled injuries is based upon the fact that such claims would otherwise not be compensable.   See Hall's Cleaners v. Wortham, 311 Ark. 103, 842 S.W.2d 7 (1992);  Donaldson v. Calvert-McBride Printing Co., 217 Ark. 625, 232 S.W.2d 651 (1950).   Other scheduled injuries may result in the permanent loss of a member of the injured worker's body thereby resulting in compensability.

The stance we have taken regarding the applicability of the statute of limitations to claims involving hearing loss is not contrary to prior caselaw.   In the case of other injuries scheduled under Arkansas Code Annotated § 11-9-521, the nature of those work-related injuries is usually apparent, and such injuries usually result in a loss of earnings well within the limitations period.   In the instant case, the loss of hearing was gradual and continued over a period of time and did not affect the employee's ability to earn wages.

OLLY NEAL, Judge.

STROUD, CRABTREE, and ROAF, JJ., agree. GRIFFEN and MEADS, JJ., would grant.