NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JOSEPHINE LINKER HART, JUDGE

DIVISION I

ALUMINUM COMPANY OF AMERICA, SELF INSURED EMPLOYER

APPELLANT

V.

REVIES L. STACEY

APPELLEE

CA01-640

December 19, 2001

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E303220]

REVERSED

Appellant, Aluminum Company of America (ALCOA), after remand, brings this second appeal from the Workers' Compensation Commission's decision1 and argues that the Commission erred by requiring appellant to purchase hearing aids for Revies Stacey, the appellee, after holding that appellee's claim for hearing loss was barred by the statute oflimitations. Further, appellant argues that the Commission erred by shifting the burden of proof from appellee to appellant to establish that appellee had a medical prognosis requiring hearing amplification on the date that appellee was diagnosed with and became aware of his hearing impairment. We agree and reverse.

On remand, the Commission found that the two-year statute of limitations barred appellee's hearing loss claim, and he does not appeal from that order. Thus, the sole issue on appeal is the Commission's determination that ALCOA was obligated to provide hearing amplification devices to appellee.

Appellee began working for ALCOA on March 25, 1968, and remained an employee throughout the proceedings before the Commission. Prior to his employment, appellee was administered an audiogram on March 22, 1968, which showed appellee to have normal hearing. Thereafter, six audiograms were periodically performed to measure appellee's hearing from October 15, 1990, through December 8, 1993. The test results established fluctuations in appellee's ability to hear and showed that appellee had suffered a mild hearing loss. For example, in April of 1991, appellee's hearing handicap jumped to 0.9% from 0.3% in October of 1990. Thereafter, on September 13, 1991, the percentage of loss improved and returned to the 1990 handicap of 0.3%. One year later, appellee's hearing loss percentage was 1.3%, his highest reading. On both the December 1992 reading and the December 1993 reading , the percentage of appellee's hearing handicap was the same at 0.3% as shown in the 1990 test. On March 2, 1993, appellee filed a claim for benefits under

the workers' compensation laws.

After remand, the Commission conducted a de novo review of the record and stated the following in the majority's opinion:

We have previously awarded the claimant hearing aids based on Dr. Daniel Orchek's expert medical testimony indicating that the claimant's hearing loss after his claim was filed was of a nature and extent sufficient to require hearing aids while the claimant's hearing impairment as calculated under the AMA Guides formula, remained the same, at 0.3% between 1990 and 1993, we note that the claimant's December 8, 1993 audiogram indicates some degree of overall increased threshold shift, particularly in the higher frequencies, as compared to the claimant's October 15, 1990 audiogram. Whether the claimant's hearing loss might have been sufficient to require a need for hearing aids two years prior to the date that the claimant filed his claim is a medical question, and there are no medical opinions in the record indicating that the claimant's hearing loss was sufficient to require hearing aids more than two years prior to the date the claimant filed his claim for benefits, or to indicate that the claimant's additional hearing loss beginning two years prior to the date he filed his claim was insufficient to cause a need for hearing aids. Under these circumstances, we find that the respondents have failed to establish by a preponderance of the evidence that the claimant's claim for hearing aids is barred by the statute of limitations.

The audiograms performed in October of 1990 and December of 1993 established a slight fluctuation in appellee's hearing ability in his left ear, by demonstrating a slight decrease from 35 to 40 at 2000Hz and a slight increase from 45 to 40 at 3000Hz. Although not taken into account under the AMA Guides equation, his hearing in the higher frequencies deteriorated; however, his hearing loss of 0.3% as calculated under the AMA Guides remained the same from 1990 until 1993. Further, the medical evidence does not establish that the fluctuation in appellee's hearing ability form the basis for the Commission's decision requiring appellant to provide hearing amplification devices toappellee. Instead, the Commission determined appellee's entitlement to hearing amplification devices was based on its finding that appellant failed to establish by medical evidence that the hearing devices were recommended more than two years prior to the date appellee filed his claim.

We reverse and base our decision upon the opinion rendered this date in ALCOA v. Rollon, CA01-638 (Dec. 19, 2001). In our view, the appellee has failed to prove that his need for amplification devices developed subsequent to the date he became aware of the existence of his hearing impairment.

Reversed.

Stroud, C.J., and Neal, J., agree.

1 Originally, the Commission determined that the statute of limitations did not bar appellee's claim and awarded appellee benefits for his hearing loss. In an unpublished opinion dated the June 16, 1999, ALCOA v. Stacey, CA 98-782, this court reversed and remanded the case to the Commission for further proceedings as was required by the supreme court's decision in Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). There the supreme court held that the two-year statute of limitations should be applied to hearing loss claims at the time the hearing loss became known to the claimant.