NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION I

CA01-655

JANUARY 9, 2002

JOSEPH D. CHISM

APPELLANT AN APPEAL FROM THE ARKANSAS

v. WORKERS' COMPENSATION

COMMISSION [E303047]

ALUMINUM COMPANY OF

AMERICA, SELF-INSURED

EMPLOYER

APPELLEE REMANDED

This is the second appeal in this workers' compensation hearing-loss case. The Workers' Compensation Commission (Commission) originally awarded appellant Joseph Chism 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 In an unpublished opinion dated June 23, 1999, ALCOA v. Joseph D. Chism, CA 98-785, this court reversed and remanded the case to the Commission for additional findings of fact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 Chism's claim was barred by the statute of limitations. The Commission also declined to consider Chism's argument that ALCOA should be estopped from relying on the statute of limitations as a defense. On appeal, Chism argues that the Commission erroneously declined to consider the estoppel argument he raised before the Administrative Law Judge (ALJ). Chism also argues that the Commission's decision that the statute of limitations bars his claim for job-related hearing loss is not supported by substantial evidence. We remand to the Commission for resolution of the estoppel issue. We base our decision upon the opinion rendered in the companion case, Shepard v. ALCOA, 75 Ark. App. , S.W.3d (Jan. 9, 2002).

Chism began working for ALCOA on December 9, 1968, and currently works as an electrician for ALCOA. He worked twenty-four years as an electrician in the mine. In 1990, due to problems associated with a 1988 heart attack, he was moved to an office in the electrical department.

ALCOA administered a pre-employment audiogram to Chism on November 25, 1968. In 1981, Chism was informed that there had been a decrease in his hearing ability. The results of a hearing test administered in 1990, which Chism signed, indicated he was hearing impaired. He was notified again in 1991 that there had been a decrease in his hearing ability.

Chism filed his claim for benefits on March 2, 1993. At the hearing held before the ALJ, Chism presented 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. Chism also presented evidence that his union had asked ALCOA for information on employees who hadsome form of hearing loss. The Commission stated the following when it refused to entertain Chism'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 Chism 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.

On April 24, 1996, Chism filed a written brief before the ALJ that contained an eight-page discussion on the issue of estoppel. The Commission rendered its initial opinion on March 11, 1998. These dates clearly establish that Chism raised the argument of estoppel nearly two years prior to the decision of the Commission. Because we find that Chism's argument was raised and preserved for appeal, we remand for resolution of the issue ofestoppel. Therefore, we do not reach Chism's sufficiency argument.

This memorandum opinion is issued pursuant to our per curiam opinion, In re: Memorandum Opinions, 16 Ark. App. 301, 700 S.W.2d 63 (1985).

Remanded.

Stroud, C.J., and Hart, J., agree.