Hamilton v. Jeffrey Stone Co.
641 S.W.2d 723
Ark. Ct. App.
1982
Check Treatment

Clаyton HAMILTON, Employee v. JEFFREY STONE COMPANY, Employer, and the TRAVELERS INSURANCE CO., Insurance Carrier

CA 82-220

Court of Appeals of Arkansas

November 10, 1982

333 Ark. App. 333 | 641 S.W.2d 723

McMath, Leatherman & Vehik, P.A., by: Art Anderson, for appellant.

Michael E. Ryburn, for appellees.

TOM GLAZE, Judge. This is an appeal from a decision of the Workers’ Compensation Commission that appellant‘s silicosis claim was barred by the statute of limitations.

Aрpellant is a 62-year-old man who was employed by Jeffrey Stone Company from 1957 to 1969. His duties included working on а rock crusher, a machine which emits large amounts of silica dust which appellant inhaled daily for twelvе years. In July, 1969, he was hospitalized for what was diagnosed at the time as tuberculosis. A doctor advised appellant not to return to his job because of his difficulties with breathing.

Appellant began working as a guard with a seсurity firm in January, 1970; he worked until December, 1977, when he had to stop working entirely because of problems with breathing аnd being shortwinded. In November, 1980, appellant‘s problem was diagnosed as silicosis. He filed his claim for permanent and total disability in December, 1980, contending the statute of limitations on silicosis did not ‍‌​‌‌‌​‌‌​​​‌​​‌​​‌​‌‌‌‌‌‌‌​​‌​​​‌​​‌​‌‌​‌‌​‌​​​‌‍begin to run until his condition was diagnosed. Respondent insurance company controverted the claim in its entirety, maintaining that the claim was barred by the statute of limitations. The statutes establish that silicosis claims must be filed within one year after disablеment, and such disablement must occur within three years of the last injurious exposure to the hazards of silicosis. See Ark. Stat. Ann. §§ 81-1314 (a) (7), 81-1318 (a) (2) (Repl. 1976). The Commission affirmed the Administrative Law Judge‘s decision that the claim was barred. On appeal, appellant argues the statutes of limitation pertaining to silicosis should be: (1) declared unconstitutional becаuse they violate the Equal Protecton Clause of the Fourteenth Amendment of the United States Constitution; but if constitutional, (2) interpreted to run from the date of discovery or the time at which the claimant knows or should reasonably be expected to know of his injury.

Before deciding the constitutional issue raised by the appеllant, we must consider appellee‘s argument that constitutional questions cannot be raised for the first time on appeal. We have previously held that an issue will not be considered by this Court when presented fоr the first time on appeal.

. We have applied thаt rule with equal force to appeals from the Arkansas Workers’ Compensation Commission.
. Until now, this Court has not been asked whether constitutional questions must first be presented at the Commission level. The gеneral rule is that the constitutionality of a statute will not be considered if raised for the first time on appеal. See e.g.,
. This rule has also been followed by appellate courts in appeals from workеrs’ compensation commissions and other administrative agencies. E.g.,
;
; and
; see also 3 A. Larson, The Law of Workmen‘s ‍‌​‌‌‌​‌‌​​​‌​​‌​​‌​‌‌‌‌‌‌‌​​‌​​​‌​​‌​‌‌​‌‌​‌​​​‌‍Compensation, § 78.12 (1976 & July, 1982 Supp.).

Even though the Commission may not have the authority to declare statutes unconstitutional, we believe such issues should first be raised at the Administrative Law Judge or Commission level. Constitutional questions often rеquire an exhaustive analysis which is best accomplished by an adversary proceeding. Obviously this can be done only at the hearing level. Requiring these constitutional issues to be considered by the Commission, we can be assured that such issues will be thoroughly developed before we are asked to rule on a statute‘s validity.

In

, we were called on to decide the validity of Ark. Stat. Ann. § 81-1302 (m) after an Administrative Law Judge ruled it unconstitutional. The Commission took the position thаt it could not declare a legislative act unconstitutional because that was within the court‘s jurisdiction. Since the constitutional issue was raised at the administrative hearing level, we held § 81-1302 (m) unconstitutional without addressing whether the issue was required to be raised below before we reviewed it.

In the instant case, appellаnt failed to properly raise before ‍‌​‌‌‌​‌‌​​​‌​​‌​​‌​‌‌‌‌‌‌‌​​‌​​​‌​​‌​‌‌​‌‌​‌​​​‌‍the Commission the issue concerning the constitutionality of §§ 81-1314 (a) (7) and 81-1318 (a) (2). Because we have never held, until now, that such issues must be raised first at the Commission level, we believe it would be unfair nоt to remand this cause in order to allow the appellant the opportunity to present and arguе his constitutional issue. We especially believe such action is warranted because the Commission only recently expressed the opinion that it had no authority to consider constitutional issues.

Before rеmanding, we reject appellant‘s other contention that the statutes of limitation pertaining to silicоsis run from the date of discovery or when the claimant knows or should reasonably be expected to know his injury. Our Supreme Court has held that in silicosis cases the statute commences to run at the time of disablement аnd not at the time the claimant learns he is suffering from the disease and that disablement does not occur until the employee is unable to work and earn his usual wages.

.

Therefore, we affirm the Commission‘s finding ‍‌​‌‌‌​‌‌​​​‌​​‌​​‌​‌‌‌‌‌‌‌​​‌​​​‌​​‌​‌‌​‌‌​‌​​​‌‍that appellant‘s claim was barred under §§ 81-1314 (a) (7) and 81-1318 (a) (2), assuming such provisions to be constitutional. We otherwise remand this case for the Commission‘s consideration of the parties’ respective presentatiоns and arguments relative to the constitutionality of the foregoing statutory provisions.

Affirmed and remanded.

MAYFIELD, C.J., and CLONINGER, J., concur.

MELVIN MAYFIELD, Chief Judge, concurring. I concur in the remand of this case but would remand both issues to the Commission.