Hamilton v. Jeffrey Stone Co.

• Decision Date: 10 November 1982
• Docket Number: No. CA,CA
• Citation: 6 Ark.App. 333,641 S.W.2d 723
• Parties: Clayton HAMILTON, Employee, Appellant, v. JEFFREY STONE COMPANY, Employer, and the Travelers Insurance Company, Insurance Carrier, Appellees. 82-220.
• Court: Arkansas Court of Appeals

Page 723

641 S.W.2d 723

6 Ark.App. 333

Clayton HAMILTON, Employee, Appellant, v. JEFFREY STONE COMPANY, Employer, and the Travelers Insurance Company, Insurance Carrier, Appellees.

No. CA 82-220.

Court of Appeals of Arkansas.

Nov. 10, 1982.

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

Michael E. Ryburn, Little Rock, for appellees.

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.

Appellant is a 62-year-old man who was employed by Jeffrey Stone Company from 1957 to 1969. His duties included working on a rock crusher, a machine which emits large amounts of silica dust which appellant inhaled daily for twelve 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 security firm in January, 1970; he worked until December, 1977, when he had to stop working entirely because of problems with breathing and being short-winded. 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 disablement, 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), -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 because they violate the Equal Protection 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 appellant, 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 for the first time on appeal. Dodson Creek, Inc. v. Fred Walton Realty Co., 2 Ark.App. 128, 133, 620 S.W.2d 947, 949 (1981). We have applied that rule with equal force to appeals from the Arkansas Workers' Compensation Commission. Ashcraft v. Quimby, 2 Ark.App. 332, 336, 621 S.W.2d 230, 232 (1981).

Until now, this Court has not been asked whether constitutional questions must first be presented at the Commission level. The general rule is that the constitutionality of a statute will not be considered if raised for the first time on appeal. See e.g., Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980). This rule has also been followed by appellate courts in appeals from workers' compensation commissions and other administrative agencies. E.g., Lewis v. Anaconda Co., 168 Mont. 463, 543 P.2d 1339 (1975); Benson v. North Dakota Workmen's Compensation Bureau, 250 N.W.2d 249 (N.D.1977); and Unemployment Compensation Department v. Hunt, 17 Wash.2d 228, 135 P.2d 89 (1943); see also 3 A. Larson, The Law of Workmen's Compensation, § 78.12 (1976 & July, 1982 Supp.).

Even though the Commission may not have authority to declare statutes unconstitutional, we believe such issues should first be raised at the Administrative Law Judge or Commission level. Constitutional questions often require 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 Swafford v. Tyson Foods, Inc., 2 Ark.App. 343, 621 S.W.2d 862 (1981), 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 that it could not...