dissenting. I cannot agree with the result in this case because I believe it completely disregards the statute of limitations for filing a workers’ compensation claim in this state. The majority is willing to recognize a special category of claimants, those who suffer from scheduled injuries, and permit them to file their claims at any time, regardless of when they were injured or became aware of their condition. In my opinion, this is an outrageous result which is unfair to employers and should not be the law.
Appellee began working for appellant Minnesota Mining & Manufacturing (“3M”) in August 1977, and his hearing was first tested by 3M in February 1978. The results of this baseline test were provided to appellant. There is no question that appellant knew he had a significant hearing deficiency in 1978. Appellee filed his claim for benefits in 1992.
Arkansas Code Annotated section ll-9-702(a)(l) (1987) provides, in pertinent part:
A claim for compensation for disability on account of an injury, other than an occupational disease and occupational infection, shall be barred unless filed with the commission within two (2) years from the date of the injury.
Injury means the state of facts which first entitle a claimant to compensation. Cornish Welding Shop v. Galbraith, 278 Ark. 185, 644 S.W.2d 926 (1983). Our courts have held that, for purposes of commencing the statute of limitations under section 11 — 9— 702(a)(1), the word “injury” is to be construed as “compensable injury,” and that an injury does not become “compensable” until (1) the injury develops or becomes apparent, and (2) the claimant suffers a loss in earnings on account of the injury. Donaldson v. Calvert-McBride Printing Co., 217 Ark. 625, 232 S.W.2d 651 (1950); Arkansas Louisiana Gas Co. v. Grooms, 10 Ark. App. 92, 661 S.W.2d 433 (1983); Shepherd v. Easterling Const. Co., 7 Ark. App. 192, 646 S.W.2d 37 (1983). The statute of limitations does not begin to run until both elements of the rule are met. Hall’s Cleaners v. Wortham, 311 Ark. 103, 842 S.W.2d 7 (1992).
The majority opinion points out that appellee has not suffered any loss of earnings because of his injury, and he cannot meet the second prong of the above two-prong test. Applying the rule of Hall’s Cleaners, appellee would not be entitled to any disability compensation unless and until he actually suffers a loss of earnings. To avoid this result, the majority has treated work-related noise-induced hearing loss as a scheduled injury for which benefits are awarded to an injured worker without regard to earning loss or employment status. With this, I can agree. Where I disagree is in the majority’s holding that the statute of limitations does not apply to scheduled injuries.
Any statute of limitations will eventually operate to bar a remedy, and the time within which a claim should be asserted is a matter of public policy, the determination of which lies almost exclusively in the legislative domain, and the decision of the General Assembly in that regard will not be interfered with by the courts in the absence of palpable error in the exercise of the legislative judgment. Owen v. Wilson, 260 Ark. 21, 537 S.W.2d 543 (1976); Hamilton v. Jeffrey Stone Co., 25 Ark. App. 66, 752 S.W.2d 288 (1988). The basic policy reasons for statutes of limitations have been expressed as follows:
Statutes of limitation find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost. (Citation omitted.) They are by definition arbitrary, and their operation does not discriminate between the just and the unjust claim, or the avoidable and unavoidable delay. They have come into the law not through the judicial process but through legislation. They represent a public policy about the privilege to litigate.
Owen, supra, at 26, quoting Chase Securities Corp. v. Donaldson, 325 U.S.304 (1945). For this court to abandon the statute of limitations for all scheduled injuries in general and for noise-induced hearing loss in particular is a step I am unwilling to take.
The majority has cited Larson’s treatise on Workers’ Compensation Law for the proposition that for scheduled injuries, compensation for a specified number of weeks is payable without regard to the presence or absence of wage loss during that period. Larson writes:
This is not, however, to be interpreted as an erratic deviation from the underlying principle of compensation law — that benefits relate to the loss of earning capacity and not to physical injury as such. The basic theory remains the same; the only difference is that the effect on earning capacity is a conclusively presumed one, instead of a specifically proved one based on the individual’s actual wage-loss experience.
4 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 58.11 at 10-492.91-.92(1998)(footnotes omitted)(emphasis added).
This theory means that a claimant seeking benefits for a scheduled injury is not required to prove a loss of earnings or earning capacity in order to be entitled to compensation. The impact on a claimant’s earnings or earning capacity is conclusively presumed.
Applying this theory to the two-prong test recited above, a work-related noise-induced hearing-loss injury does not become compensable until (1) the injury develops or becomes apparent, and (2) claimant suffers a loss in earnings on account of the injury, which loss is conclusively presumed. Because the statute of limitations does not begin to run until both elements of the rule are met, and because of the conclusive presumption as to loss of earnings, the statute of limitations with respect to work-related noise-induced hearing loss begins to run when the hearing loss becomes apparent to the claimant.
The burden of filing a claim within the statute of limitations is on the claimant. Plunkett v. St. Francis Valley Lumber Co., 25 Ark. App. 195, 755 S.W.2d 240 (1988); St. John v. Arkansas Lime Co., 8 Ark. App. 278, 651 S.W.2d 104 (1983). The court cannot extend the period of the statute of limitations on appeal, despite the fact that a claim may be meritorious. Miller v. Everett, 252 Ark. 824, 481 S.W.2d 335 (1972).
Here, appellant became aware of his hearing loss in February 1978. In my opinion, the statute of limitations began to run in February 1978, and appellant’s claim became time-barred in February 1980, pursuant to Ark. Code Ann. section ll-9-702(a)(l). Although appellant’s claim may be meritorious, I do not think we should extend the time for him to file his claim by some twelve years.
I respectfully dissent.
Griffen, J., agrees.