This appeal comes to us from the Arkansas Workers’ Compensation Commission. Appellant, Clayton Hamilton, now deceased, appeals from a decision of the full Commission dated April 30, 1986, which held that Arkansas Statutes Annotated §§81-1314(a)(7) and -1318(a)(2) (Repl. 1976) (recodified at Ark. Code Ann. §§ 11-9-601(g)(1)(B) and 11-9-701 (a)(2)(A) (1987)) are valid. We affirm.
Appellant was employed by appellee, Jeffrey Stone Company, from 1957 until 1969 as a rock crusher. In this capacity, appellant was exposed to silica dust. In 1969, appellant was hospitalized and treated for tuberculosis. Appellant was thought to have been cured and was released to return to work; however, his physician advised him not to return to the same type work. Appellant found employment as a security guard, a position he held until 1977 when breathing difficulties necessitated his retirement. In 1980, appellant consulted a different physician who diagnosed his condition as silicosis. Appellant immediately filed a claim for workers’ compensation benefits which was denied because the statute of limitations had run.
On the first appeal of this case before the Arkansas Court of Appeals, appellant challenged the constitutionality of the silicosis limitations statutes, Ark. Stat. Ann. §§ 81-1314(a)(7) and -1318(a)(2). This court in Hamilton v. Jeffrey Stone Co., 6 Ark. App. 333, 641 S.W.2d 723 (1982), remanded the case to allow appellant the opportunity to argue the constitutional issues for the following reasons:
In the instant case, appellant 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 not to remand this cause in order to allow the appellant the opportunity to present and argue his constitutional issue.
Id. at 335-36, 641 S.W.2d at 725. On remand, the Commission upheld the constitutionality of the foregoing statutes and the case was again appealed to this court. In an unpublished opinion by this court, we affirmed the Commission’s decision.
Appellant then petitioned the Arkansas Supreme Court for review. Review was granted from this court’s unpublished opinion and the supreme court reversed and remanded the case to this court for a decision on the constitutionality of the above statutes stating we “refused to reach the constitutional questions although those issues were argued and briefed before the Commission and the court of appeals.” Hamilton v. Jeffrey Stone Co., 293 Ark. 499, 739 S.W.2d 161 (1987). Therefore, the instant appeal represents the third appearance of this case before our court.
In approaching questions pertaining to the constitutionality of legislative acts, it is appropriate to keep in mind basic principles regarding the presumptions and burdens of proof involved. It is well settled that before an act may be struck down as unconstitutional, it must clearly appear that the act is at variance with the Constitution. Handy Dan Improvement Center, Inc. v. Adams, 276 Ark. 268, 633 S.W.2d 699 (1982). There is a presumption of constitutionality attendant to every legislative enactment, and all doubt concerning an act must be resolved in favor of constitutionality. Holland v. Willis, 293 Ark. 518, 739 S.W.2d 529 (1987). If it is possible for the courts to construe an act so that it will meet the test of constitutionality, they not only may, but should and will do so. Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180 (1980). Also, the party challenging a statute has the burden of proving it unconstitutional. The Citizens Bank of Batesville v. Estate of Pettyjohn, 282 Ark. 222, 667 S.W.2d 657 (1984).
Applying the above law to the case at hand, appellant bears the burden of proving the unconstitutionality of §§ 81-1314(a) (7) and -1318(a)(2) which provide that a claim for compensation for disability from silicosis must be filed with the Commission within one year from disablement, provided disablement is within three years of the last injurious exposure to the hazards of the disease.
EQUAL PROTECTION
Appellant first argues that the above statutes are unconstitutional as violative of the equal protection clause of the fourteenth amendment to the United States Constitution. Appellant contends these provisions are more restrictive than the statute of limitations placed on industrial accident victims, particularly since the judicial adoption of the “discovery rule” which provides that the limitation period does not begin to run until the claimant knows or should reasonably be expected to know the nature and extent of his injuries. Woodard v. ITT Higbie Mfg. Co., 271 Ark. 498, 609 S.W.2d 115 (Ark. App. 1980).
In determining whether a classification denies the equal protection of the laws, the court must consider if it has a rational basis and is reasonably related to the purpose of the statute. Holland v. Willis, 293 Ark. 518, 739 S.W.2d 529 (1987). A classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation so that all persons similarly circumstanced shall be treated alike. Corbitt v. Mohawk Rubber Co., 256 Ark. 932, 511 S.W.2d 184 (1974).
The Supreme Court addressed the scope of state discretion in McGowan v. Maryland, 366 U.S. 420 (1961) that:
Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the States objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. [Citations omitted.]
Id. at 425-26.
Here, the legislature could reasonably find that the limitation period established for silicosis victims prevents litigation on claims too old to be successfully investigated and defended. Additionally, the legislature could conclude that the distinction between the limitation periods for silicosis as opposed to accidental injuries is needed because each malady has a different mode of detection and treatment.
The record does not contain any indication that this apparently reasonable basis does not exist. Furthermore, while we agree with Justice Glaze that the constitutionality of the statutes are ripe for resolution, the record reveals that appellant did not comply with Judge Glaze’s initial instruction to present proof on remand and argue the constitutional issue. The record contains no evidence to support appellant’s position. The abstract contains only the requested briefs and opinions of the administrative law judge, Commission, and this court. Appellant did not meet the burden required of him to show that there was no rational basis for the distinction between the limitation period for silicosis versus accident victims. On its face, the silicosis limitation statute is not arbitrary because all silicosis victims are treated alike with regard to the allotted time within which their claims for disability must be filed. Furthermore, the statutes in question grant silicosis victims a greater limitation period than victims of other occupational diseases who must file claims within one (1) or two (2) years after the last injurious exposure to the hazards of the disease.
In this case, appellant’s constitutional challenge to the silicosis limitations statute must fail for lack of proof that an arbitrary classification is involved or the statute is unsupported by a legitimate governmental interest. Considering the strong presumption of constitutionality and resolving all doubt in favor thereof, we find that appellant has not clearly demonstrated that Arkansas Statutes Annotated §§ 81-1314(a)(7) and-1318(a)(2) violate the equal protection clause of the United States Constitution. See Bill Dyer Supply Co. v. State, 255 Ark. 613, 502 S.W.2d 496 (1973); Green Star Supermarket, Inc. v. Stacy, 242 Ark. 54, 411 S.W.2d 871 (1967).
DUE PROCESS
As set out under the equal protection portion of this opinion, appellant has not borne his burden of proving a violation of the due process clause. Appellant argues that the statute of limitations for silicosis victims denies due process of law by setting limitation of action periods so brief that they amount to unreasonable denials of rights and remedies due to the slow, insidious nature of the disease.
It is clear that the legislature has the power to set the statute fixing the limitation period within which a claimant must file a claim for benefits. As decided in Owen v. Wilson, 260 Ark. 21, 537 S.W.2d 543 (1976), the vital question is one of reasonableness, and the courts may not strike down a statute of limitations unless the period before the bar becomes effective is so short that it amounts to a virtual denial of the right itself or it can be said that the legislature has committed palpable error.
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. Id.
Here, without sufficient proof to the contrary, we cannot say that the legislative determination of three years from the date of last exposure or one year from disablement is an unreasonably short time for silicosis victims to discover and assert their cause of action. Appellant presented no sufficient proof of record that the limitation period imposes an unreasonably short time for silicosis victims to file claims; therefore, we find no basis to declare it unconstitutional.
Affirmed.
Coulson, J., agrees. Cracraft, J., concurs.