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PMX Industries v. Reich

Court of Appeal of Iowa

May 30, 2013

PMX INDUSTRIES and LIBERTY MUTUAL INSURANCE, Petitioners-Appellants,
v.
STEVEN J. REICH, Respondent-Appellee.

         Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.

         An employer and its insurer appeal from the district court's affirmance of an award of workers' compensation benefits.

          Sarah W. Anderson and John M. Bickel of Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for appellants.

          Bob Rush of Rush & Nicholson, P.L.C., Cedar Rapids, for appellee.

          Heard by Eisenhauer, C.J., and Potterfield and Tabor, JJ.

          POTTERFIELD, J.

         An employer, PMX Industries, and its insurer, Liberty Mutual Insurance, appeal from the district court's affirmance of an award of workers' compensation benefits to Steven Reich. The commissioner found Reich's tinnitus and hearing loss were work related, he had experienced a thirty percent industrial disability, and the agency awarded benefits accordingly. The district court affirmed on judicial review. On appeal, the employer contends the workers' compensation commissioner misinterpreted the law in rejecting their affirmative defense of untimely notice of tinnitus, erred in finding Reich's hearing loss and tinnitus were caused by his work at PMX, erred in combining the effects of tinnitus and hearing loss in determining industrial disability, and even assuming Reich has suffered compensable hearing loss and tinnitus, the finding of thirty percent industrial disability is excessive. For the reasons that follow, we affirm.

         I. Background Facts and Proceedings.

         Steven Reich graduated from high school in 1984. He worked and attended community college from 1987-1990, where his instruction included automated systems technology and electronics.

         In 1997, Reich started working for PMX Industries (PMX) as a maintenance electrician. Reich was in good health at the time he began his employment at PMX. He underwent a pre-employment physical, including a baseline audiogram, reflecting no ratable hearing loss but showing a slight high-frequency loss in the left ear.

         "PMX is generally a noisy work environment." On January 14, 1998, Fremont Compensation Insurance Group regional industrial hygiene manager, Gary M. Kehoe, provided a detailed report to PMX following a "hazardous noise evaluation" conducted on November 12 and 13, 1997. Kehoe's study detailed sound level and audio dosimeter measurements in the facility. The study noted that most of the workforce was on a rotating twelve-hour shift, which "results in longer daily exposures" than the eight-hour shift OSHA studies normally review. Kehoe pointed out that using the regular OSHA measurement criteria, PMX will "underestimate the risk for hearing loss in your workers." Kehoe adjusted the Permissible Exposure Limits (PEL) for the longer exposure times.

         Kehoe summarized his findings:

Based on the conditions observed and exposure parameters determined, the following conclusions were reached regarding employee exposures to those environmental factors evaluated during this survey.
1. Essentially all the measurements indicated workers are exposed to average noise levels exceeding the [Occupational Safety and Health Administration] OSHA Action Level and the [American Conference of Governmental ...

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