12.4 Restriction on Work
Hearing loss and tinnitus can result in isolation. Loud noise can make people more anxious, irritable, increase in pulse rate, blood pressure and produce stomach acid.
•He should not work around loud noise.
• He should not work in a situation where the noise levels are unpredictable.
• He should not work in dangerous situations where accurate concentration is required.
•He should not work in situations that are stressful.
Dr. Hansen submitted a response to points made by Drs. Plakke, Hoisington, and Tyler. Dr. Plakke criticized Dr. Tyler's analysis, as did Dr. Hoisington. On September 13, 2010, Dr. Tyler wrote a letter detailing the other expert opinions and specifically agreeing or rejecting particular findings and arguments. Dr. Tyler again concluded, "Based on the information available to me, I conclude that the sensorineural hearing loss and tinnitus experienced by Mr. Reich was probably a result of his work at PMX Industries. My opinions do not change following these three letters [from Drs. Hansen, Plakke, and Hoisington]."
The arbitration hearing was held on September 20, 2010. The filed hearing report indicates PMX asserted the affirmative defense of "[u]ntimely notice under [Iowa Code] section 85.23 [(2007)]."
At the time of the arbitration hearing, Reich was forty-four years old, married, and the father of four children. Reich was employed by John Deere, Inc., as an electrician earning $24.15 per hour. He testified about his work conditions at PMX, his hearing loss, and his tinnitus. Reich stated he reported ringing in his ears at an annual hearing test.
Robert Provencher, Jeff Puffet, Jerry Juergens, and Jennifer Meadows testified for PMX. Provencher, safety engineer for PMX, testified that PMX "does exceed the 85 deci[b]al OSHA action level." The record includes 2001, 2002, and 2004 surveys by senior industrial hygienist, Neil Sherman, of Compliance Services, Inc. Each indicated employee exposure to noise exceeding OSHA PEL's with minor exceptions. PMX conceded the 2004 noise study was the last study done and that noise levels had not changed.
Puffet, a former PMX electrical maintenance supervisor, testified he did not recall Reich telling him he was having any kind of hearing problems or ringing in his ears.
Juergens was a co-worker of Reich. He testified that it was "common practice" to loosen one's ear plugs at PMX. When asked if he was aware of any hearing problems Reich had, Juergens testified, "Not that I'm aware of. I guess we didn't actually talk about that type of thing."
Meadows was PMX's health services supervisor and scheduled annual hearing testing for employees. She explained that PMX provided employees with hearing conservation training and ear protection.
A posthearing brief was submitted by Reich on October 4, 2010. PMX was granted an extension and submitted its brief on October 6. In its brief, PMX wrote:
A significant conflict in the evidence exists as to when Claimant first started to experience tinnitus. Claimant's 3/31/08 PMX Incident Report only claims hearing loss in the right ear. Claimant repeatedly states he does not experience tinnitus in questionnaires completed after he terminated his employment at PMX. At the 03/20/09 examination with Dr. Bruce Plakke, audiologist, Claimant reported for the first time that he experienced tinnitus.
Claimant served claimant's 06/23/10 responses to Dr. Tyler's questionnaire and Dr. Tyler's 08/20/09 report on 08/20/09. August 20, 2009, days before hearing,  is the first time Respondents were aware that Claimant claimed he began to experience tinnitus in both ears in 2006-2007.
In the 2006-2007 time frame, Claimant received hearing conservation and PPE training as to what tinnitus was, what its causes were—one of which is noise exposure, and its serious nature. Claimant testified he knew what tinnitus was while at PMX. Jeff Puffet, Claimant's direct supervisor, testified Claimant had not reported tinnitus to him, it was a PMX policy that such a problem should have been reported, and tinnitus or ringing in the ears was discussed in safety training supported by co-electrician Jerry Juergens' testimony.
01/09/07 a standard threshold shift in the right ear was determined by audiogram testing; 12/19/07 a standard threshold shift in the left ear was determined by audiogram testing. Claimant testified he was provided his hearing test results. Claimant did not report any problems with tinnitus or noises in his ears or head when completing the 2006-2007 health questionnaires at the time of the hearing testing, before, or thereafter, until his March 2009 examination with Dr. Plakke. See Exhibits D-04 (Incident Report), C, A, and B. Claimant's responses to the PMX questionnaires all stated Claimant used his mandated hearing protection at work, there were non-work related noise exposures for which Claimant did not use hearing protection, he had a pre-existing, "known confirmed hearing loss, " but Claimant rated his hearing as "Good." There was nothing to alert or notify the employer that Claimant experienced tinnitus.
The evidence is Claimant had significant knowledge regarding tinnitus during his employment at PMX. Claimant acknowledged in cross examination he knew what tinnitus was.
Claimant's various reports on the onset of tinnitus cannot be reconciled. If the Tyler questionnaire is to be accepted, PMX did not have notice within the required 90 days as PMX's first notice was in March 2009 when Dr. Plakke's report was received. If the report to Dr. Plakke is to be accepted, the tinnitus did not occur until well after the Claimant left PMX and lacks a temporal relationship to PMX employment.
On January 11, 2011, an arbitration decision was filed. The presiding deputy commissioner observed that the "question of causal connection is essentially within the domain of expert testimony." The deputy outlined the various expert opinions and found that the
greater weight will be given to the conclusions of Dr. Tyler and Dr. Hansen. It is found that claimant has carried his burden of proof to show that his hearing loss and his tinnitus were caused by workplace exposure, that he has suffered an injury arising out of and in the course of his employment, and that he has incurred temporary and permanent disability as a result of that work injury.
The deputy observed that Reich had suffered an unscheduled injury, then noted and addressed the various factors to be considered in determining industrial disability. The deputy found "[t]he combination of hearing loss and tinnitus does have an adverse effect on [Reich's] earning capacity, " explaining "he may have to limit future job applications to work environments that do not have high noise levels if he does not wish to further damage his hearing, as recommended in his restrictions" and assigned an industrial disability of thirty percent.
The deputy commissioner next addressed PMX's affirmative defense of lack of timely notice under Iowa Code section 85.23, concluding PMX "fail[ed] to address this issue in their post-hearing brief" and did not provide argument to support the burden of proof. The deputy found "[t]he employer clearly had notice of claimant's hearing loss work injury" and "the fact that his noise exposure work injury also later resulted in tinnitus did not require a second or separate notice to the employer." The deputy concluded the "defendants have failed to carry their burden of proof to show that claimant failed to give notice of his work injury."
PMX appealed to the commissioner. PMX contested the deputy's findings of causation and industrial disability. It also asserted the deputy's rejection of its section 85.23 notice defense "is incorrect as a matter of fact and law." It argued that it had addressed the matter in its posthearing brief. PMX then argued that hearing loss and tinnitus required separate notices. PMX next asserted that "even assuming that Claimant experienced tinnitus in 2006 or 2007, . . . there is no evidence that Claimant notified PMX about his tinnitus within ninety days of when he should have recognized the nature, seriousness and compensable character of the tinnitus."
The commissioner affirmed the arbitration ruling, adopting it as the final agency decision without additional comment.
PMX sought judicial review in the district court, claiming the commissioner erred by "(1) finding it had notice of Reich's tinnitus; (2) relying on the opinions of Dr. Taylor and Pernetti as well as Drs. Hansen and Tyler; (3) disregarding the opinions of Drs. Hoisington and Plakke; (4) granting a single award of industrial disability; and (5) assigning 30% industrial disability." The district court concluded the commissioner found PMX had actual notice of Reich's hearing loss, which provided sufficient notice of "all hearing injuries including tinnitus." The court found substantial evidence supported the commissioner's findings as to Reich's noise exposure, and deferred to the commissioner's determination as to which of the expert opinions to accept. The district court further affirmed the commissioner's combining of injuries to make a single industrial disability award, citing Honeywell v. Allen Drilling Co., 506 N.W.2d 434, 436 (Iowa 1993). Finally, the district court found the industrial disability rating was based upon proper factors and supported by substantial evidence.
PMX appeals, contending the workers' compensation commissioner misinterpreted the law in rejecting its 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.
II. Scope and Standards of Review.
Iowa Code chapter 17A governs our review of the decisions of the workers' compensation commissioner. Iowa Code § 86.26 (2013); Midwest Ambulance Serv. v. Ruud, 754 N.W.2d 860, 864 (Iowa 2008). The factual findings of the commissioner are reversed only if they are not supported by substantial evidence. Iowa Code § 17A.19(10)(f) Midwest, 754 N.W.2d at 864. Evidence is substantial if a reasonable mind would accept it as adequate to reach a conclusion. Heartland Specialty Foods v. Johnson, 731 N.W.2d 397, 400 (Iowa Ct. App. 2007).
"When an agency has been clearly vested with the authority to make factual determinations, it follows that application of the law to those facts is likewise vested by a provision of law in the discretion of the agency." Burton v. Hilltop Care Center, 813 N.W.2d 250, 256 (Iowa 2012) (citation and internal quotation marks omitted). "[W]e may reverse the commissioner's application of the law to the facts only if it is irrational, illogical, or wholly unjustifiable." Ruud, 754 N.W.2d at 864).
In reviewing the district court's decision, we apply the standards of chapter 17A to determine whether our conclusions are the same as those reached by the district court. Clark v. Vicorp Rests., Inc., 696 N.W.2d 596, 603 (Iowa 2005).
PMX contends here that the "commissioner misinterpreted the law in holding that Claimant's notice of hearing loss also doubled as notice of tinnitus even though Claimant did not inform PMX of his alleged tinnitus." The hearing report filed before the September 20, 2010 arbitration hearing indicates PMX asserted the affirmative defense of "[u]ntimely notice under [Iowa Code] section 85.23." No further specification of the affirmative defense is in the record prior to or at the arbitration hearing. PMX did not assert at the arbitration hearing that separate notices were required.
Nor did the deputy commissioner rule that notice of hearing loss was sufficient to give notice of tinnitus. In the arbitration decision, the deputy commissioner concluded PMX "fails to address this [section 85.23 notice] issue in their post-hearing brief. So did Claimant. Defendants bear the burden of proof on this affirmative defense, yet they have provided no argument to support that burden."
On appeal, Reich argues the claim that separate notices are required was not made to the agency and is thus not preserved. PMX argues that its post-hearing brief "revealed PMX's position that notice of the hearing loss did not provide notice of tinnitus, as PMX clearly conceded that it had notice of the hearing loss." PMX's posthearing brief raised only factual issues and offered no legal arguments.
The district court addressed this issue as follows, and we adopt its ruling as our own:
As an initial matter, the Petitioners claim the Commissioner erroneously found they waived their notice argument. However, the Commissioner did not find the Petitioners waived this argument. Instead, the Commissioner found the Petitioners presented no argument addressing whether notice of hearing loss provides notice of tinnitus. A review of the Petitioners' agency brief and the hearing transcript show no argument on this issue. Instead, the agency brief addresses when Reich discovered his tinnitus under the discovery rule.¹ Therefore the Petitioners' agency brief and the hearing transcript provide substantial evidence to support the Commissioner's decision that the Petitioners presented no argument on the issue of whether notice of hearing loss also provides notice of tinnitus. Iowa Code § 17A.19(I0)(f).
¹ The parties' briefs before this Court continue to argue when Reich discovered his tinnitus under the discovery rule. The Commissioner found the Petitioners had notice of Reich's hearing injury and made no finding on when Reich discovered his tinnitus. This Court can only review the findings made by the Commissioner. See Office of Consumer Advocate, 432 N.W.2d at 156. To the extent the Petitioners ask for an original determination under the discovery rule, this Court has no authority to do so. See id.
(Citations to the administrative record omitted.)
On the narrow question of whether PMX provided argument to support its claim that separate notices were required for hearing loss and tinnitus, we agree with the deputy's statement, adopted by the commissioner and affirmed by the district court, that "Defendants bear the burden of proof on this affirmative defense, yet they have provided no argument to support that burden." PMX did provide argument on intra-agency appeal, but not before. PMX asserts this was its earliest opportunity to make such an argument.
"Generally, our review is limited to questions considered by the agency. Even issues of constitutional magnitude may be deemed waived on appeal if not raised before the administrative tribunal." Office of Consumer Advocate v. Iowa State Commerce Comm'n, 465 N.W.2d 280, 283 (Iowa 1991) (citations omitted). The Consumer Advocate court noted an exception, "an issue not raised in the initial pleading before the agency may be preserved for appeal if raised for the agency's consideration in a motion for rehearing." Id. The Consumer Advocate court ruled that the "exception" applied because the Office of Consumer Advocate "raised its claim of procedural unfairness at the earliest possible opportunity" and the opposing parties "were given the opportunity to address the issue in response." Id.
PMX did not raise its argument of separate notices at the earliest opportunity, and consequently, Reich did not have the opportunity to address the issue before the deputy. PMX clearly had the incentive and ability to raise the claim of the necessity of separate notices before the deputy. The employer has the burden of proving the affirmative defense of lack of notice. See DeLong v. Iowa State Hwy. Comm'n, 295 N.W. 91, 92 (Iowa 1940); cf. Markey v. Carney, 705 N.W.2d 13, 21 (Iowa 2005) (noting the proponent of an affirmative defense has the burden of proof). It was for PMX to assert and support its affirmative defense. It made no argument before the deputy that separate notices of tinnitus and hearing loss were required. We will not reverse a ruling based on a defense not asserted below. See Foods, Inc. v. Leffler, 240 N.W.2d 914, 919 (Iowa 1976) ("Any defense on the merits of the controversy should have been raised in the proceedings in which the merits were considered."). PMX thus failed to carry its burden to prove its affirmative defense.
We also note PMX's factual assertions in its notice arguments are inaccurate. In its appeal to the commissioner, PMX asserted:
[E]ven assuming that Claimant experienced tinnitus in 2006 or 2007 while at PMX . . . there is no evidence that Claimant notified PMX about his tinnitus within ninety days of when he should have recognized the nature, seriousness and compensable character of the tinnitus. Claimant repeatedly failed to report tinnitus on the questionnaires completed in connection with annual hearing evaluations.
Reich testified he noticed ringing in his ears in the last year or two of working for PMX. He further testified he informed a person doing a hearing test, "what's all this ringing I hear in my ears all the time." PMX sent Reich for annual hearing testing to St. Luke's and those test results were to be reported to the employer. "Notice to an agent is effective if the agent has a duty to receive that knowledge and report it to the principal." Meredith Outdoor Advertising, Inc. v. Iowa Dep't of Transp., 648 N.W.2d 109, 114 (Iowa 2002) (citing and quoting Tonelli v. United States, 60 F.3d 492, 495 (8th Cir. 1995)). Moreover, PMX's repeated assertion that Reich "failed to report tinnitus on the questionnaires" is misleading at best. The questionnaires do not ask whether the employee is experiencing tinnitus, but rather "severe ringing." That Reich did not experience "severe ringing" does not show he did not experience or report tinnitus.
B. Battle of the experts.
PMX next argues that the commissioner erred in finding Reich's hearing loss and tinnitus were caused by his employment at PMX, arguing the commissioner did not state valid reasons for rejecting the opinions of Drs. Hoisington and Plakke.
As acknowledged by PMX, medical causation presents a question of fact vested in the discretion of the commissioner. Cedar Rapids Sch. Dist. v. Pease, 807 N.W.2d 839, 844 (Iowa 2011). We thus will disturb those findings if they are not supported by substantial evidence. Id.
Evidence is not insubstantial merely because different conclusions may be drawn from the evidence. To that end, evidence may be substantial even though we may have drawn a different conclusion as fact finder. Our task, therefore, is not to determine whether the evidence supports a different finding; rather, our task is to determine whether substantial evidence, viewing the record as a whole, supports the findings actually made.
Id. at 845 (citations omitted).
Several experts provided opinions as to causation. Dr. Taylor and occupational audiologist Pernetti—both of whom were selected by PMX— determined Reich experienced noise-induced hearing loss. Pernetti reported that "OSHA indicates that cases are work related if an event or exposure in the work environment either caused or contributed to the resulting condition, and or significantly aggravated a preexisting injury or illness"; she was unable to rule out that the hearing loss was caused at least in part, to noise exposure at PMX. See Miller v. Lauridsen Foods, Inc., 525 N.W.2d 417, 420 (Iowa 1994) (" For workers' compensation purposes a cause is proximate if it is a cause; it need not be the only cause."). Dr. Hansen concluded Reich's hearing loss pattern is consistent with a noise-induced sensorineural hearing loss. Dr. Tyler attributed Reich's hearing loss and tinnitus to his work at PMX and discussed the reasons given by Drs. Plakke and Hoisington for their findings.
In this "battle of the experts, " the deputy gave greater weight to the conclusions of Drs. Tyler and Hansen, and that determination was adopted by the commissioner. As emphasized in Pease,
the commissioner, as fact finder, is responsible for determining the weight to be given expert testimony. Sherman v. Pella Corp., 576 N.W.2d 312, 321 (Iowa 1998). The commissioner is free to accept or reject an expert's opinion in whole or in part, particularly when relying on a conflicting expert opinion. Id.; see Huwe v. Workforce Safety & Ins., 746 N.W.2d 158, 161-62 (N.D. 2008) ("When confronted with a classic 'battle of the experts, ' a fact-finder may rely upon either party's expert witness."). The courts, in their appellate capacity, "are not at liberty to accept contradictory opinions of other experts in order to reject the finding of the commissioner."
807 N.W.2d at 850. Based on the record before us, we are satisfied that the commissioner's findings as to causation are supported by substantial evidence.
C. Combined effects of tinnitus and hearing loss.
PMX takes issue with the agency's award of industrial disability resulting from the combined effect of Reich's hearing loss and tinnitus. In Ehteshamfar, 555 N.W.2d at 453, the supreme court held that tinnitus should be compensated as an injury to the body as a whole, rather than as a hearing loss, "because tinnitus does not cause a person to be unable to hear; instead tinnitus causes a person to perceive sounds that do not exist." However, when an employee suffers both scheduled and unscheduled injuries and the injuries developed over the same period of time and share the same cause, we find no error in the commissioner combining them as one industrial disability. See Miller, 525 N.W.2d at 420 ("If an employee suffers both an injury to a scheduled member and also to part of the body not included in the schedule, then the resulting injury is compensated on the basis of an unscheduled injury.").
D.Industrial disability finding.
Finally, PMX argues that the assignment of thirty percent industrial disability is excessive. Because the commissioner's finding of industrial disability involves the application of law to the facts, we will only disturb the commissioner's ruling if "irrational, illogical, or wholly unjustifiable." Larson Mfg. Co., Inc. v. Thorson, 763 N.W.2d 842, 857 (Iowa 2009).
Much of PMX's argument here is based on its continued complaint that there is no evidence that Reich experienced tinnitus until after leaving its employ. The commissioner found otherwise. PMX also complains that Reich's earnings are similar to when he worked for PMX, and thus, he has suffered no loss of earning capacity. The deputy discussed Reich's age, education, current employment and earnings, work history, the restrictions Dr. Tyler recommended on future employment, and the difficulties tinnitus caused in Reich's communication abilities. Reich was forty-four at the time of the hearing. He has limited education. While he has found similar employment and his hourly wage is similar to his wage at PMX, he works fewer hours, and it has been recommended that he find work where noise levels are lower. The deputy found that the combination of hearing loss and tinnitus may limit Reich's future ability to work. We cannot say the agency's finding of thirty percent industrial disability is irrational, illogical, or wholly unjustifiable under the circumstances.
PMX failed to carry its burden of proving lack of timely notice pursuant to Iowa Code section 85.23. There is substantial evidence to support the finding of causation. The commissioner did not err in compensating the scheduled and unscheduled injuries as industrial disability. The finding of thirty percent disability was not irrational, illogical, or wholly unjustifiable. We therefore affirm the district court's ruling on judicial review upholding the commissioner's ruling.