Court of Appeals Affirms Decision Finding Tinnitus Related to Work; Credits Dr. Tyler Over Dr. Hoisington

The case of Square D Company v. Plagmann,No. 1-869 (Iowa App. Dec. 21, 2011) addressed an issue that does not appear frequently before the appellate courts - the question of tinnitus.  In Plagmann, the court concluded that the decision of the deputy commissioner who found that claimant's tinnitus was related to work was supported by substantial evidence.

Dr. Tyler concluded that claimant's work with Square D had resulted in hearing loss and tinnitus, and provided a 4.5% impairment rating.  Dr. Tyler also found, incorrectly, that claimant had not worn hearing protection until he had worked with the employer for fourteen years (claimant had testified that even though there was no hearing protection program, he had worn hearing protection).  Dr. Hoisington concluded that claimant's hearing loss and tinnitus were not related to his work, in part because his hearing loss continued to worsen after he left work.  The deputy who heard the case sided with Dr. Hoisington, but refused to allow a late report submitted by Dr. Hoisington.  On appeal, the deputy deciding the case found that Dr. Tyler's experience and credentials were superior to those of Dr. Hoisington, and concluded that claimant's injuries had led to a 10% industrial disability.

On appeal, the employer appealed the finding that hearing loss and tinnitus were related to employment, the extent of disability and the failure to admit Dr. Hoisington's late submitted report.  On the main question, the court found that the appeal decision was supported by substantial evidence, notwithstanding the fact that Dr. Hoisington's report may have been based on a more accurate reading of the history.  On the extent of disability issue, the court found although claimant had retired from Square D and moved to Florida, he was looking for work there and had not disengaged from the workplace. 

On issue of the exclusion of the Hoisington report, it is somewhat unusual that the deputy excluded the report, which was submitted two weeks before the hearing.  The experience of most practitioners is that such a report would not have been excluded.  Nonetheless, in this case the report was excluded, and the court indicated that there was no abuse of discretion in excluding the report. 

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