Court of Appeals Addresses Tinnitus and Statute of Limitations Issues

In PMX Industries v. Reich, No. 12-1824 (Iowa App. May 30, 2013), the court addressed issues of tinnitus and hearing loss in a workers' compensation setting, and addressed the issue of when notice had to be provided for a tinnitus claim.  Claimant was a long time worker for PMX, which was an admittedly noisy facility.  Claimant testified that although he wore hearing protection, he would often have to remove the hearing protection in order to hear people talking within the plant. In 2008 he was diagnosed with a hearing loss and resigned from his employment.

The doctor who addressed the hearing loss issues for the employer, Dr. Taylor, found that claimant had a 2.2% bilateral hearing loss.  Claimant was referred to Dr. Marlan Hansen at the University of Iowa, who agreed that claimant had noise-induced hearing loss.  Claimant was then referred to Dr. Plakke, who noted hearing loss, but indicated that because of the continued loss of hearing after he left PMX, this was not noise related.  He also indicated that claimant had tinnitus.

Claimant filed a petition and was evaluated by Dr. Tyler.  In a questionnaire for Dr. Tyler, claimant indicated he began to experience tinnitus in 2006 or 2007.   Dr. Tyler found that there was a 2% hearing loss and an impairment rating of 4.5% for tinnitus.  Defendants sent claimant to Dr. Hoisington, who indicated that claimant's tinnitus was not significant, but even if it was, it was not related to work.

The arbitration decision credited Dr. Tyler and Dr. Hansen and found that both the hearing loss and tinnitus were related to work.  The decision found that defendants' notice defense was not raised in the post-hearing brief and also noted the the employer had notice of hearing loss and found that the tinnitus did not require a second notice to the employer.  The decision was affirmed on appeal without comment.

On judicial review,  the court found that defendants had actual notice of claimant's hearing loss, which provided sufficient notice of "all hearing injuries including tinnitus."  The court found substantial evidence that claimant was exposed to noise and deferred to the commissioner on which medical opinions to accept.  The court also found that the combining of disabilities to make one disability rating was appropriate.

On the notice issue, defendants argued that notice of hearing loss was not the same as notice of tinnitus.  Although defendants had made the argument that there had been untimely notice, the court concluded that defendants post-hearing brief had not addressed legal arguments concerning notice.  Defendants argued that the first  time to address this issue was on intra-agency appeal, but the court concluded defendants did have the opportunity to raise this issue at the arbitration level and had not raised this issue at the earliest possible moment.  The appellate court found that the employer had the opportunity to raise this issue at the deputy level, but had failed to do so.  Since the employer had the burden of proving the affirmative defense, the failure to raise the issue at the earliest possible opportunity was fatal to its arguments on lack of notice.

On the question of whether notice had been provided of the hearing loss, the court found that there was a sufficient factual basis to support the finding of actual notice.  On the issue of the experts, the court noted that this was a question of fact, and found that this fact was supported by substantial evidence.  On the issue of the combination of tinnitus and hearing loss to produce a single industrial loss, the court noted that when an individual suffered both a scheduled and unscheduled loss, it was appropriate to combine these to reach one industrial disability, citing Miller v. Lauridsen Foods, Inc., 525 N.W.2d 417, 420 (Iowa 1994).  Finally, the court found that the conclusion that claimant suffered a 30% industrial disability was not irrational, illogical or wholly unjustifiable.