INTERNATIONAL PAPER CO., INC., and OLD REPUBLIC INSURANCE, Petitioners-Appellants, vs. JOHN BUEKER, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-239 / 08-1536
Filed May 6, 2009
INTERNATIONAL PAPER CO., INC.,
and OLD REPUBLIC INSURANCE,
Petitioners-Appellants,
vs.
JOHN BUEKER,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Donna L. Paulsen,
Judge.
Employer and insurance carrier appeal the district court’s ruling on petition
for judicial review affirming the commissioner’s award of workers’ compensation
benefits. AFFIRMED.
James M. Ballard and Rebecca M. Threlkeld of Cutler Law Firm, P.C.,
West Des Moines, for appellants.
Gregory A. Johnson of Johnson & Skewes, Fort Madison, for appellee.
Considered by Mahan, P.J., and Miller and Doyle, JJ.
2
MAHAN, P.J.
International Paper Company, Inc. and its insurer, Old Republic Insurance,
(collectively “International Paper”) appeal the district court’s ruling on petition for
judicial review affirming the workers’ compensation commission’s final agency
decision awarding workers’ compensation benefits to John Bueker. We affirm.
I. Background Facts and Proceedings.
John Bueker was forty-eight years old at the time of the evidentiary
hearing. Bueker was a high school graduate, but had no further education or
training. The majority of his work history was in the paper mill industry. 1 Bueker
began working as a broke beater operator at the International Paper plant in
1978. At that time, the plant was owned by Consolidated Packaging. In 1981
Bueker became a winder helper, and was then promoted to winder man. The
plant closed during the flood of 1993. The plant reopened in January 1994 under
the ownership of 4M. In 1997 the plant was sold to Box USA, and in 2004 the
plant was again sold to International Paper. Throughout the changes in the
plant’s ownership, Bueker’s employment was continuous, and he maintained his
seniority and job position. He was promoted several times, and his last position
at the plant was as machine tender, which he performed for thirteen years. He
worked mostly eight- to twelve-hour shifts, with some sixteen-hour shifts. The
International Paper plant was closed in August 2005 due to economic reasons.
Throughout his work at the plant, from 1978 to 2005, Bueker was exposed
to loud noises from a machine that produced paper.
1
Furthermore, Bueker
Bueker’s only other work experience included working as a meat cutter in a grocery
store in high school, and since September 2005, Bueker had worked as a quality control
operator at the Iowa Ordnance plant.
3
testified he worked within twenty-five feet of an “extremely loud” siren that was
needed to alert the machine tender over the noise of the machine when there
had been a failure on the machine. The siren would sometimes go off for thirty
minutes at a time. Bueker was also subject to a steam whistle located on top of
the siren, which would go off when pressure built up in the machine. Although
Bueker wore hearing protection throughout his employment, both the siren and
the steam whistle could be heard approximately sixteen blocks from the plant
and caused neighbors to complain about the noise.
The plant had conducted regular hearing tests since 1979. Bueker first
noticed ringing in his ears, or tinnitus, in 1982. The tinnitus would be intermittent,
however, and during the plant’s periodic hearing exams, Bueker did not always
report that he had noises in his ears. Furthermore, Bueker reported that some of
his hobbies (i.e., dirt bikes, loud music, and power tools) exposed him to loud
noises.2 Since Bueker first began experiencing tinnitus in 1982, his condition
gradually worsened. In 1999 it was noted that Bueker had some mild hearing
loss. However, according to Bueker, his hearing loss was not an issue until he
failed a hearing test in November 2004.
By that time, Bueker’s tinnitus had
become constant. Currently, the constant ringing in Bueker’s ears makes it hard
for him to sleep, which leaves him tired and feeling sick throughout the day. He
also has difficulty concentrating and communicating with others.
After Bueker failed his hearing test in November 2004, International Paper
sent him to be evaluated by an otolaryngologist, Dr. Dean Lyons. Dr. Lyons
2
Bueker had owned a dirt bike in 1978, but he had not ridden it often. Bueker did not
actually own his own power tools.
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opined that Bueker sustained tinnitus caused by work-related noise exposure,
and gave Bueker a four percent permanent impairment rating due to the tinnitus.
Dr. Lyons further opined that two-and-a-half percent of Bueker’s permanent
impairment was attributable to his last years of employment at the International
Paper plant. Bueker was also evaluated by an audiologist, Dr. Marvin Engelberg,
who opined that Bueker’s tinnitus produced no permanent impairment.
After the International Paper plant closed in August 2005, Bueker obtained
employment at the Iowa Ordnance plant in a quality control position. He applied
for a position with the Santa Fe Railroad, but was not hired due to “safety
reasons,” which he presumed was his hearing. Bueker has had to work hard to
learn his current position at Iowa Ordnance, due to his difficulty concentrating
and understanding training instructions.
He has been pursuing another job
opportunity at a different company.
Bueker sought workers’ compensation benefits. His stated injury date was
August 29, 2005, his last day of employment with International Paper.
The
deputy workers’ compensation commissioner heard Bueker’s claim for workers’
compensation benefits against International Paper on February 22, 2007. The
deputy concluded Bueker’s tinnitus arose out of and in the course of his
employment with International Paper. The deputy further concluded that as a
result of his tinnitus, Bueker sustained a permanent impairment and suffered a
fifteen percent loss of earning capacity. International Paper appealed, and the
second deputy acting as the workers’ compensation commissioner affirmed.3
For simplicity’s sake, the second deputy acting as the workers’ compensation
commissioner will hereinafter be referred to as the “commissioner.”
3
5
Thereafter, International Paper filed a petition for judicial review.
On judicial
review, the district court found the commissioner’s decision was supported by
substantial evidence. International Paper appeals.
II. Scope and Standard of Review.
Iowa Code chapter 17A governs our review of the decisions of the
workers’ compensation commissioner.
Iowa Code § 86.26 (2007); 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 App. 2007). We will reverse the agency’s application of the law to the
facts if we determine its application was “irrational, illogical, or wholly
unjustifiable.”
Meyer v. IBP, Inc., 710 N.W.2d 213, 218 (Iowa 2006).
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).
III. Issues on Appeal.
A. The Sustained Injury.
Bueker’s claim for workers’ compensation benefits for his tinnitus arises
under Iowa Code chapter 85. The statute of limitations for such claims is “two
years from the date of the occurrence of the injury for which benefits are
claimed . . . .” Iowa Code § 85.26(1). In cases such as this, where the injury
6
complained of is cumulative, not traumatic, the worker is entitled to the benefit of
the discovery rule. See, e.g., McKeever Custom Cabinets v. Smith, 379 N.W.2d
368, 373 (Iowa 1985) (finding that cumulative injuries are those that develop over
time and eventually result in a compensable disability); Chapa v. John Deere
Ottumwa Works, 652 N.W.2d 187, 189 (Iowa 2002) (stating that tinnitus is a
cumulative injury subject to the discovery rule). Under the discovery rule, the
statute of limitations does not begin to run until the worker recognizes, or should
recognize, the “nature, seriousness and probable compensable character” of the
injury. Chapa, 652 N.W.2d at 189. “A worker’s knowledge of the three triggering
factors may be actual or imputed from the record.” Id.
International Paper argues the workers’ compensation commissioner
erred in finding Bueker sustained an injury that arose out of and in the course of
his employment at International Paper.
International Paper contends that if
Bueker sustained a tinnitus injury, his date of injury was in 1982, when he first
experienced ringing in his ears—more than twenty years before his employment
with International Paper began. International Paper claims that, following the
supreme court’s decision in Chapa, 652 N.W.2d at 189-90, the decision of the
workers’ compensation commissioner in this case is “[b]ased upon an erroneous
interpretation of a provision of law whose interpretation has not clearly been
vested by a provision of law in the discretion of the agency.”
§ 17A.19(10)(c).
Iowa Code
7
International Paper contends Bueker’s injury is analogous to the worker’s
injury in Chapa.4
International Paper claims that although Bueker was not
formally diagnosed with tinnitus until 2004, he recognized the nature of his
tinnitus in 1982, and should have recognized the seriousness of his tinnitus in
1982 or within a few years thereafter. International Paper further argues that
Bueker should have known the probable compensable nature of his tinnitus well
before 2004, and even if he did not, he had more than enough information to
trigger a duty to investigate whether the tinnitus was work-related. See Ranney
v. Parawax Co., 582 N.W.2d 152, 155-156 (Iowa 1998).
Although we agree the facts of Chapa are similar to the facts before us (as
most workers’ compensation cases involving tinnitus likely are), we find section
17A.19(10)(c) does not apply in this case. Whether a worker knew or should
have known of the nature, seriousness, or compensable nature of an injury is a
question of fact to be determined by the commissioner. Midwest, 754 N.W.2d at
865. Such factual findings of the commissioner are reversed only if they are not
supported by substantial evidence, or upon a showing that the commissioner’s
4
In Chapa, the supreme court evaluated a worker’s claim for tinnitus. Chapa, 652
N.W.2d at 188-90. The worker first noticed a “very strange” ringing in his ears in 1983,
when the ringing awakened him from sleep and affected his concentration and
communication at work. Id. at 189. The worker retired in 1995, but was not formally
diagnosed with tinnitus until 1997. Id. He thereafter sought workers’ compensation
benefits. Id. The workers’ compensation commission determined the worker’s claim
was time barred under section 85.26(1), and the deputy commissioner noted that the
limitations period on his claim may have begun running as early as 1983. Id. On judicial
review, the district court affirmed the commission’s decision. Id.
On appeal, the supreme court affirmed, determining that although the worker was
not formally diagnosed for tinnitus until 1997, the worker realized the nature and
seriousness of his tinnitus in 1983, and knew or should have known the compensable
nature of his injury well before 1997. Id. at 189-190. The court reiterated the welldefined rule that “a worker has a duty to investigate whether an injury—even a latent
one—is work-related and, hence, potentially compensable.” Id. at 190.
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application of law to the facts is “irrational, illogical, or wholly unjustifiable.” Id.
As the supreme court recently stated:
In determining whether the statute of limitations began to run, the
commissioner used the correct legal standard, namely, whether
[the worker] acting as a reasonable person knew or should have
known that her physical condition was serious enough “to have a
permanent adverse impact on the claimant’s employment or
employability . . . .” As a result, the provisions of Iowa Code section
17A.19(10)(c), which vest authority in this court to reverse an
agency determination based upon an erroneous interpretation of
law not vested in the agency’s discretion, has no application.
Instead, this court can reverse the decision only if the
commissioner’s factual determinations are not supported by
substantial evidence as provided in Iowa Code section
17A.19(10)(f) or upon a showing that the commisssioner’s
application of law to the facts of this case meets the demanding
“irrational, illogical, or wholly unjustifiable” standard of section
17A.19(10)(m).
Id.
Furthermore, in this case Bueker first noticed ringing in his ears in 1982.
Unlike Chapa, however, the ringing was not constant and did not affect his
employment. As the district court noted, “Until the paper mill closed in 2005, the
Respondent’s tinnitus had been a mere distraction and had never actually
interfered with his job performance.”
We agree.
Upon our review, we find
International Paper has failed to sustain its burden to show the commissioner’s
factual determinations with regard to when Bueker discovered his tinnitus are
lacking in substantial evidence. Iowa Code § 17A.19(10)(f). We further find the
commissioner’s application of the law to the facts is not irrational, illogical, and
wholly unjustifiable. Id. § 17A.19(10)(m).
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B. Industrial Disability.
Industrial disability measures the injured worker’s lost earning capacity.
Larson Mfg. Co., Inc. v. Thorson, ___ N.W.2d ___, ___ (Iowa 2009). It is based
on a number of factors, including: the worker’s functional impairment, age,
education, qualifications, and ability to engage in similar employment. Id. Proof
of an actual reduction in the worker’s earnings is not essential to establish a loss
of earning capacity. Id. The commissioner’s determination of industrial disability
is a mixed question of law and fact, “as the determination of industrial disability
required the commissioner to apply established law (the factors considered in
determining whether an industrial disability occurred) to the facts.”
Id.
We
therefore review this issue under the “irrational, illogical, or wholly unjustifiable”
standard. Id.; see also Iowa Code § 17A.19(10)(m).
International Paper challenges the sufficiency of the evidence supporting
the commissioner’s findings that Bueker sustained a fifteen percent industrial
disability.
Specifically,
International
Paper
contends
(1)
Bueker
has
demonstrated that he retains the ability to be gainfully employed, (2) the agency’s
justifications for its conclusions are not supported by objective medical evidence,
and (3) the medical expert relied upon for the functional impairment rating
considered inappropriate factors.
With regard to Bueker’s claimed industrial loss, the deputy noted Bueker’s
age, education, qualifications, work experience, his efforts to obtain new
employment, and his struggles to learn new positions. As the deputy stated:
The claimant has significant problems in concentrating and learning
as a result of the tinnitus condition. He has been able to overcome
10
these problems to learn a new career but this has been difficult and
has not been without incident. The claimant also has trouble
sleeping.
Considering all factors of industrial disability it is
concluded that the claimant has sustained a 15 percent loss of
earning capacity entitling him to 75 weeks of permanent partial
disability pursuant to Iowa Code section 85.34(2)(u).
On intra-agency appeal, the commissioner adopted the deputy’s findings and
further noted that the medical assessment of Dr. Lyons was credible and reliable:
Given his superior qualifications, the credibility of the views of Dr.
Lyons turns on his understanding of the claimant’s past noise
exposure.
The hearing deputy felt he possessed sufficient
knowledge to render a sound opinion and I must agree. Much of
what defense counsel claims was outside of the knowledge of Dr.
Lyons, were exposures only the defense counsel felt significant.
Also, whether or not claimant suffered other significant noise
exposure, the fact remains that the work exposure was significant,
if not the most significant causative factor.
Although Bueker was able to find a job quickly after his employment with
International Paper ended, his transition was challenging, and he continues to
seek other employment. We find the arguments raised by International Paper to
be without merit. Substantial evidence in the record supports the determination
made by the commissioner in this case. A reasonable person would find the
evidence adequate to reach the same conclusion. We cannot therefore say the
commissioner’s decision was irrational, illogical, or wholly unjustifiable, and we
affirm on this issue.
IV. Conclusion.
We affirm the decision of the district court and the workers’ compensation
commissioner.
AFFIRMED.
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