Opinion
No. 97 / 01-0850.
Filed July 17, 2002.
Appeal from the Iowa District Court for Black Hawk County, JAMES C. BAUCH, Judge.
Weyerhaeuser Company appeals from the district court's ruling on judicial review reversing the workers' compensation commissioner's decision denying Calvin Meihost's claim for an alleged occupational hearing loss under Iowa Code chapter 85B. REVERSED AND REMANDED WITH DIRECTIONS.
Richard C. Garberson and Jennifer E. Rinden of Shuttleworth Ingersoll, P.L.C., Cedar Rapids, for appellant.
Robert C. Andres of Felton, Martin Andres, P.C., Waterloo, for appellee.
This appeal from a district court's ruling on judicial review raises issues similar to those we decided in Grundmeyer v. Weyerhaeuser Co., ___ N.W.2d ___ (Iowa 2002), which we filed today. In Grundmeyer, we concluded that when Weyerhaeuser purchased some of the assets of Mead Container and assumed only limited liabilities on August 1, 1987, a new employer-employee relationship occurred for purposes of Iowa Code chapter 85B, the Occupational Hearing Loss Act. We therefore concluded Weyerhaeuser was liable only for any hearing loss the claimant may have suffered after the date of the purchase. Grundmeyer, ___ N.W.2d at ___. We reversed the district court's decision to the contrary. Id. at ___.
We then determined that substantial evidence supported the commissioner's finding that Grundmeyer failed to prove her hearing loss after the date of the purchase was caused by her exposure to excessive noise while employed by Weyerhaeuser. Id. at ___.
Here, the workers' compensation commissioner reached the same conclusion with respect to the claimant, Calvin Meihost, that is, a new employer-employee relationship occurred on the date of the purchase. For that reason, the commissioner found Weyerhaeuser was liable only for any hearing loss Meihost may have suffered after the date of the purchase. Given that the factual scenario and controlling statutory provisions (Iowa Code sections 85B.11 and 85B.8) are the same, our decision in Grundmeyer controls on this issue. We therefore reverse the district court's contrary ruling.
Left for our determination is whether substantial evidence supports the commissioner's finding that Meihost failed to prove by a preponderance of the evidence that he incurred a work-related and noise-induced hearing loss after August 1, 1987, the date of the purchase. The district court did not reach this issue.
Richard Tyler, Ph.D., an audiologist and Meihost's expert, examined Meihost. He summarized his findings as follows:
There are several important points in Mr. Meihost's case:
• There is no medical history that could account for the hearing loss.
• There is no familiar history that could account for the hearing loss.
• The audiogram showed both a high-frequency and a low-frequency hearing loss in 1984, when he worked for Mead.
• There is no previous work-related or recreational-activity noise exposure.
• The audiograms obtained from 1984 generally show hearing worse at 4000 Hz compared to hearing at 6000 and/or 8000 Hz. This portion of his hearing loss could be due to noise exposure. In addition, there is a low-frequency component of his hearing loss, present in 1984, which was probably initially related to an etiology other than noise induced hearing loss. It is possible that later exposures to noise contributed to an additional hearing loss.
• A significant hearing loss was observed in 1984 at an age of 53 years. Thus, the hearing loss cannot be attributed to aging.
• Mr. Meihost was exposed to loud noise over several years while employed . . . in the "box" plants.
• Audiograms were provided from 1984 to 1998. The high frequency thresholds appear fairly stable from 1988 to 1994. However, there is evidence that some deterioration occurred in his hearing from 1994 to 1995, and from 1995 to 1998.
Based on the above summary, I conclude that Mr. Meihost has two causes of hearing loss. The low-frequency hearing loss is probably not primarily from noise exposure at the "box" plants. The high-frequency loss is probably influenced by noise at his work at the "box" plants. Furthermore, I conclude a significant hearing loss occurred while he worked for Weyerhaeuser and that this was a result of exposure.
(Emphasis added.)
E.L. Grandon, M.D., Weyerhaeuser's expert, also examined Meihost. He concluded:
The audiograms that were sent to me go back only as far as 1988. These are rather obvious that all of the audiograms are the same configuration, showing a rather symmetrical horizontal loss at the average 50 dB level for speech reception. . . . This, of course, would be very unusual seen in an occupational hearing loss. Then again, if there was any evidence of an occupational hearing loss, it would have been seen on audiograms much earlier than 1988, perhaps in the 1960s and early 1970s. However, it's my opinion that this patient's hearing loss is more than likely hereditary or congenital.
(Emphasis added.)
In a later letter to Meihost's counsel, Dr. Grandon clarified his earlier opinion:
Calvin Meihost's audiograms indicate fairly flat bilateral losses, not at all typical of a noise-induced hearing loss. . . . This employee might be considered one of individual susceptibility, that is, regardless of how innocent the noise level is, there will always be individuals with severe losses. . . . I think Mr. Meihost fits in the category of that the noise levels certainly didn't produce a classic noise-induced hearing loss audiogram in him.
Joseph Sataloff, M.D., reviewed Meihost's records on behalf of Weyerhaeuser. He concurred with Dr. Grandon's opinion:
Mr. Meihost's time weighed average of noise exposure indicates that he has worked in noise loud enough to cause hearing damage but certainly not the flat type of hearing loss that he now demonstrates.
. . . .
[H]e does have a substantial bilateral nerve deafness. . . . [H]is discrimination score is 56% and 60% which is extremely low, and this type of reduced discrimination cannot be produced by high noise levels which damage the cochlear outer hair cells rather than the nerve proper. I believe the diagnosis is either genetic or hereditary, progressive nerve deafness. His present type of hearing loss cannot be produced by occupational noise but is common in a genetic or hereditary etiology.
In a subsequent letter, Dr. Sataloff explained, "[T]he flat type of hearing that Mr. Meihost has simply cannot be produced by the type of noise exposure to which he was exposed. . . . Mr. Meihost does have a bilateral nerve hearing loss; however, it is not due to his occupational noise exposure at the company." (Emphasis added.)
The commissioner gave more weight to the opinions of Dr. Grandon and Dr. Sataloff than she did to the opinion of Dr. Tyler. She described Dr. Grandon and Dr. Sataloff as "noted otolaryngologists" and as "physicians extremely knowledgeable of occupational hearing loss, with faculty appointments and experience in these types of cases."
Additionally, the commissioner considered other evidence that supported the medical doctors' opinions. For example, the commissioner noted that Weyerhaeuser
effectuated a hearing loss attenuation program which eliminated the risk of noise induced hearing loss subsequent to August 1987. During the time that claimant had an increase in his hearing loss he was using double hearing protection at the work site. Furthermore, the hearing loss continued to worsen after claimant left work for the employer which also demonstrates a non-work related etiology of hearing loss.
"A claimant must prove by a preponderance of the evidence that the injury is a proximate cause of the claimed disability." Grundmeyer, ___ N.W.2d at ___. Ordinarily, expert testimony is necessary to establish a causal connection between the injury and the disability for which benefits are sought. Id. Here, although the evidence from all three experts might have supported a different conclusion, we cannot say that the conclusion the commissioner reached was not supported by substantial evidence. See Grundmeyer, ___ N.W.2d at ___ ("An agency's action does not lack substantial evidence simply because a reasonable person could draw inconsistent conclusions from the same evidence."). The commissioner must consider expert testimony together with all other record evidence bearing on the causal connection between the injury and the disability. Id. As fact finder, the commissioner determines what weight is to be given to any expert's testimony on the issue of causation. Id. And the commissioner may accept or reject the expert testimony in whole or in part. Id.
We conclude substantial evidence supports the commissioner's finding that Meihost failed to prove by a preponderance of the evidence that he incurred a work-related and noise-induced hearing loss after August 1, 1987, the date of the purchase. We therefore affirm the commissioner's decision on this issue and remand for an order affirming the decision of the commissioner.
REVERSED AND REMANDED WITH DIRECTIONS.
All justices concur except Carter, J., who takes no part.
This opinion shall not be published.