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IN THE COURT OF APPEALS OF IOWA No. 1-869 / 11-0655 Filed December 21, 2011

SQUARE D COMPANY, Self-Insured, Petitioner-Appellant, vs. GREGORY H. PLAGMANN, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.

Square D Company appeals from the district court's ruling on judicial review affirming the award of workers' compensation benefits to Gregory Plagmann. AFFIRMED.

Sarah W. Anderson and John M. Bickel of Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for appellant. Robert Rush of Rush & Nicholson, P.L.C., Cedar Rapids, for appellee.

Heard by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.

2 POTTERFIELD, J. I. Background Facts and Proceedings Gregory Plagmann began working for Square D Company on August 18, 1969, when he was eighteen years old. He worked for Square D until he retired on December 31, 2005. Square D manufactures electrical equipment

components, and parts of the facility involve high-noise levels. During the course of his employment, Plagmann often worked overtime. His primary job duties included work in the facility's boiler room, in the molding department, in the punch press area, and as a millwright throughout the plant. Additionally, at times his job required him to make rounds through areas of the plant that were particularly noisy. Most areas where Plagmann worked had highnoise levels resulting from alarms and machinery, including metal against metal contact, air blasts, and running motors. Plagmann testified that he was always conscientious about wearing ear plugs at work. Though Square D did not start a hearing conservation program until after Plagmann had worked there for years, he testified he wore ear plugs or an ear muff without being told to do so if he was going to spend any time at all in a high-noise area. On April 1, 2008, Plagmann filed a petition for workers' compensation benefits for tinnitus he asserted arose out of his employment with Square D. The petition listed the injury date as December 31, 2005. Plagmann stated he first experienced a ringing in his ears in approximately 2004. Plagmann had not

previously reported his tinnitus to Square D, nor did he mention it at an audiometric evaluation conducted in May 2007. Plagmann also did not check

3 "ringing in ears" as a symptom that applied to him on hearing questionnaires he answered in 2004 and 2005. Plagmann further reported the condition had

"gotten much worse" after his retirement. Two experts were retained to assess Plagmann's tinnitus. Plagmann

retained Doctor Richard Tyler, who reviewed documents, conducted a phone interview of Plagmann, and issued a report dated February 7, 2008. Dr. Tyler considered Plagmann's noise exposure at work, noting that Plagmann "believes some measurements were made over 120 [decibels]." Dr. Tyler also noted that some chemicals have the potential to exacerbate noise-induced hearing loss and considered that Plagmann had been exposed to chemicals during his work, "including chemicals used in plating." Dr. Tyler noted, incorrectly, that Plagmann did not begin using hearing protection until 1983, about fourteen years after he began to work at Square D. Dr. Tyler opined that for years Plagmann may have been using the protection incorrectly and had needed to remove the protection at times to allow him to communicate with others. Dr. Tyler further noted that

Plagmann frequently worked overtime and that it was "probable the guidelines for limiting noise-induced hearing loss are grossly inadequate for exposures of more than 40 hours in one week." Finally, Dr. Tyler stated that Plagmann had reported no other sickness or health condition that resulted in tinnitus. Based on this information, Dr. Tyler concluded the "tinnitus experienced by Mr. Plagmann was probably a result of his work at Square D." Dr. Tyler determined Plagmann's tinnitus resulted in a 4.5% whole body impairment. Square D retained Dr. Douglas Hoisington to assess Plagmann's tinnitus. Dr. Hoisington reviewed Plagmann's medical records, his audiological history,

4 and dosimetry data done in the departments where Plagmann worked. He

issued a report dated October 10, 2008. In this report, Dr. Hoisington discussed the decibel levels reported in different areas of the facility, as well as whether hearing protection was mandated in such areas. Dr. Hoisington noted that once exposure to noise is discontinued, there are no ongoing or latent effects that appear later. Dr. Hoisington reported there was no evidence Plagmann had been exposed to any chemicals and further noted there were no chemicals known to cause hearing loss. Dr. Hoisington reviewed Plagmann's medical

issues, including hypertension and hypercholesterolemia, which he noted could cause hearing loss. Further, he noted that Plagmann had a birth defect affecting his kidneys, which he believed could indicate Plagmann also had an abnormality of the cochlea, which develops at the same time as the kidneys embryologically. Ultimately, Dr. Hoisington concluded that although Plagmann undoubtedly had hearing loss, there was "significant doubt with any reasonable degree of medical certainty that during his employment at Square D his hearing loss or tinnitus is related to work exposure noise." At the hearing before the deputy workers' compensation commissioner , Square D offered a second report authored by Dr. Hoisington in response to his review of additional information relied upon by Dr. Tyler. Plagmann objected to the admission of this report on the grounds that it was untimely. Square D

responded the report was timely because it addressed medical information from Dr. Tyler that Square D had not received until shortly before the hearing. After the deputy sustained Plagmann's objection, Square D submitted this exhibit as an offer of proof.

5 A review of the exhibit reveals Dr. Hoisington criticized the "very suggestive" nature of the questions on a questionnaire Dr. Tyler had asked Plagmann to complete. Dr. Hoisington also discussed for the first time in this report his finding that three of Plagmann's medications listed tinnitus as a possible side effect. Though Dr. Hoisington had previously reported that

Plagmann's hypertension and hypercholesterolemia could contribute to a hearing loss, he had not previously linked Plagmann's medication with his tinnitus. Otherwise, the report did not introduce any new evidence. On June 3, 2009, the deputy workers' compensation commissioner issued his arbitration decision. The deputy found Dr. Tyler's opinion did not satisfy

Plagmann's burden of proof, due in part to Dr. Tyler's erroneous factual assumption that Plagmann had worked for fourteen years without hearing protection. Further, the deputy noted that Dr. Tyler offered no explanation for the dramatic worsening of Plagmann's condition after he retired, whereas Dr. Hoisington offered a plausible alternative theory of causation. Based on

these findings, the deputy determined Plagmann's tinnitus did not arise out of and in the course of his employment at Square D. Plagmann appealed to the Iowa workers' compensation commissioner. A deputy workers' compensation commissioner acting on behalf of the Iowa workers' compensation commissioner reversed the arbitration decision. The

commissioner's decision stated a "comparison of credentials" was important in this case and found Dr. Hoisington's credentials "pale[d] in comparison to credentials and publications" of Dr. Tyler. The commissioner's decision relied heavily upon Dr. Tyler's statements that many factors negatively impact the

6 effectiveness of hearing protection, even when it is worn. The decision

acknowledged problems with Dr. Tyler's report, including that Dr. Tyler had erroneously believed Plagmann had not worn hearing protection for fourteen years and that Dr. Tyler did not explain why Plagmann's tinnitus would worsen after leaving the high-noise environment. However, the commissioner concluded that Plagmann's consistent use of hearing protection during his employment would not affect Dr. Tyler's "views as to the lack of effectiveness of the protection." The decision further noted that although Dr. Tyler failed to explain the worsening of Plagmann's tinnitus, "[f]rom a common sense approach, it would appear that aging would always worsen hearing or tinnitus problems, but that does not mean that a significant part of the tinnitus is not work related." The commissioner ruled Plagmann had suffered a ten percent loss in earning capacity as a result of his tinnitus and ordered Square D to pay Plagmann fifty weeks of permanent partial disability at a rate stipulated to by the parties. Square D filed a petition for judicial review. Although the district court was critical of the commissioner's appeal decision, particularly its "common sense approach," the court concluded the decision, "when viewed as a whole, is supported by substantial evidence in the record." Square D now appeals, asserting the agency erred in: (1) concluding Plagmann's tinnitus arose out of his employment with Square D, given that Dr. Tyler's opinion was based on incorrect assumptions; (2) assigning a ten percent industrial disability rating when Plagmann voluntarily retired; and (3) excluding Dr. Hoisington's additional report as untimely.

7 II. Standard of Review Iowa Code section 17A.19(10) [2009] governs judicial review of agency decision making. We will apply the standards of section 17A.19(10) to determine whether we reach the same results as the district court. Id. The district court may grant relief if the agency action has prejudiced the substantial rights of the petitioner, and the agency action meets one of the enumerated criteria contained in section 17A.19(10)(a) through (n). Evercom Sys., Inc. v. Iowa Util. Bd., ___ N.W.2d ___, ___ (Iowa 2011) (internal quotation marks and citations omitted). Square D asserts the agency action meets several of the criteria listed in section 17A.19(10). III. Factual Finding and Application of Law to Fact--Finding Tinnitus Arose out of the Course of Employment Square D first asserts the agency's factual findings are not supported by substantial evidence. This court shall reverse or grant other appropriate relief from agency action if substantial rights of the person seeking judicial relief have been prejudiced because the agency action is "[b]ase d upon a determination of fact clearly vested by a provision of law in the discretion of the agency that is not supported by substantial evidence in the record before the court when that record is viewed as a whole." See Iowa Code

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