Hook V titan international

before the iowa WORKERS’ COMPENSATION commissioner

______________________________________________________________________

:

JAMES K. HOOK, :

:

Claimant, :

:

vs. :

: File No. 1232356

TITAN INTERNATIONAL, INC. :

: A R B I T R A T I O N

Employer, :

: D E C I S I O N

and :

:

IDEMNITY INSURANCE CO., :

:

Insurance Carrier, : HEAD NOTE NO. 1402

Defendants. :

______________________________________________________________________

STATEMENT OF THE CASE

This is a contested case proceeding in arbitration under Iowa Code chapters 85, 85B and 17A. Claimant, James Hook, claims to have developed tinnitus and an occupational hearing loss in the course of his employment by defendant Titan International, Inc., on May 1, 1998. He now accordingly seeks benefits under the Iowa Occupational Hearing Loss Act from Titan International and its insurance carrier, Indemnity Insurance Company.

The case was heard and fully submitted in Des Moines, Iowa, on April 16, 2002. The record consists of Hook’s testimony and joint exhibits A-H, with the exception of exhibit A, pages 5-10, which were excluded upon objection.

ISSUES

STIPULATIONS:

1. An employment relationship existed between James Hook and Titan                 International, Inc., on May 1, 1998.

2. Entitlement to temporary disability benefits is not in dispute.

3. The correct rate of weekly compensation is $360.14.

4. Entitlement to medical benefits is not in dispute.

ISSUES FOR RESOLUTION:

1. Whether Hook developed tinnitus or sustained occupational hearing loss                 arising out of and in the course of his employment with Titan International.

2. Extent of occupational hearing loss and/or tinnitus.

3. Whether the claim is barred under Iowa Code section 85.23 for failure to give                 timely notice.

FINDINGS OF FACT

James Hook, age 65, began employment in a tire manufacturing facility owned by Armstrong Tire in 1966. Corporate ownership of the plant subsequently came to an enterprise known as Pirelli-Armstrong. Hook began to notice hearing problems during the last several years the plant was owned by Pirelli-Armstrong. The plant was sold to Titan International on July 16, 1994. As a member of the United Rubber Workers union, Hook was out on strike when Titan assumed ownership of the plant, although work resumed a few months later. Hook remained employed until another labor dispute commenced on May 1, 1998. He has never returned to work and now considers himself retired.

Before actually starting work with Titan, Hook was given an audiogram on September 28, 1994. In the history part of the form, he estimated his hearing as “fair” and reported the presence of tinnitus: “a little (L) ear.” Recorded - but uninterpreted - audiometric findings were as follows:

Hz Left ear Right ear

500 20 25

1K 25 15

2K 45 25

3K 60 50

4K 60 50

6K 80 65

8K 80 20

(Exhibit A, p. 15).

After Hook went out on strike again in 1998, the next audiogram he took was on May 27, 1998. This reader’s interpretation of the charted findings is as follows:

Hz Left ear Right ear

250 15 15

500 15 10

1K 15 10

2K 45 25

3K 60 55

4K 45 50

6K 95 75

8K 90 50

(Exhibit A, p. 11).

Handwritten notes of the audiologist reflect complaints of left ear ringing and an interpretation of “mild to moderately severe sensoineural loss.” However, as defendants point out, Hook’s measured hearing actually improved at several frequencies during the time he was employed by Titan International.

Otolaryngologist Mark K. Zlab, M.D., evaluated hook in February 2002. Dr. Zlab found increased hearing loss since the 1998 audiogram and causally tied Hook’s hearing loss and tinnitus to his employment in the tire factory. He did not, however, attempt to distinguish Hook’s tenure with Titan in specific from his career in general.

CONCLUSIONS OF LAW

Hook’s claim involves two components: occupational hearing loss and tinnitus, commonly known as “ringing in the ears.” Occupational hearing loss, if established, is compensable under Iowa Code chapter 85B, while work-related tinnitus, if established, is compensated as an industrial disability, or loss of earning capacity under Ehteshamfar v. UTA Engineered Systems, 555 N.W.2d 450 (Iowa 1996).

Hook does suffer from hearing loss which, according to Dr. Zlab, is related to his many years of employment in a tire manufacturing facility. This does not, however, automatically translate to occupational hearing loss caused by Titan International between 1994 and 1998. Indeed, Hook’s measured hearing loss actually improved at some frequencies during his employment by Titan. Similarly, Hook suffered from tinnitus before Titan’s ownership and he does now. There is no evidence showing that his condition was in any way aggravated or worsened during the period of Titan’s responsibility.

Hook, however, contends that Titan should be liable on the theory that by purchasing the plant, it also purchased any preexisting occupational hearing loss of Armstrong-Pirelli’s workers. This position is untenable. There is no doubt that Hook was well aware of the change in ownership. He may well have had a viable claim against Armstrong-Pirelli at that time, but if so, he failed to timely pursue it. In a similar factual situation, this agency refused to impose liability on a subsequent employer in Meihost v. Weyerhaeuser Company, No. 1168621 (App. dec. 2000):

This is not a case where an employer merely changes its corporate name. A new employer-employee relationship occurred in 1987. Iowa Code section 85B.8 defines a date of injury for occupational disease as ‘termination of the employer-employee relationship’ between claimant and Mead was termination in 1987. Claimant then had the statute of limitations period in which to bring an action for any hearing loss he had incurred up to that point of time. Claimant had audiometric tests done and was on notice of a hearing loss that had occurred. In this case, claimant can only bring an action for hearing loss caused by his employment with Weyerhaeuser. Weyerhaeuser is not liable for prior hearing loss with another employer. This is not by operation of the contract between Weyerhaeuser and Mead, but by operation of law, specifically Iowa Code sections 85B.8 and 85B.11.

The same result is mandated here. Hook has failed to establish either occupational hearing loss or tinnitus causally related to his brief employment with Titan International. Defendants accordingly prevail.

ORDER

THEREFORE, IT IS ORDERED:

Hook takes nothing.

Costs, including the cost of the trial transcript, are taxed to Hook.

Signed and filed this ___26th_____ day of June, 2002.
________________________
DAVID RASEY
DEPUTY WORKERS’
COMPENSATION COMMISSIONER

Copies to:

Mr. Richard R. Schmidt

Attorney at Law

4001 Ingersoll Ave.

Des Moines, IA 50312

Mr. Ryan M. Clark

Mr. Jeffery Baker

Attorney at Law

505 Fifth Ave, Ste. 729

Des Moines, IA 50309