Opinion
No. 3-401 / 02-1479
Filed October 15, 2003
Appeal from the Iowa District Court forPolk County, Douglas F. Staskal, Judge.
William Vokes appeals from the district court's decision affirming the industrial commissioner's denial of Vokes's claim for occupational disease disability benefits. Solvay appeals from that portion of the district court's decision remanding the issue of its liability for Vokes's medical expenses to the commissioner. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Pamela J. Walker of Sherinian Walker, P.C., West Des Moines, for appellant.
Charles E. Cutler of Cutler Law Firm, P.C., West Des Moines, for appellees.
William D. Scherle of Hansen, McClintock Riley, Des Moines, for appellees/cross-appellants.
Heard by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
I. Background Facts Proceedings
William Vokes is currently employed as a stationary engineer for American Home Products. As a stationary engineer, Vokes works with pumps, pipes, and other plumbing and mechanical equipment. As a result, Vokes has had substantial exposure to asbestos.
Vokes has worked at the same plant since 1964. Prior to American Home's purchase of the plant on March 5, 1997, the plant was owned by Solvay Animal Health.
Vokes filed claims for benefits in 1997 and 1999 under the Iowa Occupational Disease Law, Iowa Code chapter 85A (1999), claiming he was disabled as the result of his exposure to asbestos.
A deputy workers' compensation commissioner determined Vokes was not disabled because he was not actually incapacitated from performing his work. The deputy found:
Although Vokes has a functional loss in terms of energy and endurance, he has no medical activity restrictions, and has not shown that he is "actually incapacitated" from earning equal wages in other suitable employment. In short, he has not reached the point of "disablement." It follows that he is not entitled (yet, anyway) to permanent partial disability benefits.
The deputy also found that Vokes failed to show he was last injuriously exposed to asbestos in the four months between the change of ownership in March 1997 and the date of his first disputed medical expenses, in July 1997. The deputy concluded Vokes was not entitled to compensation. The chief deputy workers' compensation commissioner adopted the deputy's decision as the final agency action in this case.
On judicial review, the district court affirmed the commissioner in all respects. The court, however, remanded to the commissioner to determine whether Vokes's last injurious exposure to asbestos occurred while he worked for Solvay. The court noted if that were the case, Solvay would be responsible for paying Vokes's medical expenses.
Vokes appeals, claiming he is disabled and the commissioner erred by concluding otherwise. In the alternative, he claims he is at least entitled to medical benefits. Solvay cross-appeals, claiming the district court erred by remanding to the commissioner for a determination of whether Vokes's last injurious exposure was at Solvay.
II. Standard of Review
Our review under chapter 17A (2001) is for the correction of errors at law, not de novo. Wal-Mart Stores, Inc. v. Caselman, 657 N.W.2d 493, 498 (Iowa 2003). Our review is guided by section 17A.19(10). The district court, as well as this court, is bound by the commissioner's factual findings if they are supported by substantial evidence. IBP, Inc. v. Harpole, 621 N.W.2d 410, 414 (Iowa 2001). We consider all of the evidence in the record. Dawson v. Iowa Bd. of Med. Exam'rs, 654 N.W.2d 514, 518 (Iowa 2002). Evidence is not insubstantial merely because it would have supported contrary inferences. Wal-Mart Stores, 657 N.W.2d at 499.
III. The Merits
An employee who has become "disabled from injurious exposure to an occupational disease" is entitled to compensation. Iowa Code § 85A.5 (1999). Disablement arises "where an employee becomes actually incapacitated from performing the employee's work or from earning equal wages in other suitable employment because of an occupational disease . . . ." Iowa Code § 85A.4. The statute also provides:
If, however, an employee incurs an occupational disease for which the employee would be entitled to receive compensation, if the employee were disabled as provided herein, but is able to continue in employment and requires medical treatment for said disease, then the employee shall receive reasonable medical services therefore.
Iowa Code § 85A.5. The employer in whose employment the employee was last injuriously exposed to the hazards of the disease, is liable for the compensation. Iowa Code § 85A.10.
A. Disablement
Vokes claims he is disabled within the meaning of section 85A.4. In Frit Industries v. Langenwalter, 443 N.W.2d 88, 91 (Iowa Ct.App. 1989), we stated, "[a]n employee need not work in an atmosphere until the most severe stage of an occupational disease is reached before he can seek relief under chapter 85A." Langenwalter was accordingly awarded workers' compensation benefits, even though he did not have any permanent physical disablement as a result of lead poisoning. Frit Indus., 443 N.W.2d at 91. Vokes accordingly argues he need not prove physical inability to work. It is sufficient, he claims, to show that he cannot perform all of his job duties and that his earning capacity has been diminished.
As noted above, "disablement" under section 85A.4 arises when an employee becomes actually incapacitated from performing the employee's work, or from earning equal wages in other suitable employment. Noble v. Lamoni Prods., 512 N.W.2d 290, 293 (Iowa 1994). Langenwalter was not employed and was unable to find new employment. Frit Indus., 443 N.W.2d at 91. He was accordingly considered disabled because he had suffered a "loss in earning capacity proximately caused by an occupational disease under chapter 85A." Id. (quoting Blacksmith v. All-American, Inc., 290 N.W.2d 348, 350 (Iowa 1980)). Contrary to Vokes's assertion, Frit Industries is not controlling, and he cannot be considered disabled without proof that he is incapacitated and suffered a reduction in earning capacity.
Our review of the record discloses substantial evidentiary support for earlier quoted findings of fact by the commissioner. Vokes continues to work without restrictions or reduction in earnings. The commissioner was also free to accept or reject Vokes's evidence that he was unemployable elsewhere for at least the same compensation. The commissioner, based on this record, correctly concluded Vokes failed to prove he "was unable to continue working for reasons related to his disease." See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980). We accordingly affirm the commissioner's decision denying Vokes disability benefits under section 85A.4.
McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 n. 6 (Iowa 1980), pointed out that if an employee is able to continue working, under section 85A.5, the employee is entitled to payment of only reasonable medical expenses.
B. Medical Benefits
Vokes alternatively contends he is entitled to medical benefits under section 85A.5. He asserts the commissioner improperly required him to establish a specific date for this last injurious exposure to asbestos as a prerequisite to recovering for medical benefits. On cross-appeal, Solvay claims the district court erred by remanding the case to the commissioner to determine whether Vokes's last injurious exposure to asbestos occurred while employed by Solvay.
The undisputed record indicates Vokes suffers from an occupational disease, but is nevertheless able to continue working without restriction. He requires medical treatment for his disease, and under section 85A.5 should be entitled to receive compensation for reasonable medical services. The remaining issue then is which employer should be responsible for payment. Under section 85A.10, "the employer in whose employment the employee was last injuriously exposed to the hazards of the disease, is liable for the compensation."
Our supreme court has stated:
Isolating and proving the particular period of employment that caused a claimant's occupational disease may be extremely difficult if the claimant was exposed to the same hazardous conditions while employed with various employers. The reason for this is that clinical manifestations of occupational diseases are typically caused by prolonged exposure to hazardous substances.
To overcome this problem of proving causation in the occupational disease context, chapter 85A identifies the employer who shall be held accountable. Section 85A.10 imposes liability upon the last employer in whose employment the claimant was injuriously exposed to the hazardous condition of employment. It does not require that the claimant prove that his disease was actually caused by that exposure. Rather, we believe it is sufficient that he show that the hazardous employment condition which at some time caused his disease existed to the extent necessary to possibly cause the disease at his last employer's place of employment.
McSpadden, 288 N.W.2d at 188 (citations omitted).
The commissioner and the district court interpreted section 85A.10 to mean the last injurious exposure before the date the employee first incurred medical expenses. Generally, we consider the last injurious exposure before the date of disability. Doerfer Div. of CCA v. Nicol, 359 N.W.2d 428, 433 (Iowa 1984); Croft v. John Morrell Co., 451 N.W.2d 501, 503 (Iowa Ct.App. 1989). Once the date of disability is determined, "the determination of which insurer is liable is accomplished by simply searching backwards to find the last time the claimant was exposed to the disease-causing substance, subject, of course to the jurisdiction's rules on the degree of exposure required." Doerfer Div., 359 N.W.2d at 433; see also 9Arthur Larson Lex K. Larson, Larson's Workers' Compensation Law § 153.02(6)(a) at 153-11 (2002). Put another way, the date of the last injurious exposure can never come after the date of the disability. CES Card Establishment Servs., Inc. v. Doub, 656 A.2d 332, 338 (Md. 1995).
In the present case, however, Vokes is not disabled. A similar situation was discussed in State Accident Insurance Fund Corp. v. Carey, 662 P.2d 781, 782 (Or. 1983), where the court held, "the most logical triggering event in the case of a non-disabling injury or disease is the date when medical treatment is first sought." The court noted that the date when an employee first seeks medical treatment "has some objective relationship to the date when the claimant's condition became a disability, because it is usually documented." State Accident Ins. Fund, 662 P.2d at 782. We determine the commissioner properly interpreted section 85A.10 to mean the last injurious exposure before the date the employee first incurred medical expenses as a result of the occupational disease.
While we agree with the commissioner's recitation of the last injurious exposure rule, we find the commissioner's application of the rule was not supported by substantial evidence. The commissioner found Vokes was exposed to loose, friable asbestos both before and after the sale of the plant in March 1997. The commissioner went on to conclude:
"Friable" means the asbestos is easily reduced to dust or powder, and therefore, may become airborne and a breathing hazard.
In the present case, it is clear that asbestos was present in the Labs at all times relevant-but Vokes was not "injuriously exposed" on a daily basis. Rather, he at times touched or stepped on loose, friable asbestos, which then became airborne and subject to respiration. Vokes testified credibly to a number of such incidents, but cannot supply the date of any one occurrence.
Whether any such "injurious exposures" occurred in the four months between the last change of ownership and the first disputed medical expenses is purely a matter of speculation. The evidence offered does not permit a finding one way or the other. For that reason, it must be concluded that Vokes has failed to meet his burden of proof on the issue.
After finding that Vokes was injuriously exposed to asbestos both before and after the change of ownership, the commissioner determined Vokes was not entitled to the payment of medical expenses because he was unable to supply a specific date when he was exposed.
While Vokes was unable to supply a specific month and date for the incidents when he was exposed to asbestos, he was able to give general time frames, such as summer of 1998. In regard to some incidents, he was able to relate who the supervisor was at that time, which would indicate whether American Home or Solvay was the owner. We determine that for purposes of determining Vokes's last injurious exposure, it should be sufficient if the commissioner is able to determine who was the owner at the time of the incident. Application of the last injurious exposure rule does not require Vokes to give a specific month and date.
We note that the primary purpose of the workers' compensation statute is to benefit the worker and his or her dependents, insofar as statutory requirements permit. McSpadden, 288 N.W.2d at 188. We interpret the workers' compensation law "as will best serve the interests of employees who suffer from an occupational disease, rather than attempt an adjustment of their rights in the light of equities that may exist between [successive employers]." Doerfer Div., 359 N.W.2d at 434 (quoting Wilson v. Van Buren County, 278 S.W.2d 685, 688 (Tenn. 1955)). An employee's claim should not be consigned to the sidelines while two employers stage a lengthy fight over apportionment or responsibility. Id.
We determine the case should be remanded as to both American Home and Solvay for a determination of Vokes's last injurious exposure prior to July 1997, when he first incurred medical expenses as a result of the occupational disease.