Valencia v. Labor Commission

2015 UT App 50
_________________________________________________________

THE UTAH COURT OF APPEALS

FLORENCIA VALENCIA,
Petitioner,
v.
LABOR COMMISSION, GRAPHIC PACKAGING, AND LIBERTY
INSURANCE CORPORATION,
Respondents.

Opinion
No. 20130976-CA
Filed February 26, 2015

Original Proceeding in this Court

Loren M. Lambert, Attorney for Petitioner

Jaceson R. Maughan, Attorney for Respondent
Labor Commission

Lori L. Hansen and Cody G. Kesler, Attorneys for
Respondents Graphic Packaging and Liberty
Insurance Corporation

JUDGE KATE A. TOOMEY authored this Opinion, in which
JUDGES J. FREDERIC VOROS JR. and STEPHEN L. ROTH concurred.

TOOMEY, Judge:

¶1 Florencia Valencia challenges a Utah Labor Commission
(Commission) decision denying disability benefits for hearing
loss she claims to have sustained while working for Graphic
Packaging (Employer). We decline to disturb the Commission’s
decision.
Valencia v. Labor Commission

BACKGROUND

¶2 Employer is a manufacturer of paperboard, recycled
board, and folding carton packaging. According to her job
description, Valencia inspected finished items as they came off
the machines requiring her to work in a noisy environment. A
number of professional workplace sound tests were conducted
between 1988 and 2009, which showed sound emanating from
the equipment and machines that ranged from 87 to 101 decibels.
Valencia consistently wore hearing protection while she worked,
which reduced the noise reaching her ears by at least 27 decibels.

¶3 Valencia did not have hearing problems when she began
working for Employer in 1997, but in 2009 she had a lesion
removed from her left ear and subsequent hearing tests showed
she had hearing loss in both ears. Eventually, Valencia was
diagnosed with ‚chronic tinnitus of the left ear‛ by Dr. Brian
Peterson, who also opined that the noise levels at Valencia’s
workplace could have contributed to her condition. Another
doctor, Dr. Carla H. Olsen, found no causal connection between
the noise levels and the hearing loss.

¶4 Valencia filed an Application for Hearing on May 29,
2012, in which she requested workers’ compensation benefits in
the form of recommended medical care and permanent partial
disability compensation for her hearing loss and chronic
tinnitus.1 In its answer, Employer claimed that Valencia could
not demonstrate that her employment legally or medically
caused her hearing loss.

¶5 In a pre-hearing memorandum, Valencia argued that
Employer’s professional sound surveys were unreliable because

1. She also requested travel expenses but eventually withdrew
this claim.

20130976-CA 2 2015 UT App 50
Valencia v. Labor Commission

many of the machines were idle when the surveys were
conducted. Accordingly, she asked the Administrative Law
Judge (ALJ) to order independent sound tests to be conducted
when all machines were running normally. The ALJ denied this
request because not only was it ‚undisputed that a
professionally controlled sound test has [already] been
conducted,‛ but also ‚the machinery in which *Valencia+ was
stationed during her employment with [Employer] no longer
exists at the plant.‛ The ALJ concluded that ‚the professionally
controlled sound tests that have been produced are the most
probative.‛

¶6 After a hearing on Valencia’s Application, the ALJ denied
her request for benefits on the ground that she failed to establish
legal causation for her hearing loss. Specifically, the ALJ
concluded that, although the workplace machinery emitted
‚‘harmful noise,’‛ Valencia’s ‚consistent use of hearing
protection ensured that she . . . was not exposed to harmful noise
at *Employer’s workplace+ and she cannot show that her hearing
loss was legally caused by her employment. Consequently, [her]
claim cannot be deemed compensable.‛2

¶7 Valencia asked the Commission to review the ALJ’s
decision denying her benefits. The Commission affirmed,
reasoning that ‚the concept of exposure, as it relates to hearing
loss in [Utah Code section 34A-2-503], requires consideration of
the noise Ms. Valencia actually heard during her employment.
Whether Ms. Valencia wore hearing protection, then, is an
implicit factor in determining what noise she had to hear.‛
Valencia now seeks our review of the Commission’s decision.

2. Having determined Valencia did not establish legal causation,
the ALJ and the Commission did not address medical causation.

20130976-CA 3 2015 UT App 50
Valencia v. Labor Commission

ISSUES AND STANDARDS OF REVIEW

¶8 Valencia argues that the Commission and the ALJ
misinterpreted Utah Code section 34A-2-503 by treating hearing
protection as a relevant factor in determining whether she was
exposed to harmful industrial noise, as defined in section 34A-2-
501. ‚We review statutory interpretations by agencies for
correctness, giving no deference to the agency’s
interpretation . . . .‛ Harrington v. Industrial Comm’n, 942 P.2d
961, 963 (Utah Ct. App. 1997) (citation and internal quotation
marks omitted); see also Hughes Gen. Contractors, Inc. v. Labor
Comm’n, 2014 UT 3, ¶ 25, 322 P.3d 712.

ANALYSIS

¶9 Valencia argues that the Commission and the ALJ
misinterpreted Utah Code section 34A-2-503 by treating hearing
protection as a relevant factor in determining whether she had
been ‚exposed‛ to ‚harmful industrial noise, as defined in
Section 34A-2-501.‛ According to Valencia, such an
interpretation ‚violates the plain language of the statute‛ and
adds language the legislature did not intend. Instead, she
contends, the statutory prerequisite is shown merely by
demonstrating that ‚her person‛ was ‚exposed to noise
levels . . . defined [by the statute+ as ‘harmful industrial noise.’‛
Under Valencia’s interpretation, the effectiveness of her hearing
protection would be relevant only during the analysis of medical
causation: whether her exposure to the noise in fact caused her
hearing loss. Employer responds that the concept of ‚exposure‛
necessarily includes taking into account hearing protection.

¶10 ‚When interpreting a statute, our goal is to give effect to
the legislature’s intent and purpose.‛ Francis v. State, 2013 UT 65,
¶ 41, 321 P.3d 1089 (citation and internal quotation marks
omitted). ‚To determine that intent, we look to the plain
language of the statute, reading it as a whole and interpreting its

20130976-CA 4 2015 UT App 50
Valencia v. Labor Commission

provisions to ensure harmony with other provisions in the same
chapter and related chapters.‛ R.P. v. K.S.W., 2014 UT App 38,
¶ 15, 320 P.3d 1084. We presume the legislature used each term
in the statute advisedly and according to its ordinary meaning.
State v. Maestas, 2002 UT 123, ¶ 52, 63 P.3d 621. Additionally, our
supreme court has noted that discerning the ordinary meaning
of a term may start with the dictionary since it catalogues ‚a
range of possible meanings that a statutory term may bear.‛ Hi-
Country Prop. Rights Group v. Emmer, 2013 UT 33, ¶ 19, 304 P.3d
851.

¶11 Utah Code section 34A-2-503(1) provides, ‚Permanent
hearing loss caused by exposure to harmful industrial noise . . .
shall be compensated according to the terms and conditions of
this chapter or Chapter 3, Utah Occupational Disease Act.‛
Elsewhere, the statute defines ‚harmful industrial noise‛ as ‚the
sound emanating from equipment and machines during
employment exceeding‛ specified decibels over identified
durations from fifteen minutes to eight hours. Utah Code
Ann. § 34A-2-501(1)(b) (LexisNexis 2011). The statute also
provides how a claimant must demonstrate that the sound
emanating from the machines exceeded prescribed limits: ‚by a
professionally controlled sound test.‛ Id. § 34A-2-503(2).

¶12 The word ‚emanate‛ means ‚to come out from a source,‛
Webster’s Third New Int’l Dictionary 738 (1993), and its use in the
context of this statute refers to the level of the noise as measured
at the machines. Therefore, noise is harmful if it comes out of the
machine above certain decibel levels beyond specified periods.

¶13 Because the statute defines harmful industrial noise but
not ‚exposure,‛ our focus is upon what it means to be exposed
to that noise. To ‚expose‛ means: ‚to lay open (as to . . .
danger . . .)‛; ‚make accessible to something that may prove
detrimental‛; and ‚deprive of shelter, protection, or care.‛
Webster’s Third New Int’l Dictionary 802 (1993). Using the plain
meaning of the word within the context of the phrase ‚exposure

20130976-CA 5 2015 UT App 50
Valencia v. Labor Commission

to harmful industrial noise,‛ ‚exposure‛ means being placed at
risk from the harmful sound.

¶14 This interpretation finds support in State v. Gallegos, a
child endangerment case in which the Utah Supreme Court
explained that the Black’s Law Dictionary definition of ‚expose‛
‚suggests that there must be a showing of a real, physical risk of
harm, not simply exposure to the image of a controlled
substance, chemical substance, or drug paraphernalia.‛ 2007 UT
81, ¶ 13, 171 P.3d 426. The court construed the word ‚exposed‛
in the context of the child endangerment statute:

[T]here must be an actual risk of harm to a child in
order for conduct to constitute ‚exposure‛ under
the statute. Because an actual risk of harm is
required, exposure must go beyond mere visual or
auditory exposure . . . . The child must have a
reasonable capacity to access the substance in order
for a real risk of harm to exist.

Id. ¶¶ 14–15.

¶15 Based on the concept of placing someone at risk,
determining whether the harmful industrial sound exposes a
worker to risk must take into account anything that would
interfere with the sound reaching the worker’s ear. So, for
example, if the sound emanating from the machines constitutes
harmful industrial noise as defined by the statute, but the
worker is not near the machines and instead is separated from
them by distance and a wall, the decibels reaching the worker’s
ears might fall below what is defined as harmful. Under this
scenario, the worker is not exposed to the harmful industrial
noise.

¶16 We conclude that the ALJ and the Commission correctly
reasoned that hearing protection must be considered when
determining whether an employee has been exposed to harmful

20130976-CA 6 2015 UT App 50
Valencia v. Labor Commission

industrial noise. Hearing protection diminishes the sound
reaching the human ear, and because of this, the harmful noise is
reduced. Accordingly, consideration of Valencia’s use of hearing
protection is relevant and necessary to determining whether she
was exposed to harmful industrial noise.

¶17 The question, then, is whether Valencia met the statutory
prerequisite of showing she was exposed to harmful industrial
noise. The professional sound tests established the emanation of
harmful industrial noise from the machinery.3 But by
consistently using ear protection, Valencia reduced the gross
decibel levels in the environment to a net level reaching her ear
below what the statute specifies as harmful. She, therefore, has
not established the statutory requirement for showing that she
was exposed to the harmful industrial noise. Accordingly, her
claim was properly denied.

3. Valencia also argues that additional sound testing was
required because the prior tests were unreliable. Nevertheless,
Valencia failed to challenge the ALJ’s decision not to order
additional sound tests to the Commission. In moving for review,
Valencia had ‚the obligation to raise all the issues that could
have been presented at that time, and those issues not raised
were waived.‛ See Pease v. Industrial Comm’n, 694 P.2d 613, 616
(Utah 1984). Had she raised the issue, the Commission could
have adjudicated whether the ALJ abused its discretion in not
ordering additional tests. See id. Thus, Valencia has waived this
issue. See Ashcroft v. Industrial Comm’n, 855 P.2d 267, 268–69
(Utah Ct. App. 1993) (holding that a challenge to the sufficiency
of evidence was waived when the petitioner failed to raise it on
review to the Commission).

20130976-CA 7 2015 UT App 50
Valencia v. Labor Commission

CONCLUSION

¶18 In sum, a person’s exposure to harmful industrial noise
necessarily takes into account the use of hearing protection. In
this case, although harmful industrial noise emanated from the
machinery, Valencia’s hearing protection reduced her exposure
to a noise level below that which the statute defines as harmful.
Consequently, Valencia has not met the statutory prerequisite
for establishing her claim, and therefore we decline to disturb
the Commission’s decision.

20130976-CA 8 2015 UT App 50