54 Van Natta 24 (2002). JOHNNY E. MARBLE, Claimant.
Case Date | January 10, 2002 |
Court | Oregon |
Oregon Worker Compensation
2002.
54 Van Natta 24 (2002).
JOHNNY E. MARBLE, Claimant
24In
the Matter of the Compensation of JOHNNY E. MARBLE,
ClaimantWCB
Case No. 99-08754ORDER
ON REVIEWMartin L
Alvey, Claimant AttorneysDeryl K Nielsen PC, Defense AttorneysReviewing Panel: Members Biehl, Bock,
and Haynes.The insurer requests review of
those portions of Administrative Law Judge (ALJ) Davis' order that: (1) set
aside its denial of claimant's occupational disease claim for binaural hearing
loss; (2) awarded a $2,700 attorney fee under ORS
656.386(1) for claimant's counsel's services in obtaining a "pre-hearing"
rescission of the insurer's denial of compensability; and (3) awarded a $1,000
attorney fee under ORS 656.308(2)(d) for claimant's counsel's services at
hearing regarding the insurer's responsibility denial. On review, the issues
are responsibility and attorney fees.1 We affirm. FINDINGS OF FACT We adopt the ALJ's "Findings
of Fact." CONCLUSIONS OF LAW AND OPINION Claimant, 62 years old at time of hearing, worked for more
than 30 years as a union boilermaker and iron worker for various employers.
(Tr. 10). In November 1996, claimant took a hearing
test and was advised by the audiologist that he had hearing loss. (Ex. 1A). In
January 1999, claimant's hearing was tested again. The test again revealed
bilateral sensorineural hearing loss. (Ex. 2). On
May 14, 1999, claimant started working for the insured. Claimant's work was
noisy, involving the use of jack hammers and metal bars. Claimant worked for
the insured until June 2, 1999, when he retired. (Tr. 10). 1 Claimant moves to strike the insurer's
"appellate exhibit," consisting of portions of closing arguments to the ALJ
regarding the insurer's "apportionment defense." Because we would reach the
same ultimate conclusion regardless of whether we considered the insurer's
submission, we need not address the motion. 54
Van Natta 24 (2002)25On September 29, 1999,
claimant filed a claim for bilateral hearing loss, "progressive in onset." (Ex.
6). On November 3, 1999, the insurer denied both compensability and
responsibility for claimant's hearing loss condition. (Ex. 8). In January 2000, Dr. Hodgson examined claimant at the
request of the insurer. (Ex. 9). A third audiogram was administered at that
time, which again revealed bilateral hearing loss. (Ex. 9-6). Dr...
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