ENRIQUE LOPEZ, Claimant,
v.
VANBEEK HERD PARTNERSHIP, Employer,
and
STATE INSURANCE FUND, Surety, Defendants.
No. IC 2011-020952
Idaho Workers Compensation
Before the Industrial Commission of the state of Idaho
April 14, 2016
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
ORDER
R.D.
Maynard, Chairman
INTRODUCTION
Pursuant
to Idaho Code § 72-506, the Idaho Industrial Commission
assigned the above-entitled matter to Referee Alan Taylor.
Claimant, Enrique Lopez, was represented by Justin Aylsworth,
of Boise. Defendant Employer, Vanbeek Herd Partnership
(Vanbeek), and Defendant Surety, State Insurance Fund, were
represented by Neil McFeeley, of Boise. In lieu of a hearing,
the parties agreed to submit the matter on stipulated
exhibits. On October 21, 2015, Claimant filed his proposed
list of medical providers, exhibits, and issues. On October
27, 2015, Defendants filed their Notice of Joinder in
Claimant's proposed list of exhibits and requested
issues. The parties then submitted post-hearing briefs. The
matter came under advisement on December 23, 2015, and is now
ready for decision.
ISSUES
The
stipulated issues to be addressed are:11. The proper methodology for calculating
Claimant's hearing loss impairment; and
2. The
proper impairment rating.
CONTENTIONS
OF THE PARTIES
All
parties acknowledge that Claimant sustained an industrial
accident while working for Vanbeek on August 26, 2011.
Defendants accepted the claim and provided medical treatment.
Defendants have paid Claimant permanent partial impairment
benefits of 8% of the whole person for his hearing loss from
his industrial accident. Claimant now requests additional
permanent partial impairment benefits for his hearing loss.
Defendants deny further impairment benefits.
EVIDENCE
CONSIDERED
The
record in this matter consists of the following:
1. The
Industrial Commission legal file;
2.
Exhibits A through I (Bates Nos. 1-43), as stipulated by the
parties.
The
undersigned Commissioners have chosen not to adopt the
Referee's recommendation and hereby issue their own
findings of fact, conclusions of law and order.
FINDINGS
OF FACT
1.
Claimant was born July 13, 1979. On August 26, 2011, he was
employed by Vanbeek as a dairy worker.
2. On
August 26, 2011, Claimant's coworkers found him
unconscious in a pen on Vanbeek's premises. Claimant
regained consciousness while being transported to St.
Benedicts Family Medical Center in Jerome for treatment.
Claimant recalled a bull coming at him, but could not
remember being hit or knocked down. He reported head, low
back, and left knee pain, and buzzing in his right ear. After
evaluation, he was found to have multiple contusions and
abrasions, left knee meniscal tear, low back contusion,
closed head injury, mild left ear hearing loss, and profound
right ear hearing loss. Defendants accepted the claim and
provided medical treatment for Claimant's injuries.
3.
Joseph Seitz, AuD., tested and treated Claimant for his
hearing loss. On February 13, 2012, Dr. Seitz wrote that
Claimant suffered mild high frequency hearing loss in his
left ear and profound hearing loss in his right ear. On March
30, 2012, Dr. Seitz rated Claimant's hearing loss at
"18% of total hearing impairment." Exhibit E, p.
30. Dr. Seitz recommended a behind the right ear hearing aid
which Defendants authorized; however, it resulted in no right
ear hearing improvement.
4. On
May 4, 2012, Tyler McKee, M.D., performed arthroscopic left
knee medial meniscectomy. On November 8, 2012, Dr. McKee
rated Claimant's left knee impairment due to his
industrial injury at 2% of the left lower extremity.
5. On
June 10, 2013, Christine Pickup, AuD., reported that testing
revealed Claimant had no speech audiometry responses in his
right ear—confirming that he had no usable right ear
hearing—and mild high-frequency hearing loss in his
left ear. Dr. Pickup recommended a bilateral contralateral
microphone positioned behind Claimant's right ear with
wireless relaying of sound to a hearing aid positioned behind
Claimant's left ear, known as a BICROS system. Dr. Pickup
opined that Claimant suffered a 100% hearing impairment for
monaural hearing loss (right) pursuant to the AMA Guides
to the Evaluation of Permanent Impairment, Sixth Edition
(Guides).
6. On
November 17, 2013, Delray Maughan, M.D., reviewed
Claimant's records and concurred in the BICROS system
recommended by Dr. Pickup. Dr. Maughan opined that Claimant
sustained a 100% monaural impairment of his right ear and
7.5% monaural impairment of his left ear, together
constituting a 22.9% binaural impairment which Dr. Maughan
rated at
8%
whole person permanent partial impairment. Dr. Maughan noted
Claimant sustained his right ear total hearing loss secondary
to his closed head injury on August 26, 2011.
7.
Defendants provided Claimant a BICROS system that
significantly improved his hearing. No physician has
restricted Claimant's work activities due to his hearing
loss.
8.
Defendants have paid Claimant 8% whole person permanent
partial impairment for his bilateral hearing loss.
DISCUSSION
AND FURTHER FINDINGS
9. The
provisions of the Idaho Workers' Compensation Law are to
be liberally construed in favor of the employee. Haldiman
v. American Fine Foods, 117 Idaho 955, 956, 793 P.2d
187, 188 (1990). The humane purposes which it serves leave no
room for narrow, technical construction. Ogden v.
Thompson, 128 Idaho 87, 88, 910 P.2d 759, 760 (1996).
Facts, however, need not be construed liberally in favor of
the worker when evidence is conflicting. Aldrich v.
Lamb-Weston, Inc., 122 Idaho 361, 363, 834 P.2d 878, 880
(1992).
10.
Causation and impairment. A claimant must provide medical
testimony that supports his claim for compensation to a
reasonable degree of medical probability, Langley v.
State, Industrial Special Indemnity Fund, 126 Idaho 781,
785, 890 P.2d 732, 736 (1995), and "probable" is
defined as "having more evidence for than against."
Fisher v. Bunker Hill Company, 96 Idaho 341, 344,
528 P.2d 903, 906 (1974).
11. In
the present case, Defendants assert Claimant has not proven
that his mild left ear hearing loss is related to his
industrial accident. Claimant responds that the issue of
causation was not noticed for decision, was not agreed to by
the parties, and was not included in Claimant's Proposed
List of Medical Providers, Exhibits, Issue(s) to be
Determined, to which
Defendants assented in their Notice of Joinder, and thus is
not before the Commission.2 In his recommendation, Referee Taylor did
not resolve whether Claimant was unfairly surprised with the
issue of causation, instead finding that the record
established causation. Although as developed infra,
the Commission agrees that Claimant has proven causation, the
Commission finds it appropriate to address Claimant's
arguments on surprise and unfairness. Idaho Supreme Court
precedent instructs that causation is at issue any time
benefits are sought, because without the demonstration of a
causal relationship, there is simply no entitlement to
benefits. Gomez v. Dura Mark, Inc., 152 Idaho 597,
272 P.3d 569 (2012). Therefore, the issue of causation does
not need to be expressly delineated in the notice of hearing
where workers' compensation benefits are sought.
Id. Here, Claimant argues that at a pre-hearing
telephone conference, the parties stipulated that causation
was not contested. The Referee's pre-hearing telephone
conference was informal and no transcript or recording
exists. Moreover, Referee Taylor reports that he cannot
recall whether Defendants conceded...
