LOUIS MONNIER III, Claimant,
v.
MANPOWER, Employer,
and
NEW HAMPSHIRE INSURANCE COMPANY, Surety, Defendants.
No. IC 2017-004561
Idaho Workers Compensation
Before the Industrial Commission of the State of Idaho
February 10, 2020
FINDINGS
OF FACT, CONCLUSIONS OF LAW, AND ORDER
Thomas
P. Baskin, Chairman.
INTRODUCTION
Pursuant
to Idaho Code § 72-506, the Industrial Commission
assigned this matter to Referee Douglas A. Donohue. He
conducted a hearing in Boise on February 8, 2019. Claimant
appeared pro se. Eric Bailey represented Employer
and Surety. The parties presented oral and documentary
evidence. The parties took a post-hearing deposition.
Claimant, in writing, elected not to file an opening brief.
Defendants submitted a brief. Claimant filed a reply brief.
The case came under advisement on August 26, 2019, and is
ready for decision.
The
undersigned Commissioners have chosen not to adopt the
Referee’s recommendation and hereby issues their own
findings of fact, conclusions of law, and order.
ISSUES
The
issues to be decided according to the Notice of Hearing are:
1. Whether Claimant incurred an occupational disease per
Idaho Code § 72-437 and § 72-102 (18 and 22);
2. Whether Claimant has complied with notice and limitation
requirements of Idaho Code § 72-448;
3. Whether Claimant suffers from a compensable occupational
disease;
4. Whether and to what extent Claimant is entitled to:
a) Temporary disability,
b) Permanent partial impairment,
c) Permanent disability in excess of impairment,
d) Retraining,
e) Medical care, and
f) Attorney fees; and
5. Whether apportionment is appropriate under Idaho Code
§ 72-406.
CONTENTIONS
OF THE PARTIES
Claimant
contends his hearing loss, tinnitus, and ear pain constitute
a compensable occupational disease. When Employer assigned
Claimant to Micron from April 2016 through December 2016.
Claimant contends that machine noise to which he was exposed,
and lack of hearing protection, caused the injuries. At
hearing, Claimant acknowledged neither TTD nor retraining
benefits were being claimed, but he seeks PPI for hearing
loss. However, retraining benefits were re-asserted in
Claimant’s post-hearing reply briefing. Additionally,
Claimant seeks medical care or compensation to cover the cost
of Bluetooth hearing aids. Further, Claimant argues Dr.
Friedman’s opinions are motivated by bias.
Employer
and Surety contend Claimant failed to show an injury or
occupational disease. Additionally, Claimant failed to link
hearing loss to the Micron work environment. Instead,
Claimant’s hearing loss is consistent with hearing loss
typical for his age. Nevertheless, medical benefits including
doctor visits, an audiology test, a medical evaluation,
prescriptions, and an overpayment of $1,617.00 were paid to
or on behalf of Claimant. Further, Claimant failed to prove a
probable impairment or disability rating, and TTD benefits
are not payable since no work time was lost. Claimant also
failed to establish retraining eligibility and, without an
attorney, attorney fees.
EVIDENCE
CONSIDERED
The
record in the instant case included the following:
1. Oral testimony at hearing of Claimant;
2. Claimant’s exhibits A through S;
3. Defendants’ exhibits 1 through 10; and
4. Post-hearing deposition of Robert Friedman, M.D.
FINDINGS
OF FACT
1.
While working for Employer, Claimant was assigned to Micron
as a machine operator from April through December of 2016.
(Hr’g Tr. 6:7-11). During each 12-hour shift, up to
four (4) employees moved trays filled with computer chips
through various processing stages.
1 Id. at 11:3-22. The
machines sounded alarms every 35-40 minutes to signal stage
completion, and indicate the trays needed moving.
Id.; Id. at 28:1-5.
2 Claimant testified each
process sounded different, and estimated the sound at 90
– 100 decibels because the alarms were louder than a
conversational voice but quieter than a fire alarm.
Id. at 28:5-25.
3
2. No
employees on Claimant’s shift wore hearing protection.
Id. at 27:1-12.
3.
Starting in October, Claimant noticed a “buzzing sound
in [his] head” followed by headaches at home after the
12-hour shifts. Id. at 12:11-19.
4. On
December 9, 2016, Claimant sought treatment with primary care
physician, David Ballance, M.D. at Family Health Care for
persistent ringing in the ears, and hearing loss symptoms.
(Defs’ Ex. 5, p. 59). Dr. Ballance is Claimant’s
primary physician and has been for approximately four years.
(Hr’g Tr. 16:1-3). During the visit, Dr. Ballance
prescribed Claimant hearing protection and recommended an
audiology exam. (Cl’s Ex. E; Defs’ Ex. 5, p. 60).
5. The
next day, December 10, 2016, Claimant sent Employer an e-mail
reporting the exam, needed hearing protection, and suggested
audiology testing. (Cl’s Ex. R; Defs’ Ex. 5, p.
65; Hr’g Tr. 6:18-21). Upon the report, Employer
immediately supplied hearing protection, and found Claimant a
new assignment by the end of December. (Hr’g Tr.
6:11-23).
6.
Claimant’s symptoms continued after leaving Micron.
(Cl’s Ex. D; Defs’ Ex. 2, p. 6). On March 20,
2017, Claimant visited Cindy Olsen, AuD, CCC-A at Audiology
and Hearing Aid Center for the referred audiology evaluation.
Id. On exam, Dr. Olsen observed and removed earwax
impactions.
4 Id. After removal, Dr.
Olsen’s visual exam revealed Claimant’s bilateral
ear canals and tympanic membranes appeared normal.
Id. With further examination, Dr. Olsen reported
“excellent middle ear mobility and normal middle ear
pressure bilaterally,” and that “ipsilateral and...
