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Cheh v. EG&G Idaho

November 26, 2010

UNTE CHEH, CLAIMANT-APPELLANT,
v.
EG&G IDAHO, INC., DBA IDAHO NATIONAL ENGINEERING LABORATORY, EMPLOYER, AND WAUSAU UNDERWRITERS INSURANCE COMPANY, SURETY, DEFENDANT-RESPONDENTS.



Appeal from the Industrial Commission. Industrial Commission denial of Motion to Reconsider, affirmed.

The opinion of the court was delivered by: Burdick, Justice

2010 Opinion No. 123

Unte Cheh (Cheh) appeals from the Idaho Industrial Commission‟s ("the Commission") denial of his Motion for Reconsideration of his Motion to Stay Briefing Schedule, Reopen the Hearing, and Permit Discovery. The Commission previously found that Cheh failed to provide notice within the statutory time limit and that all other issues were rendered moot. The Commission denied Cheh‟s Motion for Reconsideration finding that he had failed to demonstrate a manifest injustice. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Cheh was employed by EG&G Idaho, Inc. ("EG&G") dba Idaho National Engineering Laboratory ("INEL") between November 1, 1976 and January 6, 1978. Cheh began experiencing symptoms characteristic of his claimed illness no later than December 1977. After leaving the INEL, Cheh continued to work in the nuclear power industry for the next 21 years.

In 1998 Cheh filed a federal workers‟ compensation action alleging that his many physical ailments resulted from exposure to radiation in the course of his employment with the Nuclear Regulatory Commission ("the NRC"). This claim was denied. Cheh retired from the NRC in January 2000 due to his medical problems.

On April 25, 2002, Dr. Sternglass, PhD, told Cheh that his symptoms were consistent with radiation exposure and suggested that Cheh see a specialist. On December 22, 2004, Dr. Alberto Martinez, MD, wrote a letter, inter alia, diagnosing Cheh with cataracts and noting that cataracts may result as a side effect of radiation exposure.

Cheh filed another federal workers‟ compensation action on March 31, 2005, alleging that he had contracted an occupational disease as a result of being exposed to radiation during the course of his employment at the NRC. On August 18, 2006, the U.S. Department of Labor ("the DoL") sent Cheh a letter with an attached decision denying his claim. That decision noted that Cheh‟s Notice of Occupational Disease had complained of a mysterious illness, beginning in 1986, with "symptoms of colorectal pain/bleeding, frequent urination, vomiting, reduced immune system, developing diabetes, dry mouth, loss of teeth, ptosis/cataract, memory lapse, depression and EKG abnormality/shortness of breath/chest pain." The DoL decision noted that a May 7, 2003, disability slip filled out by Dr. Ronald Kurstin, MD, indicated that Cheh was a radiation victim suffering from intestinal pain and rectal bleeding. The DoL decision includes quotations from a medical report written by Dr. Ernest Chiodo, MD, wherein Dr. Chiodo stated, "In my opinion you [Cheh] have suffered from adverse medical and psychiatric consequences due to your employment at United States Nuclear regulatory commission."

The DoL denied Cheh‟s claim for workers compensation, finding that the evidence in the record did not support his contentions. The DoL noted that Cheh had written a letter to Dr. Shuster, MD, of Johns Hopkins Hospital, in 1993, in which he stated that his bowel problems began immediately after an automobile accident in 1991.

In a letter dated February 17, 2006, Dr. Daniel Lahr, MD, wrote that "Mr. Cheh had removal of a right ankle lesion on 02/09/06 at Shady Grove Hospital. Given his history of full-body radiation exposure I believe that it is reasonable to assume that this lesion is secondary to that exposure."

On January 3, 2007, Cheh received a mass mailing from the USW Worker Health Protection Program, offering free medical screening to all past employees of INEL, and advising those employees about federal workers compensation that is available to workers who are injured as a result of radiation or toxic exposure. Cheh received a second medical opinion letter from Dr. Chiodo on January 22, 2007, stating, inter alia, "In my opinion you have suffered from adverse medical and psychiatric consequences due to your employment at United States Nuclear Regulatory Commission as well as at the Idaho National Engineering Laboratory (INEL)."

On May 11, 2008, Cheh filed a pro se claim against INEL, alleging that he incurred an occupational disease as a result of high dose radiation exposure at his job. INEL and its Surety denied Cheh‟s claim, finding that he had failed to make timely notice of his occupational disease under I.C. § 72-448.

On January 15, 2009, the Idaho Industrial Commission (Commission) met to determine the bifurcated issues of whether: (1) Cheh had met statutory notice and filing requirements under I.C. § 72-448; and (2) the result of Cheh‟s claims was dictated through res judicata, collateral estoppel or a similar principle.*fn1 Cheh represented himself at the January 15, 2009, hearing.

On April 14, 2009, attorney Starr Kelso appeared on Cheh‟s behalf to file a Motion*fn2 seeking a stay of briefing and reopening of the hearing to allow further discovery. On April 21, 2009, Cheh filed a pro se motion requesting an extension of briefing deadlines. On April 23, 2009, EG&G filed an objection to Cheh‟s April 14, 2009, Motion to Reopen. On April 23, 2009, Referee Donahue entered an order denying Cheh‟s April 14, 2009, motion and granting Cheh‟s April 21, 2009, motion in part, providing Cheh with an extra week to prepare his brief. This Order also instructed Cheh to clarify whether he was being represented by attorney Kelso, given that Cheh filed a pro se motion after Kelso had appeared as his attorney. On April 27, 2009, Kelso submitted an attorney status report, ...


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