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Lopez v. Vanbeek Herd Partnership

Supreme Court of Idaho

April 12, 2017

ENRIQUE LOPEZ, Claimant-Appellant,
v.
VANBEEK HERD PARTNERSHIP, Employer, and STATE INSURANCE FUND, Surety, Defendants-Respondents.

         2017 Opinion No. 32

         Appeal from the Idaho Industrial Commission.

         The order of the Industrial Commission is affirmed.

          Goicoechea Law Offices, Chtd., Boise, for appellant. Justin P. Aylsworth argued.

          Eberle Berlin Kading Turnbow & McKlveen, Chtd., Boise, for respondent. Neil D. McFeeley argued.

          BRODY, Justice

         Enrique Lopez appeals an order of the Idaho Industrial Commission ("Industrial Commission") declining to award him additional workman's compensation income benefits for binaural hearing loss he sustained as a result of a workplace accident. We affirm the order of the Industrial Commission.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On August 26, 2011, Enrique Lopez was injured by a bull while working on a dairy. His injuries included a closed head injury, mild left ear hearing loss, and profound right ear hearing loss. Lopez was treated at St. Benedict's Hospital Emergency Room and received follow-up care at Jerome Family Clinic. He was tested and treated for his work-related hearing loss by Peter Doble, M.D., an ear, nose, and throat specialist, and A. Joseph Seitz, Au.D., an audiologist.

         In February 2012, Dr. Seitz concluded that Lopez had "mild high frequency hearing loss in his left ear and profound hearing loss in his right ear" as a result of the workplace incident. He noted that there was "no speech reception threshold available for the right ear, " which essentially meant total hearing loss on that side. Dr. Seitz prescribed a power behind-the-ear hearing aid for the right ear to reduce the tinnitus Lopez was experiencing and to allow some hearing on that side. However, Lopez reported that the aid did not improve his right ear hearing and caused him headaches.

         In June 2013, Greg Schroeder, a hearing instrument specialist, and Christine W. Pickup, an audiologist, recommended that Lopez try the Phonak BiCROS hearing system to treat his hearing loss. The BiCROS system uses a microphone on the lesser-hearing or deaf ear to wirelessly relay a message to a device on the other ear, enabling the wearer to feel as if they are hearing from both sides. The BiCROS system also assists with low-grade hearing loss in the hearing ear. In her recommendation, Dr. Pickup opined that Lopez had 100% impairment in the right ear.

         In November 2013, Delray Maughan, M.D., reviewed Lopez's records at the request of the State Insurance Fund ("SIF") and agreed that Lopez would benefit from the BiCROS system. He rated Lopez's hearing loss as a "100% monaural impairment of his right ear and a 7.5% monaural impairment of his left ear." Using the combined values chart in the AMA Guides for Evaluation of Permanent Impairment (6th ed. 2008), Dr. Maughan concluded that Lopez sustained a 22.9% binaural impairment. The SIF used Dr. Maughan's rating to pay income benefits for disability based on Dr. Maughan's opinion.

         Lopez complained to the Industrial Commission that he was entitled to additional income benefits based on his interpretation of the statutory schedule for permanent impairments in Idaho Code section 72-428. The Industrial Commission disagreed, holding that Lopez was only entitled to the 8% impairment benefits previously paid. Lopez timely appealed.

         II.ISSUE PRESENTED ...


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