Opinion No. 32
from the Idaho Industrial Commission.
order of the Industrial Commission is affirmed.
Goicoechea Law Offices, Chtd., Boise, for appellant. Justin
P. Aylsworth argued.
Berlin Kading Turnbow & McKlveen, Chtd., Boise, for
respondent. Neil D. McFeeley argued.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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
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.
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.
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 ...