Miller v. Amalgamated Sugar Co., 14689
| Decision Date | 30 November 1983 |
| Docket Number | No. 14689,14689 |
| Citation | 672 P.2d 1055,105 Idaho 725 |
| Parties | Donald E. MILLER, Claimant-Respondent, v. AMALGAMATED SUGAR COMPANY, Employer-Appellant. |
| Court | Idaho Supreme Court |
Steven Arthur Adamson, of Adamson & Young, Nampa, for employer-appellant.
Jerry Goicoechea and Lynn M. Luker, Boise, for claimant-respondent.
This is an appeal from a decision of the Industrial Commission in which an award was made for a disability suffered by claimant from an occupational disease contracted during his employment with appellant Amalgamated. We affirm in part and reverse in part, and remand for additional proceedings.
Miller was employed at Amalgamated's Nampa plant for some 24 years as a welder and mechanic, and the nature of his duties required him to work over the entire area of the plant rather than at any one location. He spent most of that time working on and in the immediate vicinity of various heavy machines. For some time prior to 1979, Miller had experienced some difficulty with his hearing. Miller retired from employment in January 1979. After retirement, Miller's hearing continued to worsen and he consulted a Dr. Goltry, who diagnosed a sensorineural hearing loss, which was probably due to noise exposure. That diagnosis was made on October 31, 1980, and shortly thereafter Miller made claim against Amalgamated for the cost of a hearing aid, which demand was denied by the company, and on February 24, 1981, Amalgamated advised Miller that it felt no obligation to compensate him for any hearing problem he might have. The instant claim for compensation was filed with the Commission approximately March 19, 1981.
We note at the outset several unusual facets of the procedure before the Commission. The parties stipulated that the procedure before the Commission should be bifurcated with the Commission first addressing the issue of whether a hearing loss due to noise exposure in connection with a claimant's employment constitutes an occupational disease. The parties further stipulated the facts relevant to that issue and that "details supporting the employer's position, and the claimant's dispute of that position will be filed with the Industrial Commission, in brief form, * * *." Following submission of briefs, the Commission entered its findings of fact, conclusions of law, and order as to that portion of the bifurcated procedure holding that a loss of hearing could constitute an occupational disease compensable under Idaho's Workmen's Compensation Law and that Miller's hearing loss was contracted and incurred during his employment with Amalgamated.
Thereafter, the parties again stipulated that the remaining issues would be submitted to the Commission for decision on the basis of the record, including the deposition testimony of Dr. Goltry and the briefs of the parties. Hence, the facts before the Commission were essentially undisputed and only the conclusions to be drawn from those facts and the appropriate law to be applied remained in dispute between the parties. After such stipulation and the submission of the matter to the Commission, Amalgamated attempted to introduce an affidavit of a supervisor at its plant, but that affidavit was rejected by the Commission on the basis that such would violate the stipulation to submit the matter on the then existing record. Although this rejection is asserted as error on this appeal, we disagree. In view of the parties' stipulation, the decision of the Commission to reopen or not reopen the record lay in its discretion and no abuse thereof has been shown. We find no error in that action of the Commission.
Thereafter, the Commission filed its findings of fact, conclusions of law, and order as to the remaining issues. The Commission concluded that an occupational disease is first manifested when an employee first learns that a condition is the result of an occupational disease and that Miller's occupational disease was first manifested on October 31, 1980, when he received the advice of Dr. Goltry. The Commission also concluded that, although Miller did not provide a written notice to the employer within 60 days, Miller did provide information to the employer and seek benefits from the employer immediately following October 31, and that such notice was sufficient and that the employer was not prejudiced by lack of a written notice. The Commission further concluded that Miller suffers a permanent physical impairment of 14% of the whole man and is disabled to that extent. Miller concedes that his disability is equivalent to his physical impairment. From that decision and award, Amalgamated appeals. Miller contends on this appeal that Amalgamated is foreclosed from raising any issue decided by the Commission in its first findings, conclusions, and order but we disagree and decide the entire cause on its merits.
Although Amalgamated, both here and before the Commission, argued that a gradual loss of hearing does not constitute an occupational disease, no authority is cited for that position and we note the great weight of authority is to the contrary. See, e.g., Martinez v. Industrial Commission, 40 Colo.App. 485, 580 P.2d 36 (1978); Armco Steel Corp. v. Trafton, 35 Md.App. 658, 371 A.2d 1128 (1977); Myers v. State Workmen's Compensation Comm'r., 239 S.E.2d 124 (W.Va.1977); Green Bay Drop Forge Co. v. Industrial Commission, 265 Wis. 38, 60 N.W.2d 409 (1953); Rosati v. Despatch Shops, Inc., 298 N.Y. 813, 83 N.E.2d 860 (1949); Slawinski v. Williams & Co., 298 N.Y. 546, 81 N.E.2d 93 (1948); see also 1B A. LARSON, THE LAW OF WORKMEN'S COMPENSATION § 41.50 (1982). The decision of the commission correctly noted that the list of diseases enumerated in I.C. § 72-438 is not exclusive. The commission also considered and applied this Court's decision in Bowman v. Twin Falls Const. Co., 99 Idaho 312, 581 P.2d 770 (1978). We deem the instant facts even more compelling than Bowman since here the commission, as arbiter of the facts, has determined the existence of an occupational disease. We affirm that decision of the commission.
Amalgamated argues strenuously that no legitimate evidence indicates causation, i.e., that Miller's hearing loss resulted from his employment. We disagree. Again, we call attention to the manner in which this cause was submitted to the Commission by way of stipulated facts, the deposition of Dr. Goltry, and the briefs of the parties. Attached to the brief of Miller before the Commission were reports of OSHA inspections and violation reports of Amalgamated's Nampa plant, which related to excessive noise levels. Those documents were referred to in the deposition testimony of Dr. Goltry. Those OSHA documents were referred to and utilized by the Commission in arriving at its conclusion that Miller was subjected to excessive noise levels during his employment. The Commission then further concluded that the medical evidence established that such excessive noise levels probably contributed to the hearing loss of Miller. We hold that such evidence was sufficient foundation upon which to base the Commission's findings and conclusions in which it held that the excessive noise level at Amalgamated's plant was the cause of Miller's industrial disease, i.e., hearing loss. We affirm that portion of the decision of the Industrial Commission. We further note that before the commission no apparent objection was made to the commission's consideration of those OSHA documents and therefore Amalgamated's assertion of error at this point regarding the consideration of the OSHA documents cannot be accepted. See Texas Oklahoma Express v. Sorenson, 652 P.2d 285 (Okl.1982).
Amalgamated argues that the commission erred when it held Miller suffers a permanent physical impairment of 14% of the whole man. We disagree. The only medical testimony elicited clearly supports that finding,...
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