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Wylie v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

October 29, 1997

SAMUEL CAL WYLIE Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for MONTANA DEPARTMENT OF JUSTICE Employer.

          Date Submitted: August 19, 1997

          ORDER DENYING APPLICATION FOR WRIT OF MANDAMUS

          Mike McCarter Judge

         Summary: Montana Highway Patrol employee alleging occupational deafness applied for writ of mandamus to compel the Department of Labor and Industry (DOL) to schedule a medical examination under the Occupational Disease Act (ODA).

         Held: The WCC has jurisdiction to issue a writ of mandamus in appropriate cases. The DOL is incorrect that petitioner's sole remedy is under the occupational deafness provisions of the ODA; he could have another claim. However, the Court agrees with the DOL and insurer that a writ should not issue where petitioner has a plain and speedy remedy at law through a contested case hearing before the DOL, for which he has already filed.

         Topics:

Jurisdiction: Writ of Mandamus. While the WCC has jurisdiction to issue a writ of mandamus in an appropriate matter relating to benefits, no writ will issue where claimant, who seeks to compel the Department of Labor to schedule a medical examination relating to his alleged deafness, has a plain and speedy remedy at law, to wit, a contested case hearing before the DOL, for which claimant has already filed.
Occupational Disease: Occupational Deafness. The WCC would not issue a writ of mandamus to compel the DOL to schedule a medical examination on claimant's alleged deafness where claimant has a plain and speedy remedy at law, to wit: a contested case hearing before the DOL, for which he has already filed.
Procedure: Mandamus. While the WCC has jurisdiction to issue a writ of mandamus in an appropriate matter relating to benefits, no writ will issue where claimant, who seeks to compel the Department of Labor to schedule a medical examination relating to his alleged deafness, has a plain and speedy remedy at law, to wit, a contested case hearing before the DOL, for which claimant has already filed.

         Petitioner, Samuel Cal Wylie (Wylie), seeks a writ of mandamus directing the Department of Labor and Industry (Department) to schedule a medical examination under the Occupational Disease Act (ODA). Multiple issues are raised by the application.

         Facts

         The facts pertaining to the application are set out in the Application for Writ of Mandamus, an attached Affidavit in Support of Writ of Mandamus, the various exhibits attached to the affidavit, and the responses filed by the State Compensation Insurance Fund (State Fund) and the Department. No evidentiary hearing has been held and none is necessary since on its face the application must be denied as a matter of law.

         As gleaned from the limited materials in the Court file, Wylie alleges he suffered a hearing loss as a result of exposure to "car high band radio" tones and squelch while employed by the Montana Highway Patrol. (Department's Response to Application for Writ of Mandamus, Ex. 8 - First Report of Occupational Injury or Occupational Disease.) He filed a claim for hearing loss with the State Fund on May 14, 1996. (Id.)

         The State Fund denied liability for Wylie's claim for hearing loss, stating that the hearing loss did not meet the occupational deafness requirements of Part 8 of the Workers' Compensation Act (WCA), Title 39, chapter 71, MCA. It specifically invoked section 39-71-811, MCA, which provides that "[n]o claim shall be filed . . . unless the employee is exposed 8 hours daily and for a period of at least 90 days as above required to noise intensity levels above 90 decibels." Its investigation had adduced that the vehicle radios to which claimant was allegedly exposed did not produce noise level above 90 decibels and that, in any event, Wylie was not exposed to 8 hours daily of noise. (State Fund's Response to Application for Writ of Mandamus, Ex. 1.)

         Wylie then wrote to the Department on several occasions demanding a medical panel examination under the ODA. (Application for Writ of Mandamus, Exs. 1, 3, 5; Department's Response to Application for Writ of Mandamus, Exs. 1, 3, 5.) His demands were denied by the Department's Employment Relations Bureau (ERD). (Application for Writ of Mandamus, Exs. 2, 4, 6; Department's Response to Application for Writ of Mandamus, Exs. 2, 4, 6; State Fund's Response to Application for Writ of Mandamus, Exs. 2 and 3.) ERD's denial of the request was based on its determination that Wylie's claim falls exclusively under the provisions of the Occupational Deafness provisions of Part 8 of the WCA and that the ODA is ...


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