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Erdmann v. Stone Container Corp.

Court of Workers Compensation of Montana

April 18, 2000

DONALD ERDMANN Petitioner
v.
STONE CONTAINER CORPORATION Respondent/Insurer/Employer.

          Submitted: January 25, 2000

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER JUDGE

         Summary: 67-year-old claimant had worked for paper mill for twenty-six years before retiring in 1991 on advice of psychiatrist treating him for depression related to back pain and leukemia. He now claims benefits relating to hearing loss, contending that hearing loss was a "factor" in his retirement, though not mentioned at the time of retirement. Self-insured employer argued claimant was not prevented from working due to hearing loss, presenting evidence of policies and practices designed to prevent hearing damage which would permit claimant to have continued working if he desired.

         Held: Under section 39-72-405, MCA (1991, 1993), claimant must establish both that it was medically inadvisable for him to continue employment and that he suffered a wage loss in order to be entitled to benefits described in that section. He is not entitled to benefits where he did not convince the WCC that it was medically inadvisable for him to return to work on account of hearing problem. WCC also did not credit claimant's testimony that he retired in part because of hearing problem.

         Topics:

Constitution, Statutes, Regulations and Rules: Montana Code: 39-72-405, MCA (1991, 1993). Where credible evidence demonstrated that retired claimant alleging hearing loss could safely return to work using ear protection devices, he is not entitled to statutory benefits available to occupational disease claimants for whom it is "medically inadvisable" to return to work.
Medical Conditions: Deafness. Where credible evidence demonstrated that retired claimant alleging hearing loss could safely return to work using ear protection devices, he is not entitled to statutory benefits available to occupational disease claimants for whom it is "medically inadvisable" to return to work.
Occupational Disease: Indemnity (39-72-405) Awards. Where credible evidence demonstrated that retired claimant alleging hearing loss could safely return to work using ear protection devices, he is not entitled to statutory benefits available to occupational disease claimants for whom it is "medically inadvisable" to return to work.

         ¶1 The trial in this matter was held on January 25, 2000, in Helena, Montana. Petitioner, Donald Erdmann (claimant), was present and represented by Mr. Richard J. Martin. Respondent, Stone Container Corporation (Stone Container), was represented by Mr. Peter J. Stokstad. A transcript of the trial has not been prepared.

         ¶2 Witnesses and Deposition: The claimant and Steve Hess testified at trial. In addition, the deposition of Michael J. Dixon, M.D., was submitted for the Court's consideration.

         ¶3 Exhibits: Exhibits 1 through 10 were admitted without objection.

         ¶4 Issues: The issues, as stated by the parties in the Pretrial Order, are as follows:

1.Whether Petitioner suffered a wage loss as a result of his occupational disease?
2.Whether Petitioner is entitled to a non-disabling award as provided under § 39-72-405 M.C.A.?
3.Whether Petitioner's hearing loss should be apportioned pursuant to § 39-72-706 M.C.A., and if so, what is the correct apportionment?

(Pretrial Order at 2.)

         ¶5 Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the deposition and exhibits, and the ...


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