Graybill v. Swift & Co.

• Decision Date: 14 October 1988
• Docket Number: No. 16520,16520
• Court: Idaho Supreme Court
• Parties: Robert GRAYBILL, Claimant-Appellant, v. SWIFT & COMPANY, Employer, and Royal Insurance Company, Surety, Defendants-Respondents.

Page 763

766 P.2d 763

115 Idaho 293

Robert GRAYBILL, Claimant-Appellant, v. SWIFT & COMPANY, Employer, and Royal Insurance Company, Surety, Defendants-Respondents.

No. 16520.

Supreme Court of Idaho.

Oct. 14, 1988.

Emil F. Pike, Jr., Twin Falls, for claimant-appellant.

Penland & Munther, Boise, for defendants-respondents. Paul S. Penland, argued.

BAKES, Justice.

Claimant sustained an industrial accident and injury while employed by respondent Swift & Company. The doctors diagnosed claimant as having a back strain, accompanied by complaints of back pain and right and left thigh pain. No objective orthopedic or neurological changes were found by any of the examining physicians. At the time of the hearing claimant was engaged in employment which provided him a salary equal to that which he earned prior to his accident, although claimant claimed to be under constant pain from the accident.

The claimant's treating physician rated claimant as having a 10% permanent partial impairment of the whole man, based primarily upon his subjective complaints of pain. The employer's expert medical testimony initially rated claimant as having an impairment of 3%, based upon his subjective complaints of pain, but following the viewing of a surveillance film shown at a second hearing before the commission, this medical evidence was revised to rate the impairment as 0%. In an apparent compromise decision, the commission found that claimant had an impairment rating of 6 1/2% of the whole man which, according to the commission, was "based primarily upon claimant's pain complaints." After considering claimant's age, education, work experience and the other non-medical factors provided for in I.C. § 72-425, the commission made its finding of fact that claimant's "impairment of 6 1/2% of the whole man, which is based primarily upon claimant's pain complaints, accurately reflects claimant's loss of ability to engage in gainful activity." Accordingly, the commission determined that claimant's permanent disability under I.C. § 72-423 ¹ was 6 1/2% of the whole man.

Claimant appeals, alleging that the commission did not consider his subjective complaints of pain in arriving at his permanent disability. Under the Workmen's Compensation Law, the injured party's entitlement to disability benefits is based upon a "permanent disability evaluation" which, under I.C. § 72-425, is "an appraisal of the injured employee's present and probable future ability to engage in gainful activity as it is affected by the medical factor of permanent impairment and by pertinent non-medical factors provided in section 72-430, Idaho Code [including age, sex, education, economic and social environment]." (Emphasis added.) The permanent impairment portion of that analysis, as defined in I.C. § 72-422 "is any anatomic or functional abnormality or loss after maximal medical rehabilitation has been achieved and which abnormality or loss, medically, is considered stable or nonprogressive at the time of evaluation."

The commission's finding that claimant had a permanent physical impairment of 6 1/2%, based primarily upon his subjective complaints of pain, is not challenged by the claimant. Rather, the claimant challenges the commission's failure to enhance his disability rating, over and above the impairment evaluation, because of the nonmedical factors set out in I.C. § 72-425. He argues that his subjective pain complaints should have been considered as one of the non-medical factors. However, this Court has recognized that a permanent disability rating need not be greater than the impairment rating if, after consideration of the non-medical factors in I.C. § 72-425, the claimant's "probable future ability to engage in gainful activity" is accurately reflected by the impairment rating. Where a claimant has produced "no significant evidence in the record which bears on a disability in excess of the permanent impairment rating," an additional award in excess of the impairment may not be sustained. Smith v. Payette County, 105 Idaho 618, 622, 671 P.2d 1081, 1085 (1983).

The primary purpose of an award of permanent disability is to compensate the claimant for a reduction in the claimant's capacity for gainful activity. I.C. § 72-425. In Bennett v. Clark Hereford Ranch, 106 Idaho 438, 440-41, 680 P.2d 539, 541-42 (1984), this Court stated that the test for determining whether a claimant has suffered a permanent disability greater than permanent impairment is "whether the physical impairment, taken in conjunction with non-medical factors, has reduced the claimant's capacity for gainful activity." Here the Industrial Commission specifically found that the claimant's impairment rating of 6 1/2% "accurately reflects claimant's loss of ability to engage in gainful activity." That finding was sustained by evidence in the record. Claimant's lumbar strain had, according to the doctors' testimony, become medically stable and had reached a maximal point of medical recovery. There was no objective evidence of injury, and claimant was able to continue working at a salary equal to that which he earned prior to the accident. The Industrial Commission's finding that claimant's permanent disability is 6 1/2% of the whole man is supported by substantial competent evidence and is affirmed.

Claimant further argues that the commission's conclusion of law number 2 was erroneous because it indicates that the commission did not consider his chronic pain in arriving at its disability evaluation. We disagree. While conclusion of law number 2 could perhaps be worded better, when read as a whole, and particularly when read in conjunction with the commission's finding of fact that the "impairment of 6 1/2% of the whole man, which is based primarily upon claimant's pain complaints, accurately reflects claimant's loss of ability to engage in gainful activity," conclusion number 2 demonstrates that the commission properly understood the role of the impairment evaluation, augmented by non-medical factors, in arriving at a disability evaluation. In its conclusion of law number 2 the commission noted that if an impairment evaluation had been based solely upon a "discrete physiological deficit," without considering subjective limitations such as chronic pain, then it would be appropriate to separately consider pain in arriving at the disability evaluation. However, the commission in conclusion of law number 2 noted that, "Where, as here, the impairment evaluation performed by the medical experts pursuant to I.C. § 72-424 include[d] such subjective factors as pain," it was unnecessary for the commission to add a further disability award for pain pursuant to I.C. § 72-425.

The ultimate issue in any disability compensation case is the "permanent disability evaluation" under I.C. § 72-425 which is "an appraisal of the injured employee's present and probable future ability to engage in gainful activity...." Here, the commission resolved that issue, finding that the "6 1/2% of the whole man [rating] which is based primarily upon claimant's pain complaints, accurately reflects claimant's loss of ability to engage in gainful activity." That finding is supported by the evidence in the record. Accordingly, the order of the Industrial Commission is affirmed.

Costs to respondent. No attorney fees allowed.

SHEPARD, C.J., and JOHNSON, J., concur.

HUNTLEY, Justice, concurring specially.

I concur in the result reached by the Commission and the majority opinion of Justice Bakes, while disapproving of one of the concepts which may or may not be intentionally expressed by the Commission.

The Commission in Conclusion No. II states:

In many cases, a claimant suffers a physical impairment, and the rating rendered for that impairment not adequately compensate the claimant for the loss of ability to engage in gainful activity. Such a circumstance occurs when the impairment is based upon discrete physiological deficits, such as loss of range of motion, but which does not include more subjective limitations, such as those caused by chronic pain. Where, as here, the impairment evaluation performed by the medical experts pursuant to I.C. § 72-424 includes such subjective factors as pain, it may not be appropriate for the Commission to add a further disability award pursuant to I.C. § 72-425. The Commission concludes that such is the case here. (Underscore added).

If what the Commission meant to say was that when pain has been considered in determining impairment, it cannot be further considered in connection with the nonmedical factors which might result in a disability rating higher than that rating based upon impairment alone, then I believe the Commission would be wrong.

In other words, pain might limit the physical range of motion of a person's back resulting in an impairment of a certain percentage of the whole man. The presence of that pain, considered in connection with the nonmedical factors, also might justify a disability rating higher than the impairment rating.

Since I think the Commission understands the foregoing concepts and merely had inadvertent wording in its opinion, I concur in the result reached by the majority.

BISTLINE, Justice, dissenting.

I cannot countenance the result reached by the majority and therefore dissent. What follows is an alternative version which, unfortunately for both Mr. Graybill and the state of the law in this jurisdiction, did not garner a majority. The reader can judge which one properly applies our worker's compensation statutes and precedent to the record in this matter.

It is not disputed that claimant sustained a compensable industrial injury while employed by respondent Swift & Company. The sole issue presented is whether the Commission erred in rejecting any consideration of chronic pain as a criterion in establishing claimant's disability. The Commission's finding of 6.5 percent physical impairment of the whole person was based on a medical...