870 P.2d 1292 (Idaho 1994), 20206, Davaz v. Priest River Glass Co., Inc.

Docket Nº:20206.
Citation:870 P.2d 1292, 125 Idaho 333
Opinion Judge:McDEVITT, Chief Justice. BISTLINE,
Party Name:Neil DAVAZ, Claimant-Appellant, v. PRIEST RIVER GLASS CO., INC., Employer, and Idaho State Insurance Fund, Defendants-Respondents.
Attorney:John T. Mitchell and Thomas A. Mitchell, Coeur d'Alene, for claimant-appellant. John T. Mitchell, argued. Randall Blake & Cox, Lewiston, for defendants-respondents. Jay P. Gaskill, argued.
Judge Panel:BISTLINE, Justice, dissenting.
Case Date:February 02, 1994
Court:Supreme Court of Idaho

Page 1292

870 P.2d 1292 (Idaho 1994)

125 Idaho 333

Neil DAVAZ, Claimant-Appellant,


PRIEST RIVER GLASS CO., INC., Employer, and Idaho State Insurance Fund, Defendants-Respondents.

No. 20206.

Supreme Court of Idaho, Coeur d'Alene.

February 2, 1994

Rehearing Denied April 7, 1994.

Dissenting Opinion on Denial of Rehearing by Bistline, Justice April 7, 1994.

Page 1293

[125 Idaho 334] John T. Mitchell and Thomas A. Mitchell, Coeur d'Alene, for claimant-appellant. John T. Mitchell, argued.

Randall Blake & Cox, Lewiston, for defendants-respondents. Jay P. Gaskill, argued.

McDEVITT, Chief Justice.

Appellant Neil Davaz ("Davaz") appeals from an order of the Industrial Commission ("Commission") defining the extent of his permanent disability resulting from injuries sustained in a work-related accident that occurred at defendant business Priest River Glass Company. Specifically, Davaz contests the Commission's use of the job market in Missoula, Montana, where Davaz obtained employment after the accident, to measure Davaz's employability under I.C. §§ 72-430(1) and 425. Davaz argues that the Commission should have restricted the scope of its review to a reasonable geographic area around Priest River, Idaho, where Davaz lived and worked at the time of the accident. We affirm.


Davaz was injured on the job while working for respondent Priest River Glass Company ("Employer"). The injury prevented him from performing the necessary duties of his employment and, consequently, his employer terminated his employment. After receiving medical treatment and extensive rehabilitative therapy, Davaz submitted a

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[125 Idaho 335] claim to the Commission seeking to recover medical expenses and disability compensation from Employer and its surety, the Idaho State Insurance Fund ("ISIF"). Meanwhile, Davaz sought alternative employment in the Priest River area and retraining benefits from ISIF so he could qualify for comparable employment available in the Priest River area. ISIF refused to fund any retraining. Dr. Blaisdell, an orthopedic surgeon in Sandpoint, examined Davaz. Dr. Blaisdell found Davaz had impairments of 5% related to loss of motion in dorsolumbar spine; 3% impairment of the whole person due to pain that reduces his working capacities; 5% of the whole person due to Davaz's lifestyle, behavior and personality, which Dr. Blaisdell stated had been adversely affected; and an additional 5% impairment for each of the two levels of claimant's lumbar spine, which were affected by "Diskogenic disease." Dr. Blaisdell gave Davaz a medical impairment rating of 18.5%.

On February 4, 1991, Davaz found comparable employment in Missoula, Montana, and moved his family there from Priest River to begin work with Montana Glass, Inc. With the move, Davaz's wife lost her job running a day care where she earned $600-$800/month. Davaz also lost his position on the Priest River City Council for which he received $75/month and free water and sewer.

On March 14, 1991, a medical panel reevaluated Davaz and found he did not need further medical treatment and could return to his previous occupation as a glazier. The panel concluded that Davaz had a permanent physical impairment of 6%. On August 23, 1991, Davaz filed application for hearing before the Industrial Commission to recover permanent disability compensation from Employer. Davaz presented uncontroverted testimony that he received $10.45/hour at the time of the injury, and worked 10-18 hours of overtime per week at time-and-a-half pay. Dan Brownell, an agent of respondent ISIF, testified that there were no comparable paying jobs in the Priest River area given Davaz's physical limitations, and that the most Davaz could expect to earn was $5 to $6 an hour. He also testified that Davaz was extremely motivated to find new employment.

On September 8, 1992, the Commission filed its Findings of Fact, Conclusion of Law, and Order. The Commission found that the injury occurred while Davaz was lifting large pieces of glass for Employer. It also found that the injury precluded Davaz from his former employment that required heavy lifting. The Commission recognized that Davaz actively sought comparable employment in Priest River, that comparable employment most likely was unavailable within a reasonable geographic area, and that Davaz would likely be limited to jobs paying 50-60% of his formerly hourly wage. Nonetheless, because Davaz relocated to an area where he found comparable employment, the Commission refused to measure his disability against the labor market he left in Priest River. Instead, the Commission measured his disability against the labor market he voluntarily entered after the injury occurred. Based on the latter measure, the Commission found that Davaz had sustained a permanent disability due to non-medical factors in the amount of 10% of the whole person, in excess of his physical impairment rating of 8.25%. Davaz appeals the Commission's rulings, challenging the relevancy of the Missoula labor market, and, in the alternative, asserting that, should the Missoula labor market be applicable, the expenses and losses that Davaz incurred in moving to Missoula should be considered.


  1. Whether the Industrial Commission erred in considering the Missoula labor market to determine the extent of Davaz's disability.

  2. Whether the Industrial Commission should have considered expenses and losses incurred in the move to Missoula.

  3. Whether the Industrial Commission made sufficient findings of fact to support its ruling.


The standard of review for appeals from the Industrial Commission is two-fold.

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[125 Idaho 336] The Commission's factual findings are subject to a clear error standard, and will be upheld if supported by competent and substantial evidence construed most favorably to the party who prevailed below. Vernon v. Omark Indus., 115 Idaho 486, 488, 767 P.2d 1261, 1263 (1989) (citing Johnson v. Bennett Lumber Co., 115 Idaho 241, 766 P.2d 711 (1988); and Blackwell v. Omark Indus., 114 Idaho 10, 15, 752 P.2d 612, 617 (1988)). However, this Court exercises free review over the Commission's conclusions of law. Idaho Const. art. V, § 9; Sprague v. Caldwell Transp., Inc., 116 Idaho 720, 722, 779 P.2d 395, 397 (1989).




When presented with a claim for permanent disability benefits, the Commission must evaluate the claimant's permanent disability according to I.C. §§ 72-425 and 72-430. Idaho Code § 72-425 defines permanent disability as a function of the claimant's ability to engage in gainful activity as affected by physical impairment in conjunction with nonmedical factors. Simply read, permanent disability compensation is awarded based on the claimant's decreased capacity to engage in gainful activity. Matthews v. Department of Corrections, 121 Idaho 680, 683, 827 P.2d 693, 696 (1992) (citing Graybill v. Swift & Co., 115 Idaho 293, 294, 766 P.2d 763, 764 (1988)). The claimant must prove the extent of his disability. Seese v. Ideal of Idaho, Inc., 110 Idaho 32, 34, 714 P.2d 1, 3 (1985). If there is no decreased capacity, no award is warranted.

Idaho Code § 72-430(1) prescribes the nonmedical factors that the Commission must consider when...

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