Archer v. Bonners Ferry Datsun

• Decision Date: 31 January 1990
• Docket Number: Nos. 17184,17204,s. 17184
• Citation: 786 P.2d 557,117 Idaho 166
• Parties: Robert ARCHER, Claimant-Respondent, v. BONNERS FERRY DATSUN, Employer, and Universal Underwriters Insurance Company, Surety, Defendants-Appellants, and State of Idaho, Industrial Special Indemnity Fund, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 557

786 P.2d 557

117 Idaho 166

Robert ARCHER, Claimant-Respondent, v. BONNERS FERRY DATSUN, Employer, and Universal Underwriters Insurance Company, Surety, Defendants-Appellants and State of Idaho, Industrial Special Indemnity Fund, Defendant-Appellant.

Nos. 17184, 17204.

Supreme Court of Idaho.

Jan. 31, 1990.

[117 Idaho 167] Coughlan, Coughlan & Korn, Boise, for appellants Bonners Ferry Datsun and Universal Underwriters Ins. Co., Glenn A. Coughlan, argued.

Elsaesser, Jarzabek, & Buchanan, Sandpoint, for respondent, Robert Archer. Joseph Edward Jarzabek, argued.

Jim Jones, Atty. Gen., and Skinner, Fawcett & Mauk, Boise, for respondent, State of Idaho, Indus. Sp. Indem. Fund. William L. Mauk, argued.

Clements, Brown & McNichols, Lewiston, for amicus, Workers' Compensation Exchange. Michael E. McNichols, argued.

Penland & Munther, Boise, for amicus Idaho Employers Council. Paul S. Penland, argued.

The Previous Opinion Issued December 15, 1988, is Hereby Withdrawn and this Opinion is Substituted Therefor.

ON REHEARING

JOHNSON, Justice.

This is a worker's compensation case. The primary issue presented in this appeal is whether there was substantial competent evidence to support the finding of the Industrial Commission that the claimant (Archer) was totally and permanently disabled under the odd-lot doctrine. The Industrial Special Indemnity Fund (ISIF) also contests the apportionment of compensation for fifty percent of Archer's disability to ISIF. We affirm the decision of the Commission on each of these issues. We reverse the Commission's award of attorney fees to Archer from the employer and remand this portion of the case to the Commission for further consideration.

I.

THE BACKGROUND AND PRIOR PROCEEDINGS.

Archer injured his left knee in 1976 while working in California. As a result of this injury, he wore a brace on his left knee beginning in 1980. In 1983, while working for Bonners Ferry Datsun (the employer), Archer injured his right knee. Surgery was performed, and the condition of his right knee became permanent and stationary by September 1984. The employer's surety paid Archer temporary total disability benefits in 1983 and 1984 and permanent partial disability benefits in 1984 and 1985. These payments were terminated in December 1985.

Hearings were held before the Commission in 1985 to determine the degree of Archer's permanent disability and the respective responsibilities of the employer and ISIF for further compensation. In August 1986 the Commission awarded Archer temporary total disability benefits from the employer for his right knee injury. The Commission found that Archer was unemployable in the area where he lived, and that if retraining could be arranged, he would be cooperative and would accept retraining. The Commission found that Archer was entitled to fifty-two weeks of retraining benefits, including relocation costs, and held in abeyance a determination of his permanent physical impairment and permanent disability until the retraining was completed. The Commission also awarded Archer attorney fees of thirty-three and one-third percent of all compensation paid or to be paid.

In December 1986, pursuant to a motion for reconsideration by the employer, the Commission issued a new decision reaffirming its prior decision. In this new decision the Commission stated that the parties had stipulated and agreed for Archer to obtain retraining at North Seattle Community College commencing in January 1987. The Commission also awarded Archer $10,000 attorney fees from the employer's surety and ISIF based on their agreement. Archer then sought a writ of prohibition from this Court contending that he had not agreed to relocate for retraining and asking this Court to prohibit the Commission from enforcing its decision of December 1986. Before a decision was made on Archer's request for a writ of prohibition, the Commission issued a new decision giving Archer the option to pursue retraining either at North Seattle Community College or at North Idaho College, so that he would not have to relocate out of Idaho. In this decision the Commission again awarded Archer $10,000 in attorney fees, to be paid equally by the surety and ISIF. Archer appealed this decision. Shortly thereafter this Court issued an alternative writ of prohibition requiring the Commission to show cause why it should not be required to refrain from enforcement of its decision of December 1986. Upon the motion of the employer, Archer's appeal was remanded to the Commission "for further hearings and reconsideration of its prior orders in light of the ALTERNATIVE WRIT OF PROHIBITION issued by this Court on the 2nd day of February, 1987 and made permanent and peremptory by Order of even date herewith."

Upon remand the Commission withdrew all previous decisions and awards and substituted a new decision. In this new decision the Commission found that Archer could not effectively compete in a labor market for regular established gainful employment and that his permanent physical impairment combined with non-medical factors rendered him totally and permanently disabled under the odd-lot doctrine. The Commission apportioned fifty percent of the liability for Archer's total permanent disability to the employer and ordered the remainder of the income benefits to be paid by ISIF. The Commission also found that the employer had neglected to pay some of Archer's medical expenses and awarded Archer attorney fees of thirty-three and one-third percent of all income benefits awarded to him, including all amounts previously paid as permanent partial impairment or disability compensation. The employer, its surety and ISIF have appealed these decisions of the Commission.

II.

THERE IS SUBSTANTIAL COMPETENT EVIDENCE TO SUPPORT THE ODD-LOT DETERMINATION.

The employer and ISIF argue that there is not substantial competent evidence to support the finding of the Commission that Archer was totally and permanently disabled under the odd-lot doctrine. This Court has repeatedly held that odd-lot status is a factual determination within the discretion of the Commission and that we will sustain the Commission's finding on this issue, if it is supported by substantial competent evidence. Kindred v. Amalgamated Sugar Co., 114 Idaho 284, 291, 756 P.2d 401, 408 (1988). There is substantial evidence to support the Commission's finding that Archer was in the odd-lot category.

The Commission found that Archer suffered a permanent physical impairment equal to forty percent of the whole man. The testimony before the Commission clearly supports this finding. In his deposition of October 8, 1985, Dr. O'Keefe testified that Archer had a twenty percent impairment related to the right knee. Although some question arose as to what part of that impairment was due to arthritis, Dr. O'Keefe testified that there were no objective findings that would indicate the existence of arthritis in Archer's right knee. (Deposition of Dr. O'Keefe of October 8, 1985, pp. 47-48 and 51.) A panel of doctors that examined Archer also evaluated the permanent impairment due to the injury to his right knee at twenty percent of a whole person. Although he had previously testified differently, in his deposition of August 2, 1985, Dr. Blaisdell stated that because of the brace that Archer was required to wear on his left knee, the impairment of that knee should be rated at fifty percent of the extremity or twenty percent of the whole person. (Deposition of Dr. Blaisdell of August 2, 1985, pp. 26-7 and 35-6.) Dr. O'Keefe accepted Dr. Blaisdell's rating of the left knee.

In arriving at a finding that Archer was totally and permanently disabled under the odd-lot doctrine the Commission relied on the testimony of Archer that he had applied for a variety of jobs at local businesses and had received no job offers. He also testified that he had been unable to secure employment of any nature either on his own or with the assistance of the Department of Employment or the Veterans Administration. The Commission found that there had been no showing that some kind of suitable work was regularly and continuously available to Archer, nor that there was an actual job within a reasonable distance of Archer's home that he was able to perform or for which he could train and in which he had a reasonable opportunity to be employed. There was substantial competent evidence to support these findings. We affirm the Commission's determination that Archer was totally and permanently disabled under the odd-lot doctrine.

III.

MAPUSAGA REVISITED AND REVISED.

The apportionment of liability for Archer's total permanent disability was based on the twenty percent impairment ratings that had been given for each of Archer's knees. ISIF asserts that there was not substantial evidence that Archer's impairment due to his left knee was a subjective hindrance to reemployment as required by I.C. § 72-332(2) (1988). This statute provides that in determining the liability of ISIF for a portion of a worker's total permanent disability because of a pre-existing permanent physical impairment, the impairment "shall be interpreted subjectively as to the particular employee involved." Id.

In Mapusaga v. Red Lion Riverside Inn, 113 Idaho 842, 847-48, 748 P.2d 1372, 1377-78 (1987) we concluded that a proper analysis of I.C. § 72-332(2) involves a two-step process:

(1) whether the injured claimant considers the pre-existing impairment an obstacle or hindrance to further employment, and, if so, (2) whether a reasonable employer under the circumstances would consider the claimant's impairment to be of such a nature that any subsequent injury combined with the impairment would more likely make the claimant totally and permanently disabled.... If both requirements are met, a claimant will be considered to have a "permanent physical impairment" within the meaning of I.C. § 72-332(2).

Today, we acknowledge that the two-step process...