Ball v. DAW FOREST PRODUCTS CO.

• Decision Date: 25 June 2001
• Docket Number: No. 26050.,26050.
• Citation: 136 Idaho 155,30 P.3d 933
• Parties: Duane BALL, Claimant-Appellant, v. DAW FOREST PRODUCTS COMPANY, Employer, Liberty Northwest Insurance Corporation, Defendants-Respondents.
• Court: Idaho Supreme Court

30 P.3d 933

136 Idaho 155

Duane BALL, Claimant-Appellant, v. DAW FOREST PRODUCTS COMPANY, Employer, Liberty Northwest Insurance Corporation, Defendants-Respondents.

No. 26050.

Supreme Court of Idaho, Coeur d'Alene, April 2001 Term.

June 25, 2001.

Verby Law Office, Sandpoint, for appellant. Steven C. Verby argued.

Clements, Brown & McNichols, P.A., Lewiston, for respondents. Dean Wullenwaber argued.

SCHROEDER, Justice.

Duane Ball (Ball) appeals from the Industrial Commission's (Commission) decision that he suffered a fifty percent disability rather than a total and permanent disability. Ball also claims that the Industrial Commission made several legal and procedural errors.

I. BACKGROUND AND PRIOR PROCEEDINGS

At the time of the hearing, Ball was thirtynine years old and lived in Blanchard, Idaho. Blanchard is a small town located on Highway 41 about thirty-one miles north of Post Falls, thirty-nine miles southwest of Sandpoint and twelve miles south of Priest River.

In 1986 Ball began working at the Old Town Mill owned by DAW Forest Products, about a half-mile south of Priest River. On March 22, 1989, Ball suffered a crush injury and fractures to his left foot. The second, third, fourth and fifth metatarsals, and the proximal phalanx of his big toe were fractured. He had surgery to pin the second and third metatarsals. Ball developed an infection that required a skin graft, and he experienced several complications that required surgery, including knee surgery. He continued to work at the mill under physical restrictions.

In May of 1993 Ball had an elevated level of alcohol in his urine during a random drug test at the mill. He claimed that his use of alcohol was for self-medication purposes due to pain from his injuries. He was diagnosed as suffering from alcohol dependence, major depression, residual foot, knee, hip and back pain related to the injury, and serious symptoms including suicidal ideation, occasional panic attacks and impairment in social and occupational functioning. He completed inpatient treatment, remained sober and passed random alcohol tests for the next two and one-half years.

In June of 1996 Ball learned that the mill where he was working would be closed. Concerned about his future employment, Ball resumed heavy drinking.

In February 1994 Ball filed a claim for total permanent disability. In September of 1998 Referee Peggy McMahon conducted a hearing regarding Ball's claims. During the hearing Ball suffered a grand mal seizure and was taken by an emergency medical team to the hospital. Ball's attorney requested a continuance. The referee denied the request.

Following the referee's submission of proposed findings of fact and conclusions of law to the Commission, the Commission found that Ball suffered from the disease of chronic alcoholism with alcohol-related seizures. The Commission treated Ball's alcoholism and related seizures as a pertinent non-medical factor in determining the extent of his disability. The Commission found that Ball would have to undergo detoxification and rehabilitation before attempting to search for work. The Commission determined that a search for work might take a long time and probably result in only minimum wage employment, but the Commission found that the search would not be futile.

After considering the pertinent medical and non-medical factors, the Commission found that Ball suffers a disability of fifty percent, inclusive of his permanent physical impairment. The Commission awarded him $44,412.50. Ball moved for reconsideration and asked the Commission to reopen the hearing and/or retain jurisdiction. Ball's motions were denied. Ball appealed.

II. STANDARD OF REVIEW

The determination of whether a worker's compensation claimant is totally and permanently disabled is a question of fact. Dehlbom v. State, 129 Idaho 579, 582, 930 P.2d 1021, 1024 (1997), citing Sund v. Gambrel, 127 Idaho 3, 5, 896 P.2d 329, 331 (1995)

. Findings of fact made by the Commission will be upheld on appeal if supported by substantial and competent evidence. Boley v. State Indus. Special Indem. Fund, 130 Idaho 278, 280, 939 P.2d 854, 856 (1997),

citing Dehlbom, 129 Idaho at 582,

930 P.2d at 1024. Substantial evidence is "relevant evidence as a reasonable mind might accept to support a conclusion; it is more than a scintilla, but less than a preponderance." Evans v. Hara's, Inc., 123 Idaho 473, 478, 849 P.2d 934, 939 (1993),

citing Kinney v. Tupperware Co., 117 Idaho 765, 770, 792 P.2d 330, 335 (1990). "However, this Court exercises free review over the Commission's conclusions of law." Davaz v. Priest River Glass Co., Inc., 125 Idaho 333, 336, 870 P.2d 1292, 1295 (1994).

III.

THE COMMISSION DID NOT COMMIT ERRORS OF LAW BY FAILING TO UTILIZE AND/OR ARTICULATE THE LEGAL STANDARDS IT USED IN MAKING ITS DECISIONS.

Ball contends that the Commission failed to identify the burden of proof or rule of law it applied in its findings of fact and conclusions of law. He also argues that the Commission failed to articulate how its factual determinations were reached, citing Vernon v. Omark Industries, 113 Idaho 358, 744 P.2d 86 (1987), for the proposition that if the Commission fails to utilize the appropriate legal standard or fails to articulate the rule of law being applied, remand is required.

A. The Requirements of Establishing Permanent Disability.

Ball's claim for permanent disability revolves around his contention that he cannot drive, that he lives in a remote area and that he has other conditions that prevent him from working.

Idaho Code section 72-423 defines permanent disability as resulting when the "actual or presumed ability to engage in gainful activity is reduced or absent because of permanent impairment and no fundamental or marked change in the future can be reasonably expected."

In evaluating a permanent disability claim the Commission is to assign a claimant an evaluation rating which 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 as provided in section 72-430, Idaho Code." I.C. § 72-425.¹

As explained by this Court in Boley, supra, there are two methods by which a claimant may establish a permanent disability.

First, a claimant may prove a total and permanent disability if his or her medical impairment together with the nonmedical factors total 100%. If the Commission finds that a claimant has met his or her burden of proving 100% disability via the claimant's medical impairment and pertinent nonmedical factors, there is no need for the Commission to continue. The total and permanent disability has been established at that stage. See Hegel v. Kuhlman Bros., Inc., 115 Idaho 855, 857, 771 P.2d 519, 521 (1989)

.

...

The second method by which a claimant may prove total and permanent disability is for the claimant to demonstrate that he fits within the definition of an odd-lot worker. The odd-lot doctrine comes into play when the claimant has proved something less than 100% disability. Id. at 858, 771 P.2d at 522. The odd-lot category exists for those persons who are so injured as to be unable to perform services other than "those which are so limited in quality, dependability or quality that a reasonable stable market for them does not exist." Dehlbom, 930 P.2d at 1024.

Boley, 130 Idaho at 281, 939 P.2d at 857.

B. The Appropriate Legal Standard And Burden of Proof

The legal standard followed by the Commission in evaluating a claimant under either of the two above methods is based on an appraisal of the claimant's probable future ability to engage in gainful activity as it is affected by medical and non-medical factors. See I.C. § 72-425; Bennett v. Clark Hereford Ranch, 106 Idaho 438, 441, 680 P.2d 539, 542 (1984). Ball argues that because the Commission did not declare what burden he was required to satisfy, the case should be remanded for rehearing. As discussed above, there are two ways Ball could have established permanent disability: (1) by proving 100% disability, or (2) via the odd-lot doctrine. Under either of these methods the claimant must prove disability in excess of his impairment rating. Bennett, 106 Idaho at 442, 680 P.2d at 543.

It appears that this Court has not specifically articulated the burden of proof in the area of proving disability in excess of impairment, only that that is what the claimant must prove. However, the Court has stated that a claimant has the burden of proving all facts essential to recovery by a preponderance of the evidence. Although this burden has been discussed in the context of a claimant proving his accident arose out of his employment, that is, in the causation stage of the proceedings, there is no reason for a different burden in the area of concern in this case. See Evans v. Hara's, Inc., 123 Idaho 473, 479, 849 P.2d 934, 940 (1993)

.

Ball claims that because the Commission failed to articulate what legal standard and burden of proof he was subject to, the case must be remanded and reheard, relying on the Court's holding in Vernon v. Omark Industries, supra. Vernon

dealt with a case where the Commission found that the claimant did not sustain her burden of proof in showing that her injury arose out of and in the course of employment. In Vernon, the Court noted that although the Commission wrote extensively on the facts of the case they did "not explain the rule of law under which they were operating. They merely stated that the claimant did not meet her burden of proof." Vernon, 113 Idaho at 359,

744 P.2d at 87. The problem for the Court in Vernon was that it could not determine how the Commission reached its conclusions, so the case was remanded for the Commission to clarify the rationale it had used. Only in this manner could the Court determine whether the correct legal standard governing the available discretionary alternatives was...