Bennett v. Clark Hereford Ranch

• Decision Date: 19 April 1984
• Docket Number: No. 14429,14429
• Citation: 106 Idaho 438,680 P.2d 539
• Parties: Alfred Lee BENNETT, Claimant-Appellant, v. CLARK HEREFORD RANCH, and Fireman's Fund Insurance Company, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 539

680 P.2d 539

106 Idaho 438

Alfred Lee BENNETT, Claimant-Appellant, v. CLARK HEREFORD RANCH, and Fireman's Fund Insurance Company, Defendants-Respondents.

No. 14429.

Supreme Court of Idaho.

April 19, 1984.

William McDougall, Boise, Emil Pike, Twin Falls, for claimant-appellant.

John W. Barrett, Moffatt, Thomas, Barrett & Blanton, Boise, for defendants-respondents.

BISTLINE, Justice.

Alfred Lee Bennett suffered a back injury on January 19, 1976, while working at Clark Hereford Ranch near Buhl, Idaho. The surety, Fireman's Fund Insurance Company, thereafter voluntarily paid Mr. Bennett temporary total disability compensation for 51 weeks from the date of the accident until January 12, 1977, the date on which Mr. Bennett was released from ongoing care by Dr. Swartling, his orthopedic physician. ¹ Dr. Swartling gave Mr. Bennett a 15 percent medical impairment rating. The surety thereafter voluntarily paid Mr. Bennett $6,187.50 for the 15 percent medical impairment. No compensation agreement was entered into between the parties.

On November 9, 1978, Mr. Bennett filed an application with the Industrial Commission requesting an award of permanent disability compensation pursuant to I.C. § 72-423. ² The hearing before a referee was held on May 6, 1980. On September 11, 1981, the Commission approved the referee's decision denying Mr. Bennett's claim.

The following evidence was presented before the referee and was summarized in the referee's findings of fact, which were adopted by the Commission. On the date of the accident, Mr. Bennett was a married man with seven children ranging from the ages of three to nineteen. He was 43 years old having no formal education and being able to neither read nor write. During his lifetime, he had been engaged in three principle fields of employment--construction, general farm labor and truck driving. After his accident, he was no longer able to engage in construction or farm labor because of his difficulty in bending, stooping, twisting, remaining in any position for long periods of time or lifting heavy objects. Mr. Bennett, was, however, able to continue truck driving although he testified that he had trouble loading and unloading the trucks and that he often had to stop and rest his back. ³

In the year prior to his accident, Mr. Bennett earned $4,000. After the accident, he remained unemployed for two and one-half years ⁴ until August of 1978. Mr. Bennett testified that he had looked for employment but "I couldn't get around very good. I have to see Dr. Swartling quite often and I was going to once but no one would give me a job." R., p. 62. Mr. Bennett testified that when he couldn't find a job he bought an old truck which he operated until December of 1978 when the engine blew up. The engine was replaced in January of 1979 and three days later it also blew up. The truck has remained impounded in Texas with a bill owing on it for $7,200. During the six months in 1978 in which Mr. Bennett worked as a self-employed truck driver he grossed $3,000. This figure does not take into consideration the $7,200 repair bill owing on the truck. In 1979, Mr. Bennett worked for five different employers; his earnings amounted to $2,000. In 1980, Mr. Bennett worked for two different employers; at the time of the hearing he had worked for two weeks at his last temporary job of hauling sand and gravel which paid $4.50 an hour for 10-hour work days five and one-half days a week. Mr. Bennett testified that that particular job would probably last the summer if he could stand the physical pain and discomfort occasioned in loading and unloading the truck, and in sitting for long periods of time on the road. R., p. 76.

In holding that Mr. Bennett had failed to establish entitlement to a disability award greater than his physical impairment rating, the referee wrote, with which two members of the Commission agreed:

"That burden of proof in a workmen's compensation case is upon the Claimant to present expert opinion concerning the degree of disability. In this case, the Referee concludes that Claimant has failed, by preponderance of the evidence, to prove that Claimant's present circumstances are related to his industrial accident of January 19, 1976. The medical opinions in this case indicate that Claimant is able to continue with his truck driving activities. The record reflects that Claimant has, in fact, been employed as a truck driver since his industrial accident, and that in fact his reason for discontinuing his truck driving as an independent truck driver was financial inability to have an engine repaired. At the time of the hearing, Claimant was in fact working as a truck driver in the State of Texas working 10 hours per day five to five and a half days per week.

"As such, Claimant has failed to sustain his burden of proof in establishing a disability greater than a 15% whole man permanent physical impairment award. All workmen's compensation benefits due Claimant as a result of the industrial accident have heretofore been paid by Defendant-Surety."

R., p. 70 (emphasis added).

Mr. Bennett's principle contention on appeal is that the Commission used the wrong legal standard in determining that he was not entitled to a disability award greater than his medical impairment rating. He argues that the test for determining whether a claimant has suffered permanent disability greater than medical impairment is not whether the claimant is able to return to work at some employment, but rather whether the physical impairment, taken in conjunction with nonmedical factors, has reduced the claimant's capacity for gainful activity. We agree.

I.C. § 72-425, at the time relevant to this proceeding, ⁵ provided that the evaluation of permanent disability 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 nonmedical factors, such as age, sex, education, economic and social environment." (Emphasis added.)

After reviewing the Commission's findings of fact and conclusions of law, we find it clear that the Commission did not apply the standard set forth in I.C. § 72-425 in determining that Mr. Bennett was not entitled to a disability award greater than his medical impairment rating. There is no indication that the Commission examined Mr. Bennett's "ability to engage in gainful activity as it is affected ... by nonmedical factors, such as age, sex, education, economic and social environment." The Commission did not examine such factors as that Mr. Bennett was 43 years of age with no formal education or ability to read or write; that Mr. Bennett could not longer engage in construction or farm work; or that his ability to drive trucks was diminished by his accident.

Similarly, in Lyons v. Industrial Special Indemnity Fund, 98 Idaho 403, 406, 565 P.2d 1360, 1363 (1977), this Court, in holding that the claimant had demonstrated, as a matter of law, that he fell within the "odd-lot" category of those persons whose medical conditions combined with nonmedical factors rendered them virtually unemployable, stated:

"In addition to the medical factor of permanent impairment, the Commission must also consider nonmedical factors such as age, sex, education, economic and social environment, training, and usable skills. I.C. § 72-425. The Commission's approach in this case does not adequately consider the effect of these nonmedical factors on appellant's ability to obtain employment. Appellant has a ninth grade education and no special training or skills. His primary vocational asset was his ability to perform heavy manual labor. While his lack of formal education, special training, and usable skills did not prevent him from working in the past, it will undoubtedly lessen his chances of finding employment in the future. At best, appellant can only offer a prospective employer the ability to perform unskilled light work of a highly restricted nature. His position differs from that of someone such as an accountant who would still have valuable skills to offer an employer in spite of a substantial physical handicap." (Emphasis added.)

See Carey v. Clearwater County Road Department, (Distribution No. 11, Supreme Court No. 14690); Gordon v. West, 103 Idaho 100, 645 P.2d 334 (1982); Reifsteck v. Lantern Motel and Cafe, 101 Idaho 699, 619 P.2d 1152 (1980); Francis v. Amalgamated Sugar Co., 98 Idaho 407, 565 P.2d 1364 (1977).

Instead of evaluating Mr. Bennett's disability in terms of his "ability to engage in gainful activity as it is affected by the medical factor of permanent impairment and by nonmedical factors," it appears that the Commission merely considered the fact that Mr. Bennett was presently employed as a truck driver; that "his reason for discontinuing his truck driving as an independent truck driver...