Boley v. State, Indus. Special Indem. Fund

• Decision Date: 24 June 1997
• Docket Number: No. 23104,23104
• Citation: 130 Idaho 278,939 P.2d 854
• Parties: Stanley L. BOLEY, Claimant-Appellant, v. STATE of Idaho, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendant-Respondent. Twin Falls, March 1997 Term
• Court: Idaho Supreme Court

Page 854

939 P.2d 854

130 Idaho 278

Stanley L. BOLEY, Claimant-Appellant, v. STATE of Idaho, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendant-Respondent.

No. 23104.

Supreme Court of Idaho,

Twin Falls, March 1997 Term.

June 24, 1997

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

Alan G. Lance, Attorney General, Boise; Benoit, Alexander, Sinclair, Harwood & High, Twin Falls, for defendant-respondent. Thomas B. High argued.

SILAK, Justice.

This is an appeal from an Industrial Commission (Commission) decision denying appellant Stanley F. Boley (Boley) total and permanent disability benefits and denying him odd-lot worker status. We affirm.

I. FACTS AND PROCEDURAL BACKGROUND

Boley was born on September 27, 1936, and lives in Murtaugh, Idaho, eighteen miles east of Twin Falls. His employment history consists of work in potato processing plants in south-central Idaho, where he palletized piles of stacked boxes, operated the machine package and the glue machine, and did maintenance work. From 1985 through 1989, Boley was not employed full time, but he did odd jobs driving trucks hauling agricultural products. He has some experience drilling wells, fishing commercially and operating some heavy equipment.

Boley was last employed by Universal Frozen Foods (UFF) from February 1990 until October 1993. Boley began his employment at UFF as a machine operator. He could not operate the computer, so he did heavy duty maintenance work instead. Boley was responsible for sweeping floors, cleaning freezers and dumping barrels of discarded potato product into dumpsters.

Boley was diagnosed as suffering from a gradually progressive mild to moderate hearing loss in 1977. In 1992, the loss was moderate to severe. Boley also has an upper- and mid-back degenerative disease in which there is some narrowing between the disc spaces due to the aging process.

In August 1991, Boley suffered a heart attack at the age of 54 while moving heavy loads of potatoes in the heat. Boley was given a 10% whole man impairment rating by his cardiologist and was permitted to return to heavy duty work in October 1991. Because he was essentially unable to perform the heavy duty work, his job was modified to medium duty work which consists, in part, of occasionally lifting fifty pounds.

In December 1992, Boley, while at work at UFF, hyperextended the tendon of his left foot ultimately damaging his ankle. He sustained chronic Achilles tendinitis and wears a brace to prevent muscle problems and to relieve pain. Boley walks slowly and with a slight limp. After several weeks off after the injury, Boley returned to a new position at UFF as a security guard, a light duty job. This job entailed riding around the plant in a pick-up truck with another security guard. The other guard would get out of the truck to check doors and locks. Boley did not have to do any walking. After the plant was shut down for summer maintenance, the security guard position was eliminated. However, Boley was rehired the next season and was given a job at the inspection table where he could either sit or stand while cutting bad spots out of potatoes. Boley quit after two weeks, in October 1993, because the bending caused him neck and back pain, and he has not worked since.

Boley filed two workers' compensation complaints in October 1993, for each of his two injuries, seeking compensation for total and permanent disability, permanent partial impairment and permanent partial disability. In May 1994, Boley filed a workers' compensation complaint against respondent Industrial Special Indemnity Fund (ISIF), alleging entitlements to benefits pursuant to Idaho Code section 72-332.

At the hearing before the Commission referee in May 1995, Boley contended that back difficulties, his heart limitation, hearing and leg problems, coupled with non-medical factors, precluded him from the job market permanently. He also claimed that he was an odd-lot worker. Boley testified, however, that he is capable of driving and continues to hunt and fish which requires driving significant distances from his home.

In April 1996, the Commission issued an order adopting the findings of fact and conclusions of law of the referee. The Commission found that Boley was not totally and permanently disabled, but that he is entitled to benefits in the amount of 15% of the whole person for his heart attack, and that he is not entitled to future medical care related to his pre-existing heart condition. The Commission found that Boley is entitled to benefits in the amount of 33% of the whole person for the ankle injury. The Commission further found that Boley failed to establish a prima facie case for odd-lot worker status, and that although Boley is not totally and permanently disabled, he suffers a disability of 85% of the whole person. The Commission dismissed the claim against the ISIF. Boley later settled with UFF. Boley appeals.

II. ISSUES ON APPEAL

1. Whether the Commission erred in its determination that Boley failed to establish his claim for an award of total and permanent disability benefits.

2. Whether the Commission erred in its determination that Boley failed to establish a prima facie case of odd-lot worker status.

III. ANALYSIS

A. Standard of Review.

This Court's review of Commission decisions is limited to a determination of whether the findings of fact are supported by substantial and competent evidence. I.C. § 72-732(1); Smith v. O/P Transp., 128 Idaho 697, 699, 918 P.2d 281, 283 (1996). Substantial evidence is more than a scintilla of proof, but less than a preponderance. It is such relevant evidence as a reasonable mind might accept to support a conclusion. Boise Orthopedic Clinic v. Idaho State Ins. Fund, 128 Idaho 161, 164, 911 P.2d 754, 757 (1996). It is the Commission, not this Court, who is to weigh the evidence. Nelson v. David L. Hill Logging, 124 Idaho 855, 858, 865 P.2d 946, 949 (1993). We will not disturb the Commission's conclusions on the weight and credibility of the evidence on appeal unless they are clearly erroneous. Wheaton v. Industrial Special Indem. Fund, 129 Idaho 538, 541, 928 P.2d 42, 45 (1996). In reviewing a decision of the Commission, this Court views all facts and inferences in the light most favorable to the party who prevailed before the Commission. Smith v. J.B. Parson Co., 127 Idaho 937, 941, 908 P.2d 1244, 1248 (1996).

B. Substantial And Competent Evidence Exists To Support The Commission's Findings That Boley Did Not Establish A Prima Facie Case Of Odd-Lot Disability.

Whether a worker's compensation claimant is totally and permanently disabled is a question of fact, the determination of which will be upheld on appeal if supported by substantial and competent evidence. Dehlbom v. Industrial Special Indem. Fund, 129 Idaho 579, 582, 930 P.2d 1021, 1024 (1997). A "permanent disability" occurs under Idaho law "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." I.C. § 72-423. The evaluation of a permanent disability is an "appraisal of the injured employee's present and probable future ability to engage in gainful activity ..." I.C. § 72-425. In determining whether a claimant is permanently disabled, both medical and nonmedical factors are considered. Id. Among the nonmedical factors considered are the claimant's occupation, age at the time of the accident, and ability to compete in an open labor market in the geographical area. I.C. § 72-430(1).

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) (Bakes, J., specially concurring) ("Once 100% disability is found by the Commission on the merits of a claimant's case, claimant has proved his entitlement to 100% disability benefits, and there is no need to employ the burden-shifting odd lot doctrine").

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 reasonably stable market for them does not exist." Dehlbom, 930 P.2d at 1024.

In the present case, the Commission found that Boley suffers from a disability of 85% of the whole person. This finding is supported by substantial and competent evidence and is not disputed by Boley. Thus, Boley has failed to establish that he is totally and permanently disabled under the first method since his disability rating is less than 100%. We thus decide this case under the odd-lot worker doctrine.

With respect to the odd-lot worker theory, Boley contends that the Commission's findings of fact are not supported by substantial and competent evidence. Specifically, Boley argues that the evidence in this case is undisputed that he is not gainfully employable and that he therefore established odd-lot disability status as a matter of law. We disagree.

A claimant may establish a prima facie...