Brown v. Home Depot, Emp'r, Am. Home Assurance Co.
| Decision Date | 07 March 2012 |
| Docket Number | No. 38076.,38076. |
| Citation | 152 Idaho 605,272 P.3d 577 |
| Court | Idaho Supreme Court |
| Parties | Gary BROWN, Claimant–Appellant, v. The HOME DEPOT, Employer, American Home Assurance Company, Surety, State of Idaho Industrial Special Indemnity Fund, Defendants–Respondents. |
Ludwig Shoufler Miller Johnson, LLP, Boise, for appellant. Daniel A. Miller argued.
Bowen & Bailey, LLP, Boise, for respondents The Home Depot and American Home Assurance Company. William S. Wigle argued.
Mallea Law Offices, Meridian, for respondent State of Idaho, Industrial Special Indemnity Fund. Kenneth L. Mallea argued.
This appeal arises from a decision of the Industrial Commission (Commission). Gary Brown (Brown) filed a complaint with the Commission, seeking disability benefits after he injured his back while working for The Home Depot (Home Depot). Arguing that the injuries caused by the accident, in combination with his preexisting conditions, left him permanently and totally disabled, Brown sought workers' compensation benefits from both Home Depot and the Idaho Industrial Special Indemnity Fund (ISIF). The Commission determined that Brown was not permanently and totally disabled. Brown timely appealed.
Brown contends that the Commission erred by evaluating his ability to find work based upon his access to the local labor market at the time his medical condition stabilized in 2005. He argues that his labor market access should have been evaluated as of the date of the Commission hearing in 2009. Brown also argues that the Commission based its finding that he was 95 percent disabled on an incorrect understanding of the expert testimony of Douglas Crum (Crum), whose opinions the Commission apparently found to be persuasive. Brown argues that if the Commission had properly considered Crum's testimony, it would have found him to be 100 percent disabled. Alternatively, Brown argues that the Commission erred because the award of disability benefits was inconsistent with its apparent acceptance of Crum's opinions.
Brown asks this Court to remand this matter to the Commission with instructions to find him permanently and totally disabled as a matter of law or to reevaluate his disability rating in light of the proper labor market conditions. In the alternative, Brown asks that this matter be remanded with instructions to award greater disability benefits based upon Crum's opinion. We vacate the Commission's decision and remand for proceedings consistent with this opinion.
Brown began working part-time for Home Depot in 2001. While delivering a cabinet to a Home Depot customer in 2004, Brown slipped on snow-covered steps and injured his back. He received conservative treatment for the injury, but his condition worsened and he resigned from Home Depot in November, 2004. Brown underwent back surgery in early 2005 but had a difficult recovery and he was not found to be medically stable until December 8, 2005.
Brown filed a complaint with the Commission in 2007, seeking an award of total and permanent disability benefits. In 2008, Brown filed a complaint against ISIF, seeking an award of benefits for his preexisting impairments. The hearing on these claims was conducted on November 18, 2009.
Brown's surgeon rated Brown's permanent impairment at 12 percent as a result of the Home Depot industrial accident. Brown also had two preexisting injuries that resulted in permanent impairment ratings. First, Brown had two back surgeries in 2000, which resulted in a permanent impairment rating of 13 percent. Brown also had his left lung removed in 1982, which resulted in an impairment rating of 55 percent. Adding the new and preexisting ratings, the Commission found that Brown's overall permanent physical impairment was 80 percent. Brown's ability to secure employment was hotly contested at the disability hearing. Before going to work at Home Depot, Brown had a successful career as an engineer, managing large construction projects for Morrison–Knudsen. Brown retired in 1990, at age 43, believing that his investments would sustain him through retirement. However, in the aftermath of the stock market crash of 2000, Brown determined that he needed to return to work, at least on a part-time basis, and he went to work for Home Depot. Brown testified that he had wanted to resume his engineering career following his industrial accident. However, at the time of the hearing, he did not believe he was competent to work as an engineer. Brown also testified that he applied to work as a real estate agent, but was not hired by any of the firms he contacted.
The Commission received evidence from four vocational rehabilitation experts who had evaluated Brown's ability to secure employment. Browns expert, Nancy Collins, (Collins), concluded that Brown was "unemployable," and testified that he was totally and permanently disabled under the odd-lot doctrine. Her conclusions were based on the labor market that existed at the time of the hearing in 2009. Home Depots vocational expert, Crum, concluded that Brown was either 26 or 40 percent disabled, depending upon which medical restrictions the Commission determined were most appropriate. Crum also testified that his opinion was based on the 2009 labor market, but because the market in 2005 was better, his opinion would be the same for either market. ISIF's vocational expert, William Jordan, expressed his opinion that Brown was not totally disabled and testified that his report assessed Browns employability at the time of the disability hearing in 2009. The Commissions rehabilitation consultant, Cindy Lijewski, believed that Brown was employable between December of 2005 and June of 2006.
After the hearing, the Referee issued his Findings of Fact, Conclusions of Law, and Recommendation which the Commission adopted in their entirety. Emphasizing that Brown's disability must be evaluated as of the time that he reached maximum medical improvement, rather than the time of hearing, the Commission concluded that Brown was not permanently and totally disabled and rated his disability at 95 percent. Taking into account Brown's preexisting conditions and benefits already paid, the Commission awarded him benefits for 27 percent permanent disability. Brown appealed the Commission's finding that he is not totally and permanently disabled. Neither party requests attorney fees on appeal.
When this Court reviews an Industrial Commission decision, it "exercises free review over questions of law...." Fowble v. Snoline Exp., Inc., 146 Idaho 70, 74, 190 P.3d 889, 893 (2008) (citing Stolle v. Bennett, 144 Idaho 44, 47–48, 156 P.3d 545, 548–49 (2007) ). The interpretation of "a legislative act, such as the workers compensation statutes, presents a pure question of law...." Daleiden v. Jefferson Cnty. Jt. Sch. Dist. No. 251, 139 Idaho 466, 468, 80 P.3d 1067, 1069 (2003) (quoting Crawford v. Dept. of Corr., 133 Idaho 633, 635, 991 P.2d 358, 360 (1999) ).
The central dispute in this appeal arises from two opinions of this Court regarding which labor market should be used when evaluating permanent disability. Relying on Davaz v. Priest River Glass Co., Inc., 125 Idaho 333, 870 P.2d 1292 (1994), Brown contends that the Commission erred as a matter of law by holding that his labor market access must be determined as of the time he reached medical stability in 2005, rather than at the time of the Commission hearing in 2009. ISIF concurs with Brown on this pivotal question of law. Home Depot responds that our recent decision in Stoddard v. Hagadone Corp., 147 Idaho 186, 207 P.3d 162 (2009) governs this issue and that the Commission properly focused on the labor market at the time Brown reached medical stability. We agree with Brown and ISIF and hold that the Commission should consider a claimant's labor market access as of the date of the hearing.
A workers' compensation claimant is permanently disabled when his "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. A permanent disability rating 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 nonmedical factors as provided in section 72–430, Idaho Code." I.C. § 72–425. A claimant may prove total and permanent disability "either by showing that the claimant's permanent impairment together with nonmedical factors totals 100% or by showing that the claimant fits within the definition of an odd-lot worker." Funes v. Aardema Dairy,
150 Idaho 7, 11, 244 P.3d 151, 155 (2010) (citing Christensen v. S.L. Start Assoc., Inc., 147 Idaho 289, 292, 207 P.3d 1020, 1023 (2009) ).
Access to a labor market is central to either method of demonstrating that a claimant is totally and permanently disabled. Among the relevant non-medical factors the Commission must consider in determining a disability rating is "the diminished ability of the afflicted employee to compete in an open labor market within a reasonable geographical area considering all the personal and economic circumstances of the employee...." Id. (quoting I.C. § 72–430(1) ). A claimant's status as an odd-lot worker may be established by showing that: "(1) he or she attempted other types of employment without success; (2) he or she, or vocational counselors or employment agencies on his or her behalf, ... searched for other work and other work [was] not available; or (3) any efforts to find suitable employment would be futile." Magee v. Thompson Creek Mining Co., 142 Idaho 761, 765, 133 P.3d 1226, 1230 (2006) () (quoting Jarvis v. Rexburg Nursing Ctr., 136 Idaho 579, 584, 38 P.3d 617, 622 (2001) ). Thus, the Commission must consider the claimant's...
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