Bybee v. State, Indus. Special Indem. Fund

• Court: Idaho Supreme Court
• Writing for the Court: TROUT; McDEVITT, C.J., and JOHNSON; SILAK; SCHROEDER
• Citation: Bybee v. State, Indus. Special Indem. Fund, 921 P.2d 1200, 129 Idaho 76 (Idaho 1996)
• Decision Date: 25 July 1996
• Docket Number: No. 21757,21757
• Parties: Lola BYBEE, Claimant-Appellant, v. STATE of Idaho, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendant-Respondent.

Page 1200

921 P.2d 1200

129 Idaho 76

Lola BYBEE, Claimant-Appellant, v. STATE of Idaho, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendant-Respondent.

No. 21757.

Supreme Court of Idaho.

July 25, 1996.

Goicoechea Law Offices, Boise, for appellant. Lynn M. Luker, argued.

Mallea & Scrivner, Boise, for respondent. Wesley L. Scrivner, argued.

TROUT, Justice.

This is a workers' compensation case dealing with the liability of the Industrial Special Indemnity Fund (ISIF).

I. BACKGROUND

In March of 1991, the claimant, Lola Bybee, began to work for the Idaho Department of Parks and Recreation as caretaker at the Massacre Rocks Park in Power County. Within six months, she suffered two industrial injuries. On July 20, 1991, she injured her elbow, and on September 4, 1991, she injured her knee. Following the knee injury, she was unable to continue working. At the time these injuries occurred, Bybee was 67 years old. She did not graduate from high school and has limited work experience and no transferable skills. Further, she has an extensive history of pre-existing medical conditions and has sustained previous industrial injuries.

In January 1979, while working for Lamb-Weston, Inc., Bybee injured her lower back. In 1981, she had spinal surgery which resulted in cervical fusion at the C4-5 and C5-6 levels. She was also diagnosed as having degenerative arthritis in her spine. In April 1982, while still employed by Lamb-Weston, Bybee injured her neck. In 1984, she filed workers' compensation claims for the 1979 and 1982 injuries against Lamb-Weston and the ISIF, alleging that she was totally and permanently disabled. In resolving these claims, the Industrial Commission (Commission) determined that Bybee was not totally and permanently disabled, but had incurred a permanent partial disability of thirty percent of the whole person.

Following 1984, Bybee had several jobs, including work at a nursing home and at a printing company. In February 1989, she had surgery on her neck and experienced a spontaneous fusion at the C3-4 level. Finally, Bybee has a binaural hearing loss which pre-dated her 1991 injuries. As of September 1991, the extent of impairment resulting from the hearing loss was rated at approximately sixteen percent of the whole person. Bybee testified this problem was so severe prior to the time she began working for the Department of Parks, that she had great difficulty even using the telephone.

II. PROCEDURAL HISTORY

On May 11, 1994, Bybee filed a workers' compensation complaint against both the Department of Parks and the ISIF relating to the July and September 1991 injuries to her elbow and knee. She contends that pre-existing conditions combined with the subsequent injuries to render her totally and permanently disabled. She reached a settlement with her employer and its surety, the State Insurance Fund, and the only question presented is the liability of the ISIF.

A hearing was held before a referee who made findings of fact, conclusions of law, and submitted a proposed order for adoption by the Commission. The parties stipulated that Bybee is totally and permanently disabled. The referee, however, found that this disability pre-dated the 1991 industrial injuries. Therefore, applying the "but for" test articulated in Garcia v. J.R. Simplot, 115 Idaho 966, 772 P.2d 173 (1989), he concluded that the pre-existing conditions did not combine with the injuries to give rise to the total permanent disability, and that the ISIF is therefore not liable for the amount of disability arising from the pre-existing conditions. The Commission adopted the referee's findings of fact, conclusions of law, and proposed order and dismissed Bybee's claim.

III. DISCUSSION

Bybee seeks to recover workers' compensation benefits from the ISIF. Therefore, she must establish that the requirements of I.C. § 72-332(1) have been met. Section 72-332(1) provides If an employee who has a permanent physical impairment from any cause or origin, incurs subsequent disability by an injury or occupational disease arising out of and in the course of his employment, and by reason of the combined effects of both the pre-existing impairment and the subsequent injury or occupational disease or by reason of the aggravation and acceleration of the pre-existing impairment suffers total and permanent disability, the employer and surety shall be liable for payment of compensation benefits only for the disability caused by the injury or occupational disease, including scheduled and unscheduled permanent disabilities, and the injured employee shall be compensated for the remainder of his income benefits out of the industrial special indemnity account.

We have held that this provision requires a claimant seeking to obtain contribution from the ISIF to establish: (1) that there was a pre-existing impairment; (2) that the impairment was manifest; (3) that the impairment was a subjective hindrance; and (4) that the pre-existing impairment and the subsequent injury in some way combine to result in total permanent disability. E.g., Dumaw v. J.L. Norton Logging, 118 Idaho 150, 155, 795 P.2d 312, 317 (1990) (citations omitted).

In this case, the only element at issue in establishing ISIF liability is whether the pre-existing impairments and the work-related injuries combined to render Bybee totally permanently disabled. The Commission applied the odd-lot doctrine to conclude that Bybee was totally and permanently disabled prior to the occurrence of the industrial injuries in question. Therefore, the total disability did not result from the combined effects of the pre-existing conditions and subsequent injuries; it was solely the result of the pre-existing conditions. On appeal, Bybee contends that the Commission erred in several respects.

A. Application Of Garcia v. J.R. Simplot Co.

Bybee first contends that the Commission erred in its application of the "but for" test articulated in Garcia v. J.R. Simplot Co., 115 Idaho 966, 772 P.2d 173 (1989). In Garcia, the ISIF asserted that the claimant's subsequent industrial injury would have rendered her totally disabled by itself. Therefore, the injury did not combine with the pre-existing impairment to result in the total disability as required by I.C. § 72-332(1). Id. at 970, 772 P.2d at 177. On appeal, we held that to satisfy the "combined effects" requirement in § 72-332(1), a claimant must show that but for the pre-existing impairments, she would not have been totally permanently disabled. Id. See also Selzler v. Industrial Special Indem. Fund, 124 Idaho 144, 857 P.2d 623 (1993).

In the present case, the Commission recognized that this situation is different from Garcia in that it is undisputed that Bybee's subsequent industrial injuries would not have resulted in total disability by themselves. Rather, the ISIF contends that the pre-existing impairment alone resulted in her total disability. However, the Commission agreed with ISIF's assertion that the "but for" test must "work both ways." It concluded that in light of the "combined effects" requirement in § 72-332(1), a claimant seeking to establish ISIF liability must also prove that the disability would not have been total but for the industrial injury. Bybee appears to contend that this formulation of the Garcia rule is fatally flawed because it does not account for a case where an industrial injury accelerates pre-existing impairments. According to Bybee, in such a case, it cannot be said that total disability would not have occurred but for the industrial injury since it would have eventually resulted from the pre-existing impairment alone.

Bybee's contentions are misguided. The Commission did not base its determination on any finding that Bybee would eventually become totally permanently disabled by operation of the pre-existing impairments, but on the finding that she was, at the time of the injuries, already an odd-lot worker. Moreover, given the requirement in § 72-332(1) that the pre-existing impairment and subsequent injury combine to result in total disability, it is implicit in the Garcia test that the relevant point in time is the point at which the injury occurs. Stated more specifically, the test is whether, but for the industrial injury, the worker would have been totally and permanently disabled immediately following the occurrence of that injury. This statement of the rule encompasses both the combination scenario where each element contributes to the total disability, and the case where the subsequent injury accelerates and aggravates the pre-existing impairment. For these reasons, we conclude that the Commission did not err in its application of Garcia in this case.

B. Applicability Of The Odd-Lot Doctrine

We have long held that the term "total disability" as used in the worker's compensation statutes is not to be interpreted literally:

[B]y total disability [it] is not meant that the injured person must be absolutely helpless or entirely unable to do anything worthy of compensation. An employee who is so injured that he can perform no services other than those which are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist may well be classified as totally disabled.

Arnold v. Splendid Bakery, 88 Idaho 455, 463, 401 P.2d 271, 276 (1965) (citing Crawford v. Nielson, 78 Idaho 526, 307 P.2d 229 (1957); Endicott v. Potlatch Forests, 69 Idaho 450, 208 P.2d 803 (1949)). This expanded definition of the term "total disability" is referred to as the odd-lot doctrine. See Lyons v. Industrial Special Indem. Fund, 98 Idaho 403, 406, 565 P.2d 1360, 1363 (1977). Bybee contends that the Commission erred in applying this doctrine to conclude that she was totally permanently disabled prior to the 1991 industrial injuries since according to her, the doctrine cannot be asserted by the ISIF as a defense.

In utilizing specific terms in a statute, it must be presumed, unless indicated otherwise,...