Carey v. Clearwater County Road Dept., 14690

• Decision Date: 25 June 1984
• Docket Number: No. 14690,14690
• Citation: 686 P.2d 54,107 Idaho 109
• Parties: Schuyler M. CAREY, Claimant-Respondent, Cross-Appellant, v. CLEARWATER COUNTY ROAD DEPARTMENT, Employer; and State Insurance Fund, Surety, Defendants-Respondents, Cross-Respondents, and State of Idaho, Industrial Special Indemnity Fund, Defendant-Appellant, Cross-Respondent.
• Court: Idaho Supreme Court

Page 54

686 P.2d 54

107 Idaho 109

Schuyler M. CAREY, Claimant-Respondent, Cross-Appellant, v. CLEARWATER COUNTY ROAD DEPARTMENT, Employer; and State Insurance Fund, Surety, Defendants-Respondents, Cross-Respondents and State of Idaho, Industrial Special Indemnity Fund, Defendant-Appellant, Cross-Respondent.

No. 14690.

Supreme Court of Idaho.

June 25, 1984.

David R. Risley, of Randall, Bengtson, Cox & Risley, Lewiston, for defendants-respondents, cross-respondents.

Philip E. Dolan, of Dolan & Jacobsen, Coeur d'Alene, for claimant-respondent, cross-appellant.

Karen Lansing, of Hawley, Troxell, Ennis & Hawley, for defendant-appellant, cross-respondent.

SHEPARD, Justice.

This is an appeal from an order of the Industrial Commission holding that claimant was totally and permanently disabled under the "odd-lot" doctrine, see Smith v. Payette County, 105 Idaho 618, 671 P.2d 1081 (1983); Lyons v. Industrial Special Indemnity Fund, 98 Idaho 403, 565 P.2d 1360 (1977), and allocating the amount of benefits to be paid plaintiff by the employer/surety and the Industrial Special Indemnity Fund. We affirm in part, reverse in part, and remand.

Claimant Carey had injured his back in 1968, had a lumbar disc removed, and been off work for a year. Thereafter, although he had had some difficulty with his back and had noted discomfort on occasion, he had had little work difficulty. In November 1977, during the course of his employment with Clearwater County Road Department, and while he was attempting to lift and reset a guardrail post weighing about 200 pounds, claimant felt a ripping, burning sensation in his lower back. He continued to notice discomfort in the area of his low back.

Carey consulted his physician, Dr. Cleto, who diagnosed the problem as low back compressive syndrome and prescribed medications, muscle relaxants, and physical therapy. The pain continued, and Cleto referred claimant to Dr. Thorson, who recommended conservative treatment. Although claimant sustained increasing pain in his back, he was able to continue working until he was laid off on November 30, 1978.

In February 1979, Dr. Thorson performed surgery on claimant to remove a disc at the lumbosacral level. The recovery from surgery was complicated by infections, and claimant felt the surgery did not improve his condition. Another doctor performed nerve block treatments, but those did not relieve the pain. At the time of the commission hearing, claimant was still experiencing constant pain in his back, legs, and groin, which pain impeded his normal activities. He could walk only a short distance and had trouble standing, sitting, or driving for longer than 20 minutes. Dr. Cleto testified claimant would have trouble returning to work, ¹ and Cleto found claimant's impairment to be 50%, one-fifth thereof being attributable to the 1968 injury and four-fifths to the 1977 injury.

In June 1980, claimant was evaluated in Spokane, Washington by a panel of physicians consisting of a neurologist and two orthopedists. That panel found claimant to have an impairment of 50% of the whole man, of which one-fifth was attributable to the 1968 accident and four-fifths to the 1977 accident. It recommended that claimant work where he was not required to do any heavy lifting or to remain in one position for long periods of time. While the panel opined that there was work which claimant could do, it did not identify any specific jobs which he could hold.

Witnesses were presented, on behalf of both the Industrial Special Indemnity Fund and the claimant, as to claimant's ability to obtain and handle light work which would not require lifting and which would allow him to stand or sit at will. It is sufficient to say that such testimony was conflicting as to claimant's physical ability and the availability of work which claimant could perform within claimant's geographical area.

Claimant himself testified as to his prior work history. He stated that after the 1968 injury, but prior to the 1977 injury, he had worked at various jobs, such as weigh clerk, grease monkey and mechanic's helper, and he indicated that his back problem had not bothered him to any considerable extent at that employment.

The commission found that claimant had a permanent physical impairment of 50% of the whole man. It found that 10% of the impairment preexisted the industrial accident and 40% was caused by the industrial accident.

The commission further held that claimant's job prospects were poor, at best, given the lack of sedentary work available in the claimant's geographical area, the claimant's lack of qualifications to do most of the sedentary work that was available, his inability to drive or ride in a car for the time necessary to travel to a larger market area, and his inability to work regularly and steadily due to his unreliable physical condition. These problems would prevent him from keeping a job other than for a sympathetic employer. The commission therefore found that claimant fell into the "odd-lot" category and was totally and permanently disabled.

The fund contends that the commission erred in finding claimant's "odd-lot" status. The fund argues that claimant has not attempted work since being laid off in 1978, despite his physical and vocational abilities for employment. The fund notes that the commission specifically found that claimant had not sought employment.

In Lyons v. Special Indemnity Fund, 98 Idaho 403, 565 P.2d 1360 (1977), this Court recognized the odd-lot doctrine. In Lyons, claimant was a laborer who throughout his life had sustained several injuries, none of which individually constituted a total permanent impairment, but the sum of which he claimed rendered him totally disabled. We noted that the commission, in determining disability, had failed to consider all of Lyons' physical impairments, but instead had looked at only the one leading to the particular claim. In Lyons, we reversed and required an appraisal of claimant's ability to work, in light of the overall and combined effects, medical and non-medical, of his various injuries. We stated:

"[T]he effect of successive injuries may be greater than the sum of the impairments resulting from each. The Commission must therefore evaluate appellant's ability to find employment in the future after considering all of his physical impairments, not just the most recent one.

"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.

"It is not necessary for a person to be physically unable to do anything worthy of compensation to be classified as totally disabled.

'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).

Claimants such as those described in the above quotation from Arnold are often classified as 'odd-lot' workers. See 2 A. Larson, The Law of Workmen's Compensation § 57.51 (1976). While they are physically able to perform some work, they are so handicapped that they will not be employed regularly in any well-known branch of the labor market--absent a business boom, the sympathy of a particular employer or friends, temporary good luck, or a superhuman effort on their part." Lyons, supra, 98 Idaho at 406, 565 P.2d at 1363.

See also Smith v. Payette County, 105 Idaho 618, 671 P.2d 1081 (1983); Gordon v. West, 103 Idaho 100, 645 P.2d 334 (1982); Reifsteck v. Lantern Motel & Cafe, 101 Idaho 699, 619 P.2d 1152 (1980); Francis v. Amalgamated Sugar Co., 98 Idaho 407, 565 P.2d 1364 (1977).

The Special Indemnity Fund asserts first that claimant failed to make the requisite showing that he falls into the odd-lot category, and second that, even assuming such a showing, it was adequately rebutted by the fund and the employer. We disagree.

Odd-lot status is a factual determination within the discretion of the Industrial Commission, Gordon v. West, supra; Reifsteck v. Lantern Motel & Cafe, supra, and here we hold that the commission did not abuse its discretion in placing claimant into the odd-lot category.

In Lyons, supra, 98 Idaho at 406-407, 565 P.2d at 1363-64, the court set forth the burden of proof on the issue of odd-lot status, stating:

"If the evidence of the medical and nonmedical factors places a claimant prima facie in the odd-lot category the burden is then on the employer, the Fund in this case, to show that some kind of suitable work is regularly and continuously available to the claimant ... [Citations omitted.] It is much easier for the Fund to prove the employability of the appellant for a particular job than for appellant to try to prove the universal negative of not being employable at any work.

"It is the opinion of this Court that the evidence as a matter of law places the appellant within the odd-lot category ... Therefore, the Fund must show that some kind of suitable work is...