Dehlbom v. State, Indus. Special Indem. Fund
| Decision Date | 22 January 1997 |
| Docket Number | No. 22567,22567 |
| Citation | 930 P.2d 1021,129 Idaho 579 |
| Parties | Wayne C. DEHLBOM, Claimant-Appellant, v. STATE of Idaho, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendant-Respondent. Coeur d'Alene, October 1996 Term |
| Court | Idaho Supreme Court |
Elsaesser, Jarzabek & Andersen, Chartered, Sandpoint, for claimant-appellant. Joseph Jarzabek argued.
Alan G. Lance, Attorney General; Carol B. Groover, Deputy Attorney General, Post Falls, for defendant-respondent. Carol B. Groover argued.
This worker's compensation appeal arises from an order of the Industrial Commission (Commission) finding that claimant Wayne Dehlbom is not totally permanently disabled and that, even if Dehlbom were totally and permanently disabled, the Industrial Special Indemnity Fund would not be liable.
In 1989, claimant Wayne Dehlbom began work as a welder for Fausett International (Fausett). At that time, Dehlbom was fifty-four years old, held a two-year machinist's degree, and had worked as a welder since 1960 for various employers. In March of 1990, at the age of fifty-five, Dehlbom suffered an industrial injury to his right knee. Two months later, surgery was performed on his knee, and he returned to work. In 1991, his knee symptoms returned, and knee surgery was again performed. After physical therapy, he returned to work in early 1992 as a welder at Fausett. At that time, Dehlbom's physician rated his permanent impairment due to his knee injury at 5% of his lower extremities and 2% of his whole body. In the spring of 1992, Fausett laid off Dehlbom as a result of lack of work. Dehlbom has not worked since the lay off.
Prior to 1990, Dehlbom had experienced some hearing loss. In 1959, a doctor characterized it as "some perceptive high tone deafness bilaterally." In 1994, Dehlbom's physician rated his hearing loss at 18% impairment of the whole body.
In May of 1993, Dehlbom filed a complaint with the Industrial Commission against Fausett and the Idaho State Insurance Fund seeking a determination of his worker's compensation benefits. In July of 1993, Dehlbom filed a complaint against the Industrial Special Indemnity Fund (ISIF), alleging that he was permanently totally disabled as a result of his preexisting hearing loss in combination with the industrial knee injury which he suffered while working at Fausett. Dehlbom later settled his claims against Fausett and the Idaho State Insurance Fund.
A Commission referee conducted a hearing on November 14, 1994. At the hearing, Dehlbom offered the testimony of Maxine Boston, a vocational rehabilitation counselor. The ISIF objected because Dehlbom had failed to disclose her as a witness pursuant to Rule X of the Commission's Rules of Practice and Procedure. The referee refused to allow Boston's testimony into evidence or to permit a post-hearing deposition. The referee then submitted to the Commission Findings of Fact, Conclusions of Law, and Proposed Order, which the Commission subsequently adopted in full. The Commission ruled that: (1) Dehlbom is not totally and permanently disabled, and (2) even if Dehlbom were totally and permanently disabled, the ISIF is not liable. Dehlbom appeals, arguing that Maxine Boston's testimony was wrongfully excluded, that he is totally and permanently disabled, and that the ISIF is liable.
The referee's decision regarding the testimony of Maxine Boston is not a final appealable order under I.A.R. 11. Thus, we cannot review this decision. Idaho Code § 72-718 provides that final decisions of the Industrial Commission are appealable to this Court pursuant to I.C. § 72-724. Section 72-724, in turn, authorizes appeals to this Court as prescribed by the rules of the Court. Idaho Appellate Rule 11(d) grants an appeal as of right to this Court from "any final decision or order of the Industrial Commission."
We have held that interlocutory orders of a Commission referee that are not approved or adopted by the full Commission do not fall within the definition of a "final decision or order" of the Commission. Peterson v. Farmore Pump & Irrigation, 119 Idaho 969, 969, 812 P.2d 276, 276 (1991). See also Wheaton v. Industrial Special Indem. Fund, 96.25 ISCR 1150 (Dec. 16, 1996). In Peterson, a Commission referee in a worker's compensation case denied some of the claimant's discovery requests. The claimant appealed to this Court the denial of these requests. The Court first noted that I.C. § 72-506 provides that findings, orders, and decisions made by a referee become final orders and decisions of the Commission when "approved and confirmed" by the Commission. Peterson, 119 Idaho at 970, 812 P.2d at 277. There, the Commission had not approved or confirmed the referee's ruling on the discovery requests; it had simply adopted the findings, conclusions, and proposed order of the referee, which did not include any mention of those requests:
[T]he referee's order denying [claimant's] motion to compel discovery was not specifically approved and confirmed by the Commission. In fact, the record before this Court does not disclose that the Commission was ever asked to consider the motion or the referee's ruling on it. The denial of the motion was not referred to in the referee's findings of fact, conclusions of law, and order that was approved, confirmed, and adopted by the Commission.
Id. at 970-71, 812 P.2d at 277-78. The referee's order thus did not fall within the definition of a final appealable order under I.A.R. 11. Id. at 971, 812 P.2d at 278. In contrast, this Court in a similar case found that the Commission had adopted a specific decision of a referee when the findings, conclusions, and proposed order particularly noted a party's motion and the referee's ruling on it. Cantu v. J.R. Simplot Co., 121 Idaho 585, 587-88, 826 P.2d 1297, 1299-1300 (1992) (preface of the findings, conclusions, and proposed order stated: "The Referee granted In the instant case, however, the Commission did not adopt, approve, or confirm the referee's ruling on the admissibility of Boston's testimony. The Findings of Fact, Conclusions of Law, and Proposed Order contains no reference to the referee's decision regarding Boston's testimony, nor does the record indicate that Dehlbom sought, at any time, to bring this ruling to the Commission's attention, either by filing a motion to reconsider or by arguing the issue in a post-hearing briefing. In this case, then, the Commission did not specifically approve or adopt the referee's ruling, and it is not a final appealable order pursuant to I.A.R. 11(d). We thus decline to address this issue.
Defendant's motion to have Claimant examined by a psychiatrist and have that psychiatrist deposed post-hearing"). In that case, the Commission had clearly been apprised of the motion and the referee's subsequent ruling.
The determination of whether a worker's compensation claimant is totally and permanently disabled is a question of fact. Sund v. Gambrel, 127 Idaho 3, 5, 896 P.2d 329, 331 (1995) (citing Thom v. Callahan, 97 Idaho 151, 155, 540 P.2d 1330, 1334 (1975)). This Court will uphold such factual determinations if supported by substantial and competent evidence in the record. Id., 127 Idaho at 5, 896 P.2d at 331. We have defined substantial and competent evidence as evidence that a reasonable mind might accept as adequate to support a conclusion. ASARCO, Inc. v. Industrial Special Indem. Fund, 127 Idaho 928, 931, 908 P.2d 1235, 1238 (1996) (citing Reiher v. American Fine Foods, 126 Idaho 58, 60, 878 P.2d 757, 759 (1994)).
Idaho law provides that a "permanent disability" occurs "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. A "permanent impairment" is "any anatomic or functional abnormality or loss after maximal medical rehabilitation has been achieved." Id. § 72-422. A permanent impairment is a "basic consideration" in the evaluation of permanent disability. Id. In determinations of permanent disability, both the medical factor of a permanent impairment and nonmedical factors, including the claimant's occupation, age at the time of accident, and ability to compete in an open labor market in the geographical area, are considered. Id. §§ 72-425, -430(1).
One method of establishing total and permanent disability is for the claimant to demonstrate that he fits within the definition of an odd-lot worker. Bybee v. Industrial Special Indem. Fund, 129 Idaho 76, 81, 921 P.2d 1200, 1205 (1996). An odd-lot worker is one "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." Id., 129 Idaho at 81, 921 P.2d at 1205 (quoting Arnold v. Splendid Bakery, 88 Idaho 455, 463, 401 P.2d 271, 276 (1965)). Such workers are not regularly employable "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." Carey v. Clearwater County Road Dep't, 107 Idaho 109, 112, 686 P.2d 54, 57 (1984) (quoting Lyons v. Industrial Special Indem. Fund, 98 Idaho 403, 406, 565 P.2d 1360, 1363 (1977)). The burden of establishing odd-lot status lies with the claimant. Dumaw v. J.L. Norton Logging, 118 Idaho 150, 153, 795 P.2d 312, 315 (1990) (citing Huerta v. School Dist. No. 431, 116 Idaho 43, 47, 773 P.2d 1130, 1134 (1989)); Rost v. J.R. Simplot Co., 106 Idaho 444, 445, 680 P.2d 866, 867 (1984).
The three methods of proving odd-lot status are by demonstrating:
1. what other types of employment the employee has attempted,
2. that the employee, or vocational counselors, employment agencies, or the Job Service on behalf of the employee, have searched for other...
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