Dumaw v. J.L. Norton Logging, 18129

• Decision Date: 18 July 1990
• Docket Number: No. 18129,18129
• Citation: 118 Idaho 150,795 P.2d 312
• Parties: Barry E. DUMAW, Claimant-Appellant, Cross-Respondent, v. J.L. NORTON LOGGING, Employer, and Associated Loggers Exchange, Surety, Defendants-Respondents, Cross-Appellants.
• Court: Idaho Supreme Court

Page 312

795 P.2d 312

118 Idaho 150

Barry E. DUMAW, Claimant-Appellant, Cross-Respondent, v. J.L. NORTON LOGGING, Employer, and Associated Loggers Exchange, Surety, Defendants-Respondents, Cross-Appellants.

No. 18129.

Supreme Court of Idaho.

July 18, 1990.

John T. Mitchell, Coeur d'Alene, for claimant-appellant, cross-respondent.

Glenna M. Christensen (argued), Moffatt, Thomas, Barrett, Rock & Fields, Boise, for defendants-respondents, cross-appellants.

JOHNSON, Justice.

This is a worker's compensation case. The issues presented and our resolution of them are:

1. Was there substantial competent evidence to support the Industrial Commission's determination that the employee was totally and permanently disabled under the odd-lot doctrine?

We conclude that there was sufficient evidence.

2. Do the facts support the Commission's apportionment of fifty percent of the cause of the disability to a preexisting impairment?

We vacate the Commission's order and remand to the Commission for reconsideration under Archer v. Bonners Ferry Datsun, 117 Idaho 166, 786 P.2d 557 (1990).

3. Was there substantial competent evidence to support the Commission's denial of attorney fees to the employee because of discontinuation of compensation for temporary disability?

We conclude that there was sufficient evidence.

I.

THE BACKGROUND AND PRIOR PROCEEDINGS.

Barry E. Dumaw (the employee) injured his back three times during 1986 while working for J.L. Norton Logging (the employer). The employee worked until February 1987, when the employer interrupted its operations because of spring breakup. When the employer commenced operations again, the employee declined two requests by the employer to return to work. When the employee offered to return to work, he was told he had taken too much time off and had been replaced by another employee.

The employee then sought treatment by a chiropractor, who examined the employee, took x-rays, and referred the employee to an osteopath. The osteopath diagnosed the employee as having chronic lumbosacral sprain with degenerative arthritis of the spine and referred the employee to an orthopedic surgeon for a second opinion. The orthopedic surgeon confirmed the osteopath's diagnosis and noted that the employee had experienced intermittent symptoms for many years and chiropractic treatment in the past.

The employer and its surety had the employee examined by a panel of physicians. The panel reached the same diagnosis as the osteopath and the orthopedic surgeon, but concluded that the accidents only temporarily aggravated the underlying degenerative changes, that the employee had no permanent physical impairment from the accidents, and that the employee was capable of engaging in less vigorous employment. Based on the report of the panel, the employer's surety discontinued temporary disability benefits to the employee.

In January 1988, the employee filed an application for hearing before the Commission. The employee's attorney then had the employee examined by another orthopedic surgeon, who concluded that the employee's preexisting conditions had been aggravated and accelerated by the accidents.

The Industrial Special Indemnity Fund (ISIF) was then joined as an additional party defendant in the proceeding before the Commission. Subsequently, ISIF reached a settlement with the employee as to any liability it might have for the employee's disability and was dismissed from the proceeding.

Following a hearing, a referee who had been assigned by the Commission to hear the case issued findings of fact, conclusions of law, and an order. In the order the referee (1) dismissed the employee's claims as to the first and third accidents, (2) awarded the employee total temporary disability benefits up to the time he was first seen by the second orthopedic physician, (3) determined that the employee suffered from a preexisting impairment in the form of a degenerative disease that was manifest prior to the second accident, (4) determined that the employee was totally and permanently disabled under the odd-lot doctrine, (5) apportioned the total permanent disability equally between the second accident and the preexisting impairment, (6) determined that the employer and its surety were responsible for fifty percent of the employee's disability, and (7) denied the employee attorney fees for the discontinuation of the compensation for temporary total disability. The Commission approved and confirmed the referee's findings, conclusions, and order and adopted them as the decision and order of the Commission.

The employee appealed the decisions concerning apportionment of his disability and the denial of attorney fees. The employer and its surety cross-appealed the determination of total permanent disability under the odd-lot doctrine.

II.

THERE WAS SUBSTANTIAL COMPETENT EVIDENCE TO SUPPORT THE ODD-LOT DETERMINATION.

The employer and its surety assert that there was not substantial competent evidence to support the Commission's determination that the employee was totally and permanently disabled under the odd lot doctrine. We disagree.

The Commission ruled that the employee had sustained his burden of proving that while he was physically able to perform some work, he was so handicapped that he would 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 his part. This is the formulation of "odd-lot" worker in Lyons v. Industrial Special Indemnity Fund, 98 Idaho 403, 406, 565 P.2d 1360, 1363 (1977). In Lyons this Court held that the evidence as a matter of law placed the employee within the odd-lot category. Id. at 407, 565 P.2d at 1364. We explained that "[w]here the evidence is undisputed and is reasonably susceptible to only one interpretation, whether a claimant falls within the odd-lot category is a conclusion of law." Id. at 407 n. 2, 565 P.2d at 1364 n. 2.

Here, there was conflicting evidence as to the employee's employability. The estimates of the portion of the jobs the employee could have performed before the accident that he was precluded from performing after the accident ranged from twenty percent to eighty percent. Therefore, we conclude that the employee was not an odd-lot worker as a matter of law.

Because he was not an odd-lot worker as a matter of law, the employee's burden of proof in attempting to establish a prima facie case of odd-lot status was to prove the unavailability of suitable work. Huerta v. School Dist. No. 431, 116 Idaho 43, 47, 773 P.2d 1130, 1134 (1989). There are three methods by which the employee may prove a prima facie case of odd-lot status: (1) by showing what other types of employment the employee has attempted, (2) by showing that the employee, or vocational counselors, employment agencies, or the Job Service on behalf of the employee, have searched for other work for the employee, and that other work was not available, or (3) any efforts of the employee to find suitable employment would have been futile. Id. at 48-49, 773 P.2d at 1135-36.

Here, the referee and the Commission did not favor us with a finding as to which of these three methods was used to prove a prima facie case of odd-lot status. However, by reviewing the record we are able to eliminate reliance on the first two methods. There was no evidence that the employee attempted other types of employment or that the employee, or any counselor or employment agency on his behalf, searched for other work for him. Therefore, if we are to sustain the conclusion that the employee established a prima facie case as an odd-lot worker, it must be on the basis that any efforts of the employee to find suitable employment would have been futile.

The use of futility as a method of proving a prima facie case of odd-lot status was announced by this Court in Carey v. Clearwater County Road Department, 107 Idaho 109, 686 P.2d 54 (1984). In Carey we said:

Although the commission did find that claimant has not sought employment, other findings of the commission, which are amply supported by the evidence, indicate that the claimant had inquired into work and that his further efforts would have been futile in view of the lack of sedentary work available, claimant's inability to travel, claimant's lack of qualifications for any sedentary work that was available, and claimant's inability to work regularly and steadily due to his unreliable physical condition. We hold that claimant satisfied his burden of showing a prima facie case of being an odd-lot worker.

Id. at 113, 686 P.2d at 58.

As in this case, in Carey the Commission did not make a specific finding that it would have been futile for the employee to have sought other employment.

Here, as in Carey, the findings of the Commission, which are supported by the evidence, indicate that it would have been futile for the employee to have sought other employment, in view of the lack of availability of work the employee could have performed based on his limitations. The Commission's findings of fact included the following:

1. The employee was forty-six years old. He was a lifetime resident of Newport, Washington. He had approximately a ninth grade education and one year of machinist vocational-technical schooling. He had been employed in the woods from the age of fourteen or fifteen, as a heavy equipment operator, as a logging truck operator, and as a logging truck driver and mechanic. He began working for the employer in the fall of 1985 as a logging truck driver and was also responsible for mechanical repairs on the truck.

2. The employee has degenerative disc disease of the dorsal, lumbar, and sacrum, transitional lumbosacral segment and degenerative changes in both hips. These conditions preexisted the accidents that are the subject of this proceeding.

3. All the physicians who examined the employee agreed that he should not return to work...