Eckhart v. STATE, INDUS. SPECIAL INDEM. FUND

• Decision Date: 12 August 1999
• Docket Number: No. 24328.,24328.
• Citation: 985 P.2d 685,133 Idaho 260
• Parties: Ronnie Dean ECKHART, Claimant-Appellant, v. STATE of Idaho, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendant-Respondent.
• Court: Idaho Supreme Court

985 P.2d 685

133 Idaho 260

Ronnie Dean ECKHART, Claimant-Appellant, v. STATE of Idaho, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendant-Respondent.

No. 24328.

Supreme Court of Idaho, Boise, February 1999 Term.

August 12, 1999.

Gilman & Latta, Boise, for appellant. Garry L. Gilman argued.

Hon. Alan G. Lance, Attorney General; James J. Davis, Deputy Attorney General, Boise, for respondent. James J. Davis argued.

WALTERS, Justice.

This is an appeal from a decision of the Industrial Commission denying apportionment of benefits from the Industrial Special Indemnity Fund (ISIF), after the Commission found the claimant, Ronnie Dean Eckhart, totally and permanently disabled under the odd-lot doctrine on account of his work-related injury to his back. We affirm.

I. BACKGROUND

On July 30, 1990, in the employ of Western Dairymen's Association, Eckhart fell down some stairs and injured his lower back. At the time of the accident, Eckhart was fortyfive years old and had worked for Dairymen's thirteen years, most recently as a long-haul driver through southern Idaho and northern Utah. Eckhart initially received chiropractic care and was released to return to work in September 1990. His back pain continued and, during the year following the injury, Eckhart also experienced right lowerextremity weakness, low-back pain radiating down his posterior right thigh, and had difficulty both in walking and in sleeping.

Eckhart underwent surgery on August 13, 1991, for fusion of L4-5 disc levels to provide relief from the pain in his back and radiating into his leg. He pursued a course of physical therapy after the surgery, which did not significantly upgrade his capacity for full-time activity. One year after his surgery, Eckhart's surgeon, Floyd Johnson, M.D., released Eckhart to work, with lifting and carrying restrictions and only occasional bending and twisting. Doctor Johnson rated Eckhart with a 25% impairment of the whole person for the persistent symptoms related to the fusion and aggravation, with bending and twisting.

Eckhart filed a worker's compensation complaint against his employer and his employer's surety for the 1990 injury, and submitted an application for hearing with the Industrial Commission. Eckhart settled his claim with his employer, Western Dairymen's Association, and proceeded to a hearing, which took place June 12, 1996, seeking to recover from the Industrial Special Indemnity Fund. Eckhart asserted a claim of total, permanent disability which he attributed to the combination of pre-existing impairments, the work-related impairment and non-medical factors, together with his prior work history, lack of education and transferable job skills.

The evidence presented at the hearing on his claim showed that Eckhart suffered from chronic back pain, fatigue due to sleeplessness, depression, and hypertension. Eckhart also suffered from pre-existing impairments of his left eye, that had been injured when he was a boy, and problems due to lacerations and tendon damage to his right arm stemming from an accident in 1988 at his home. The referee adopted Doctor Johnson's whole man impairment rating of 25%. The referee found that Eckhart was limited to lifting no more than ten pounds and to only infrequent twisting or bending, and that it was important for him to alternate sitting and standing and working at his own pace. There was medical evidence of a high blood-pressure condition and reports of dizziness, nausea and ongoing fatigue and poor sleep, for which Eckhart was referred to a psychologist. Eckhart was also diagnosed with chronic pain syndrome, fibromyalgia and a sleep disorder associated with fibromyalgia. According to the medical evidence and the testimony of the vocational experts, the referee found that pain and fatigue were Eckhart's worst problems that prevented him from working full-time. The referee also found that Eckhart has monocular vision due to his left eye injury, which does not affect his ability to sit, walk, or lift, and which has not led to any driving restrictions. The referee acknowledged that Eckhart had been given a 6% whole man impairment regarding his right arm, but that his treating physician, Doctor Bottimer, had imposed no restrictions despite the impact of the lacerations to his right dominant hand's flexibility and strength. The referee determined that Eckhart's hand and forearm injury restricted his ability to engage in some work activities that involved finger and hand flexibility and strength.

The referee made additional findings that Eckhart's physical limitations preclude him from returning to his prior relevant work and a substantial portion of the unskilled labor market. Further, the referee noted that Eckhart was fifty-one years old at the time of the hearing, with a good work history and a proven ability to supervise others; but he does not have a high school diploma or GED certificate and obtained poor grades in school; that he is essentially limited to unskilled work and possessed below-average aptitudes; that he cannot sustain work activities on a full-time basis due to his chronic pain, sleeplessness and fatigue; and that he becomes irritable and prefers to be alone.

Based on these findings, the referee considered whether Eckhart was totally and permanently disabled under the odd-lot doctrine. The referee found that Eckhart had met a prima facie case of odd-lot status by the third method available to prove odd-lot status, futility, and that this prima facie showing was not successfully rebutted with proof from the ISIF that there was an actual job that Eckhart was capable of performing and for which he had a reasonable opportunity of being hired. The referee, therefore, concluded that Eckhart was totally and permanently disabled under the odd-lot doctrine:

[A]s a result of his low-back injury at Dairymen's, Claimant is impaired to the extent that his ability to perform services is so limited in quality, quantity, or dependability that no reasonable market for his services exists.

The referee next applied an apportionment analysis to determine whether the ISIF could be held liable for payment of benefits pursuant to Idaho Code § 72-332. After examining the four elements of a prima facie case for apportioning liability for total permanent disability under I.C. § 72-332(1), as set forth in Garcia v. J.R. Simplot Co., 115 Idaho 966, 968, 772 P.2d 173, 175 (1989), the referee concluded that Eckhart's pre-existing right arm and left eye injuries did not combine with the effects of his low-back injury to render him totally and permanently disabled. Thus, the referee determined that benefits were not apportionable and denied Eckhart's claim for recovery of benefits from the ISIF.

The Commission adopted the referee's findings of fact, conclusions of law and proposed decision, and on October 20, 1997, issued an order holding Eckhart totally and permanently disabled by the effects alone of his July 1990 low-back injury, denying Eckhart any entitlement to benefits from the ISIF pursuant to I.C. § 72-332, and dismissing his claim. Eckhart appeals, contesting the Commission's finding that his pre-existing permanent impairments of his left eye and right arm did not combine with his low-back worker's compensation injury to hold the ISIF liable for a portion of the disability benefits.

II. STANDARD OF REVIEW

The Supreme Court's appellate review of Industrial Commission decisions is limited to a determination of whether the findings of fact are supported by substantial and competent evidence. Boise Orthopedic Clinic v. Idaho State Ins. Fund, 128 Idaho 161, 911 P.2d 754 (1996). In reviewing a decision of the Commission, the Court will not distrub the Commission's conclusions on the weight and credibility of the evidence unless they are clearly erroneous. Boley v. State, Industrial Special Indemnity Fund, 130 Idaho 278, 939 P.2d 854 (1997). Thereafter, we limit our review to determining whether the Commission correctly denied benefits after it applied the law to the relevant facts. I.C. § 72-732(4); Morgan...