Gooby v. Lake Shore Management Co.

• Decision Date: 27 June 2001
• Docket Number: No. 26332.,26332.
• Citation: 136 Idaho 79,29 P.3d 390
• Parties: Barbara GOOBY, Claimant-Appellant, v. LAKE SHORE MANAGEMENT CO., Employer, and State Insurance Fund, Surety, Defendants-Respondents.
• Court: Idaho Supreme Court

29 P.3d 390

136 Idaho 79

Barbara GOOBY, Claimant-Appellant, v. LAKE SHORE MANAGEMENT CO., Employer, and State Insurance Fund, Surety, Defendants-Respondents.

No. 26332.

Supreme Court of Idaho, Moscow, April 2001 Term.

June 27, 2001.

Rehearing Denied August 9, 2001.

John T. Mitchell, Coeur d'Alene, for appellant.

Hon. Alan G. Lance, Attorney General, Boise; Jay P. Gaskill, Special Deputy Attorney General, Lewiston, for respondents. Jay P. Gaskill argued.

EISMANN, Justice.

Barbara Gooby (Gooby) appeals from an order of the Industrial Commission holding that she failed to prove that she is totally and permanently disabled. We affirm the findings of the Industrial Commission regarding Gooby's disability rating, we vacate the Commission's denial of attorney fees, and we remand the issue of attorney fees to the Commission.

I. FACTS AND PROCEDURAL HISTORY

In 1988 or 1989, Gooby began working in Sandpoint, Idaho, as a buyer and manager at "The Company Store" owned by Lake Shore Management. Her duties included buying and pricing merchandise; unpacking boxes of merchandise and displaying it in the store; hiring, training, supervising, scheduling, and firing employees; and waiting on customers. On November 21, 1996, Gooby slipped on a patch of ice on the sidewalk at work and fell backwards, striking her head on the concrete sidewalk. She immediately felt sick to her stomach and had a headache, so she went home. The next morning she developed tenderness and stiffness extending from her neck to her tailbone, and the following day she sought medical care. The physician diagnosed her injuries as a concussion and back sprain. Two weeks later she visited her family physician; and he diagnosed her injury as a cervical strain. According to Gooby, over the next two years her pain continued to increase to the point that she was unable to perform her work duties on a regular basis. In addition, she contended that the pain caused other problems including fecal incontinence, depression, anxiety, insomnia, and inability to concentrate. She testified that she went into work only on the days that the pain was not too intense, which eventually became one to two days a week. Gooby's employment terminated on April 1, 1999, when her employer went out of business. She has not worked since. Dr. Coffin, Gooby's primary treating physician, also testified that Gooby's extremely large breasts put great pressure on her shoulders and neck and that breast reduction surgery could eliminate or significantly reduce her pain.

Gooby filed a worker's compensation complaint which was heard on August 6, 1999. After the hearing, the referee issued findings of fact and conclusions of law, which were adopted by the Commission. The findings included that Gooby was medically stable as of July 29, 1998; that she suffered a permanent partial disability of 10% of the whole person, and that she had failed to prove that she was totally and permanently disabled under the odd-lot doctrine.

Gooby filed a motion for reconsideration asking the Commission to reconsider the finding that Gooby had failed to prove a prima facie case under the odd-lot doctrine by proving a failed work attempt. The Commission denied the motion for reconsideration, and Gooby appealed.

II. STANDARD OF REVIEW

When this Court reviews a decision of the Industrial Commission, it exercises free review over questions of law, but reviews questions of fact only to determine whether substantial and competent evidence supports the Commission's findings. Rivas v. K.C. Logging, 134 Idaho 603, 7 P.3d 212 (2000). Substantial and competent evidence is relevant evidence that a reasonable mind might accept to support a conclusion. Id. Because the Commission is the fact finder, its conclusions on the credibility and weight of the evidence will not be disturbed on appeal unless they are clearly erroneous. Id. This Court does not weigh the evidence or consider whether it would have reached a different conclusion from the evidence presented. Id. Whether a claimant has an impairment and the degree of permanent disability resulting from an industrial injury are questions of fact. Id.

III. ISSUES ON APPEAL

A. Did the Industrial Commission err in failing to specifically address whether the claimant had proven a failed work attempt under the odd-lot doctrine?

B. Are the Industrial Commission's findings of fact supported by substantial and competent evidence?

C. Was the claimant entitled to an award of attorney fees?

IV. ANALYSIS

A. Did the Industrial Commission err in failing to specifically address whether the claimant had proven a failed work attempt under the odd-lot doctrine?

The Industrial Commission adopted the referee's findings of fact and conclusions of law and found that Gooby had failed to prove that she was totally and permanently disabled under the odd-lot doctrine. Gooby then filed a motion for reconsideration, contending that the Commission had failed to address whether Gooby had proven a failed work attempt as a means of establishing a prima facie case of total and permanent disability under the odd-lot doctrine. The Commission denied the motion for reconsideration without specifically addressing the issue of failed work attempt.

Claimants may prove that they are totally and permanently disabled by demonstrating that they fit within the definition of an odd-lot worker. Lyons v. Industrial Special Indem. Fund, 98 Idaho 403, 565 P.2d 1360 (1977). The odd-lot category is for those workers who are so injured that they can perform no services other than those that are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist. Id. Such workers need not be physically unable to perform any work at all. Id. They are simply 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. Id. 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 or surety to show that some kind of suitable work is regularly and continuously available to the claimant. Id.

A prima facie case for odd-lot status is made when a claimant shows: (1) that he or she had attempted other types of employment without success; or (2) that he or she, or vocational counselors or employment agencies on his or her behalf, have searched for other work and other work is not available; or (3) that any efforts to find suitable employment would be futile. Dehlbom v. Industrial Special Indem. Fund, 129 Idaho 579, 930 P.2d 1021 (1997).

In her post-hearing brief, Gooby claimed that the evidence established a prima facie case for odd-lot status under alternatives (1) and (3). The referee found that Gooby had failed to prove that any efforts to find suitable employment would be futile but the referee did not address whether Gooby had shown a failed work attempt. After the Industrial Commission adopted the referee's findings of fact and conclusions of law and issued its order that Gooby was not totally and permanently disabled, she filed a motion for reconsideration in which she argued that the referee had erred by failing to address the issue of failed work attempt. When denying the motion for reconsideration, the Commission likewise did not specifically address this issue. Gooby contends that the Commission's failure to do so constitutes error. Although the Commission refused to specifically address the issue of whether Gooby had established a failed work attempt, there is no basis for vacating the Commission's order because Gooby did not offer any evidence showing a failed work attempt.

Gooby argued that she had shown a failed work attempt because she was unable to perform the same job she was doing at the time of her injury. In her post-hearing brief, Gooby argued as follows:

Barbara Gooby contends that her sporadic employment in 1998 and 1999 constitute a prima facie case of odd-lot status by the first method [showing what other types of employment she has attempted]. She does not argue that she or others searched for employment, although she did follow up with an employment application at Coldwater Creek at Tom Moreland' [sic] request.¹

In the brief supporting her motion for reconsideration, Gooby made the same argument. First, the referee ignored the fact that claimant Barbara Gooby proved her prima facie case of odd lot disability by the first method under Huerta v. School Dist. No. 431, 116 Idaho 43, 48-49, 773 P.2d 1130, 1135-36 (1989), a failed work attempt. Barbara Gooby proved that ever since the industrial accident she has missed progressively more days at work as a result of the injuries she sustained from that accident, culminating in the last year only working one or two days per week. This is a failed work attempt.

A claimant cannot establish a failed work attempt merely by showing that he or she is unable to perform his or her previous type of employment.

In Gordon v. West, 103 Idaho 100, 645 P.2d 334 (1982), the claimant, a 57-year-old truck driver, was injured in an industrial accident. He testified that as a result, he had continuing pain in his neck, left shoulder, and between his shoulder blades, he could not lift heavy objects above his waist, and his arms became numb while driving. The Industrial Commission found that the claimant's disability rating amounted to 15% of the whole man, and the claimant appealed, contending that he had established a prima facie case under the odd-lot doctrine by his testimony that he had attempted to work as a truck driver several times after the accident, but his neck pain and the numbness in his arms kept him from doing so. In holding that such evidence was not sufficient to prove a prima facie case under the odd-lot doctrine, this Court stated as follows:

A claimant must do more than assert that he

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