Gugelman v. Pressure Treated Timber Co.

• Decision Date: 12 June 1981
• Docket Number: No. 13358,13358
• Citation: 630 P.2d 148,102 Idaho 356
• Parties: Lawrence GUGELMAN, Claimant-Respondent, v. PRESSURE TREATED TIMBER CO., Employer, and Industrial Indemnity Company, Surety, Defendants-Appellants, and State of Idaho, Industrial Special Indemnity Fund, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 148

630 P.2d 148

102 Idaho 356

Lawrence GUGELMAN, Claimant-Respondent, v. PRESSURE TREATED TIMBER CO., Employer, and Industrial Indemnity Company, Surety, Defendants-Appellants and State of Idaho, Industrial Special Indemnity Fund, Defendant-Respondent.

No. 13358.

Supreme Court of Idaho.

June 12, 1981.

Joseph D. McCollum and Karen L. Lansing of Hawley, Troxell, Ennis & Hawley, Boise, for defendants-appellants.

Peter J. Boyd of Elam, Burke, Jeppesen, Evans & Boyd, Boise, for claimant-respondent.

Max M. Sheils, Jr. of Ellis, Brown & Sheils, Boise, for defendant-respondent.

BISTLINE, Justice.

The employer, Pressure Treated Timber Co., and its surety, Industrial Indemnity Co., appeal a decision by the Industrial Commission that the respondent Industrial Special Indemnity Fund (I.S.I.F.) is not liable for any part of claimant Gugelman's disability compensation. Claimant takes no part in this appeal as his total disability is not questioned.

On October 2, 1975, claimant was unloading poles from a truck in the course of his employment when he was hit in the chest by a pole and fell 8 to 10 feet to the ground. He suffered low back pain and face lacerations. Although claimant returned to work, the pain in his back grew progressively worse and he began having blackouts until he was forced to quit his employment on October 19, 1977. He has not been employed since that time. That he became and now is totally disabled is not contested.

The major controversy in this case is whether claimant's injuries prior to the October 2, 1975, accident constituted a pre-existing "permanent physical impairment" under I.C. § 72-332(2) such that the I.S.I.F. is liable for a portion of the disability compensation payments. Claimant's first injury occurred in September 1961. At that time claimant was engaged in heavy farm labor and a tractor fell on him, causing a serve fracture of his pelvis and right femur. He was hospitalized for seven months, returning to work several months thereafter as a truck driver.

Claimant worked as a truck driver hauling flour from approximately 1962 until 1970. This job entailed loading and unloading sacks of flour weighing up to 100 pounds, and claimant testified that he had no difficulty performing these duties.

From 1970 to 1973, claimant owned and drove one truck in Montana. Claimant returned to Idaho in 1973, again working as a truck driver. He had to load and unload lumber, steel axles, toilets and ranges in connection with this job. In July 1974, while working on a truck, claimant was struck in the right hip when the transmission slipped. He was hospitalized for fourteen days, had a complete hip replacement, and spent two to three months convalescing.

Claimant was then employed by appellant Pressure Treated Timber Co. as a truck driver. His duties entailed hauling utility poles or fencing materials to and from Colorado, Oregon and California. Claimant testified that he still experienced no pain in his back or hip and that he had no difficulty working. He also testified that he did not require the services of a physician except as a follow-up to his former hip surgery. The October 2, 1975, accident occurred while claimant was working for Pressure Treated Timber Co.

In spite of claimant's testimony that he had suffered no back pain prior to 1975, claimant's physician, Dr. Wolff, testified that claimant had come to him prior to 1975 complaining of low back pain. Pursuant to a request by the insurance company, a medical panel was formed to examine claimant in connection with this case. The testimony of the members of the panel indicated that, due to the pre-1975 injuries, claimant walked with a slight limp; had residual contraction of his hip muscles; suffered mild degenerative mid-lumbar arthritis; had no motion between the pelvis and the fourth lumbar vertebrae due to a fusion; and had a fusion of his sacroiliac joints and his symphysis pupis. The panel felt that 10% of claimant's impairment was due to the 1975 accident, with 90% being due to his pre-existing condition. The panel felt that claimant should not have been doing heavy labor, that it was only a matter of time before problems would have arisen because of his pre-existing condition, and that it was unquestionable that the 1975 accident aggravated the pre-existing condition. The panel described the pre-existing condition as "the permanent partial impairment that most certainly existed prior to this injury."

Dr. Wolff, although he initially agreed with the panel's apportionment, subsequently fixed claimant's condition as 50% due to the 1975 accident and 50% attributable to the pre-existing condition. He based his second apportionment on the fact that claimant was doing hard physical labor before 1975. Dr. Wolff also testified that the pre-1975 injuries would eventually have led to total incapacity regardless of the 1975 accident.

The Commission found that 50% of claimant's current disability was attributable to the October 2, 1975, accident, with 50% being attributable "to a preexisting condition which did not constitute, subjectively, a hindrance or obstacle to Claimant's employment prior to October 2, 1975." The Commission stated that its decision that the pre-existing condition was not a hindrance or obstacle to employment was based solely on claimant's testimony. In so holding, the Commission stated that "(i)t has always been the position of the Industrial Commission that the test to be applied to determine whether or not a pre-existing condition constituted a hindrance or obstacle to employment was a subjective one, i. e., whether or not the pre-existing condition constituted a hindrance or obstacle to employment for the particular injured worker involved." The Commission then held that the I.S.I.F. was not liable for any part of claimant's total disability payments.

The first issue presented is whether a claimant's pre-existing condition must have actually hindered his efforts to obtain employment in the past in order to constitute a pre-existing "permanent physical impairment." I.C. § 72-332(2), as worded at the time claimant's claim was before the Commission, provided:

"As used in this law, 'permanent physical impairment' means any permanent condition, whether congenital or due to the injury or disease, of such seriousness as to constitute a hindrance or obstacle to obtaining employment or to obtaining reemployment if the employee should become unemployed."

On appeal the parties advise us that the entire section was amended in 1978. ¹ Subsection (2) was deleted. The section as amended contained only this language:

"If an employee who has a permanent physical impairment from any cause or origin, incurs a subsequent disability by an injury or occupational disease arising out of and in the course of his employment, and by reason of the combined effects of both the preexisting impairment and the subsequent injury or occupational disease or by reason of the aggravation and acceleration of the preexisting impairment suffers total and permanent disability, the employer and surety shall be liable for payment of compensation benefits only for the disability caused by the injury or occupational disease, including scheduled and unscheduled permanent disabilities, and the injured employee shall be compensated for the remainder of his compensation benefits out of the industrial special indemnity fund."

It is thus reasonably arguable that the legislature in amending the statute intended to eliminate from consideration the hindrance to employment aspect in defining permanent physical impairment. As readily seen, the version of the statute which is our concern (pre-1978), on its face does not define "permanent physical impairment" as a condition which has been a hindrance to obtaining employment. Indeed, such a reading would make the last part of the sentence, "or to obtaining reemployment if the employee should become unemployed," totally meaningless. This phrase obviously contemplates I.S.I.F. liability where the pre-existing condition is such that it reasonably could be expected to affect future attempts to obtain employment, but where that exact situation did not arise and has not arisen. The test apparently suggested is that the worker might well be expected to encounter difficulty finding another job in the event that he did become unemployed. Without this phrase, the statute could possibly be read as covering actual experiences in obtaining employment; with it, however, the intent obviously is to define "permanent physical impairment" as based on the effect the condition is likely or reasonably anticipated to have on obtaining employment. This reading also prevents I.S.I.F. liability from being premised on the fortuity of a claimant's good or bad luck in obtaining employment.

The Alaska Supreme Court was confronted with this same proposition in Employers Commercial Union Insurance Group v. Christ, 513 P.2d 1090, 1093-94 (Alaska 1973). That court read their statute ² as we read ours:

"It is argued that because the employee in this case was fully able to discharge his duties there is no practical reason to permit resort to the fund. But the statutory language provides the refutation. That language covers not only those physical impairments likely to be a hindrance or obstacle to obtaining employment, but also those which might be a hindrance in 'obtaining reemployment if the employee should become unemployed.' AS 23.30.-205(d). Thus, even though Christ had no difficulty keeping his job with the Division of Lands, he might well have had difficulty finding another job in the event that he became unemployed." Id. at 1093-94.

This reading is also consistent with the purposes of the I.S.I.F. We discussed those purposes in Cox v. Intermountain Lumber Co., 92 Idaho 197, 439 P.2d 931 (1968), as follows:

"Prior to its (the I.S.I.F.) creation, an employer who hired a handicapped worker was subject to the responsibility of...