Guyton v. Irving Jensen Co.

• Decision Date: 21 August 1985
• Docket Number: No. 84-514,84-514
• Citation: 373 N.W.2d 101
• Parties: Frank GUYTON, Jr., Appellant, v. IRVING JENSEN COMPANY, Appellee, and Chubb Pacific Indemnity Co. and Iowa Industrial Commissioner, Respondents.
• Court: Iowa Supreme Court

Page 101

373 N.W.2d 101

Frank GUYTON, Jr., Appellant, v. IRVING JENSEN COMPANY, Appellee and Chubb Pacific Indemnity Co. and Iowa Industrial Commissioner, Respondents.

No. 84-514.

Supreme Court of Iowa.

Aug. 21, 1985.

Rehearing Denied Sept. 19, 1985.

Robert D. Fulton of Fulton, Frerichs, Martin and Andres, P.C., Waterloo, for appellant.

Jay P. Roberts and Jim D. DeKoster of Swisher & Cohrt, Waterloo, for appellee.

Considered en banc.

McCORMICK, Justice.

In this case of first impression we adopt the "odd-lot doctrine" in workers' compensation cases. The court of appeals reversed the district court's affirmance of the industrial commissioner's disability decision on the ground the evidence showed as a matter of law that petitioner was totally rather than partially disabled. We believe an issue of fact was presented on the extent of petitioner's industrial disability. Nevertheless we believe the commissioner erred in failing to apply the odd-lot doctrine in this case. Therefore we vacate the decision of the court of appeals, reverse the district court, and remand the case to the industrial commissioner for appropriate additional proceedings.

Petitioner Frank Guyton, Jr. began this action by filing a petition for review-reopening pursuant to Iowa Code section 85.26(2) (1979). He hurt his back on May 5, 1978, while working for respondent Irving Jensen Company in Sioux City, when he was struck in the left hip by a cement truck. Workers' compensation benefits were paid during three months in 1978. In the review-reopening proceeding, he sought benefits for permanent disability, and the dispute concerns the extent of his compensable disability.

The industrial commissioner, acting through a deputy assigned to make the agency decision in accordance with Code section 86.3, determined Guyton's disability to be twenty percent. Upon Guyton's petition for judicial review, the district court affirmed the commissioner. When Guyton appealed to this court, we transferred the case to the court of appeals. That court reversed the district court after holding that Guyton proved total disability as a matter of law. We granted the employer's petition for further review.

Guyton raises essentially two questions in seeking to upset the commissioner's ruling. He contends that the commissioner applied an incorrect rule of law in determining the extent of his industrial disability. He also contends that the commissioner erred in failing to find him totally disabled because the evidence compels such a finding as a matter of law.

I. The applicable law. The commissioner acknowledged that a worker's physical impairment is only one factor in determining the extent of the worker's industrial disability. He also acknowledged that the worker's inability to find suitable work after bona fide efforts to do so may demonstrate total disability. In his analysis of the evidence, however, the commissioner framed the standard differently. In relevant part he said:

The question of disability remains the same for this claimant as for any other claimant: what does the evidence show that he can or cannot do? The evidence clearly shows what he cannot do due to his non-physical limitations, and the medical testimony shows that he indeed has some physical limitations which stem from the injury. However, the photographic evidence shows that his physical limitations are not so complete as to totally incapacitate him from work.

There are some 90 pictures in the exhibits (some are duplicates) which are discussed in the testimony of the private investigator. These pictures and that testimony clearly establish that on the first three days of June, 1982, claimant was able to load a box springs and other miscellaneous items onto his pickup truck, drive it to a landfill, and dispose of the items there. Also, he was able single-handedly to lift a heavy roto tiller onto the pickup. He was observed doing this work, driving the pickup, and other normal activities. It is true that claimant obtained pain medication after doing this work, but it is also true that he apparently continued to do such work because, as of the week of the hearing, the private investigator found that claimant's vehicle was again loaded with "junk." From that fact, one takes the inference that claimant continued his loading, hauling and unloading activities.

The testimony and pictures show that claimant can do work which is within his capabilities for extended periods of time. That being the case, he cannot be said to be permanently and totally disabled.

In his findings of fact, the commissioner said:

Although claimant has a permanent partial impairment to the body as a whole of 15 to 20 percent, he is able to perform such activities as loading light to moderately heavy items onto a pickup and is at times able to load an item as heavy as a roto tiller onto a pickup and is able to drive a pickup.

The commissioner also said:

Claimant is disabled to the extent of 20 percent of the body as a whole because of the injury of [May 5, 1978].

In accordance with these findings, the commissioner awarded Guyton benefits based on a twenty percent industrial disability.

Thus the commissioner equated Guyton's ability to obtain employment with his ability to perform physical activity in "junking." In this context, Guyton's industrial disability was determined to be approximately the same as his fifteen to twenty percent functional disability. The availability of suitable employment was not discussed.

The commissioner did not in his analysis address any of the other factors to be considered in determining industrial disability. Industrial disability means reduced earning capacity. Bodily impairment is merely one factor in gauging industrial disability. Other factors include the worker's age, intelligence, education, qualifications, experience, and the effect of the injury on the worker's ability to obtain suitable work. See Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 1984). When the combination of factors precludes the worker from obtaining regular employment to earn a living, the worker with only a partial functional disability has a total industrial disability. See McSpadden v Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980).

Abundant evidence concerning the other factors was adduced in this case. Guyton is a black man approximately 40 years old who does not know his age. He grew up in Mississippi where he had about one month of formal education. He cannot read or write or make change. The evidence included results of psychological tests administered for social security disability purposes. The tests showed Guyton to be mildly retarded. Considering his retardation with his lack of education and illiteracy, the examiner concluded Guyton "will be limited in competitive employment to jobs of an unskilled, repetitive nature requiring no literacy."

Guyton's employment history before his injury included work as a farm hand in Mississippi, fertilizer bagger in Waterloo, laborer in a Waterloo bottling plant for six years, city garbage man, and janitor at the Waterloo sewage plant. He was working as a laborer on highway construction when he was injured.

The uncontroverted medical evidence was that Guyton received a lower back sprain in the truck mishap, resulting in some percentage of permanent physical impairment due to recurrent pain. Substantial evidence supports the commissioner's finding that this impairment is fifteen to twenty percent of the body. Guyton's physician testified that he would have good days and bad days but could not do any job on a regular basis that involved bending, prolonged sitting, or even lifting as little as ten or fifteen pounds. He believed Guyton could not perform the work in the kind of jobs he previously had.

Testimony was received from a vocational counselor. Based on the medical and psychological data and her study of the job market, she said that before his injury Guyton could expect to obtain elemental employment in the bottom ten percent of the job market. After his injury she did not believe he could even obtain jobs of that type. She said Guyton might find work in a sheltered workshop that would pay approximately $1430 a year. In a normal economic climate, she believed most employers would eliminate him as a job applicant. If he were hired, she thought he would be put in a "last hired, first fired" category. His physical and mental limitations would combine to screen him out of job opportunities. She concluded that Guyton had "little, if any, possibility of job placement in substantial gainful activity." As a result, she said she considered him to be 100 percent vocationally disabled.

The...