Hegel v. Kuhlman Bros., Inc.

• Decision Date: 20 March 1989
• Docket Number: No. 16965,16965
• Parties: William HEGEL, Claimant-Respondent, v. KUHLMAN BROTHERS, INC., Employer, and Argonaut-Northwest Insurance Company, Surety, Defendants, and State of Idaho, Industrial Special Indemnity Fund, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 519

771 P.2d 519

115 Idaho 855

William HEGEL, Claimant-Respondent, v. KUHLMAN BROTHERS, INC., Employer, and Argonaut-Northwest Insurance Company, Surety, Defendants and State of Idaho, Industrial Special Indemnity Fund, Defendant-Appellant.

No. 16965.

Supreme Court of Idaho.

March 20, 1989.

Skinner, Fawcett & Mauk, Boise, for defendant-appellant. William L. Mauk, argued.

Cooke, Lamanna, Smith & Cogswell, Priest River, for claimant-respondent. Nicholas M. Lamanna, argued.

SHEPARD, Chief Justice.

This is an appeal from an order of the Industrial Commission finding claimant to be totally and permanently disabled under the odd-lot doctrine, and apportioning liability for the non-medical portion of the disability between the employer's surety and the Industrial Special Indemnity Fund. Only the Special Indemnity Fund appeals the decision of the Industrial Commission. We affirm.

Claimant Hegel is now 67 years of age. He attended school through the eighth grade and his reading ability is fair. Substantially all of his life has been spent in the logging industry. In 1979, while working for an employer not a party to this action, Hegel sustained an injury to his back and was temporarily and totally disabled. In June, 1982, while employed by defendant non-appellant Kuhlman Brothers, Inc., as a sawyer falling trees, he suffered an accident which resulted in injuries to the head, lacerations to the right side of his head and right ear, fracture of ribs, and an injury to his left shoulder and chest.

Upon application a hearing was held before the Commission and the testimony of several doctors and two vocational consultants was offered in the form of depositions. Thereafter the Commission concluded and found that Hegel suffered an impairment of fifteen percent of the whole man as a result of the injury in 1979, an impairment of nine percent of the whole man as a result of the 1982 accident, and an additional seventy-six percent disability as a result of non-medical factors such as age, training, transferable skills, background and work experience. Consequently, the Commission found Hegel was totally and permanently disabled within the odd-lot category as of January 4, 1984. The non-medical portion of the disability was apportioned between the employer, Kuhlman Brothers, Inc., and the Special Indemnity Fund in the same proportion as those parties shared responsibility for Hegel's physical impairment, i.e., employer-surety responsible for thirty-seven and one-half percent of the whole man permanent/partial disability, and the Special Indemnity Fund sixty-two and one-half percent of the whole man permanent/partial disability. The Commission further concluded that claimant's employment was not seasonal, and therefore claimant's average wage should be determined pursuant to the provisions of I.C. § 72-419(4)(b).

It is the principal contention of the Special Indemnity Fund that Hegel is not entitled to odd-lot classification, and is therefore not totally and permanently disabled. The odd-lot category exists for those persons who are so injured as to be unable to perform services other than those which are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist. Arnold v. Splendid Bakery, 88 Idaho 455, 401 P.2d 271 (1965). The Special Indemnity Fund asserts that Hegel failed to present a prima facie case in that he failed to attempt to find other types of employment following his industrial accident.

Whether or not a claimant is a member of the "odd-lot" category is a factual determination within the discretion of the Industrial Commission. Carey v. Clearwater County Road Department, 107 Idaho 109, 686 P.2d 54 (1984); Nielson v. State Industrial Special Indemnity Fund, 106 Idaho 878, 684 P.2d 280 (1984); Gordon v. West, 103 Idaho 100, 645 P.2d 334 (1982). "In order for a claimant to make out a prima facie case that he is an 'odd-lot' worker, he must show what other types of employment he has attempted." Nielson v. State Industrial Special Indemnity Fund, 106 Idaho at 880, 684 P.2d 280, quoting in part Gordon v. West, 103 Idaho at 105, 645 P.2d 334.

I.C. § 72-425 requires the Industrial Commission to consider the claimant's "present and probable future ability to engage in gainful activity as it is affected by the medical factor of permanent impairment and by non-medical factors ..." In Lyons v. Industrial Special Indemnity Fund, 98 Idaho 403, 406, 565 P.2d 1360, 1363 (1977), it is stated that "[i]f the evidence of the medical and non-medical factors places a claimant prima facie in the odd-lot category the burden is then on the employer, the Fund in this case, to show some kind of suitable work is regularly and continuously available to the claimant." (Citations omitted.)

In the instant case the Commission determined that although claimant had not attempted to obtain full time work, "the combination of his relatively advanced age, his limited job experience, his particular physical impairments, both of his upper extremities and his lower back, render such attempts futile."

If the Commission's findings of fact are supported by substantial competent evidence, they will not be disturbed on appeal. Snyder v. Burl C. Lange, Inc., 109 Idaho 167, 706 P.2d 56 (1985). We have carefully reviewed the record and hold that the Commission's findings are supported by substantial competent evidence, and hence such findings will not be disturbed on appeal.

I.C. § 72-419(6) provides for the determination of weekly wages for occupations which are exclusively seasonal. The Commission held that there was no evidence before it from which it could conclude that claimant's employment was exclusively seasonal, and hence the Commission applied I.C. § 72-419(4)(b) in its determination of claimant's average weekly wage. Again, our examination of the record discloses that the Commission's findings of fact are supported by substantial competent evidence, and they will not be disturbed.

The order of the Industrial Commission is affirmed; costs to respondent.

HUNTLEY and JOHNSON, JJ., and TOWLES, District Judge, Pro Tem., concur.

BAKES, Justice, specially concurring:

While I agree with the majority that the Commission's order finding claimant Hegel to be totally and permanently disabled should be affirmed, I write separately (1) to point out that neither the Commission nor the majority needed to conduct an odd lot analysis under the particular facts of this case; and (2) to express concern regarding problems inherent in the odd lot doctrine as it presently exists.

I.

This case is unique because the Commission concluded that Hegel is totally and permanently disabled under two different legal theories. It first found total permanent disability because Hegel's medical impairments together with his non-medical factors totaled 100%. Then, in a different finding, it also found Hegel totally and permanently disabled under the odd lot doctrine. To my knowledge, no other case has ever come before this Court under such a dual-theory scenario.

The Commission did not find that Hegel was in the odd lot category as a consequence of the combination of the 15%, the 9% and the 76% factors. Rather, the Commission made two separate and distinct conclusions. The first conclusion was that a combination of Hegel's medical impairments (15% plus 9%) and his pertinent non-medical factors (76%) resulted in 100% disability. Thereafter the Commission further found that Hegel was also in the odd lot category. The Commission, however, did not tie the odd lot determination together with the 100% disability conclusion. ¹

Even though the Commission found Hegel to be totally and permanently disabled under both an ordinary disability determination and under the odd lot doctrine, it need not have done so. Once the Commission found that claimant met his burden of proving 100% disability via his medical impairment and pertinent non-medical factors, there was no need for the Commission to go further and consider the burden-shifting odd lot doctrine. Likewise, our analysis need go no further than to show that there was substantial competent evidence supporting the Commission's findings regarding its initial 100% disability conclusion. If there is substantial competent evidence to support a 100% disability finding, then it is not necessary to go further and discuss the Commission's odd lot conclusion. Once 100% disability is found by the Commission on the merits of a claimant's case, claimant has proved his entitlement to 100% disability benefits, and there is no need to employ the burden-shifting odd lot doctrine.

A review of our prior cases discloses that Idaho recognized 100% disability on the merits of a claimant's case long before this Court ever considered and adopted the burden-shifting odd lot doctrine. I believe the odd lot doctrine comes into play only when the claimant has proved something less than 100% disability before application of the doctrine. Our seminal odd lot case is Lyons v. Industrial Special Indemnity Fund, 98 Idaho 403, 565 P.2d 1360 (1977). In Lyons we recognized the odd lot doctrine for the first time. Lyons came after the legislature had completely revamped the worker's compensation scheme in 1971. Since Lyons, this Court has handed down numerous decisions directly dealing with the odd lot doctrine which demonstrate that the odd lot doctrine only comes into play when the claimant has proved something less than 100% disability. Perhaps the most instructive case is Mapusaga v. Red Lion Riverside Inn, 113 Idaho 842, 748 P.2d 1372 (1987). In Mapusaga, claimant was found to have a 17% medical impairment. When pertinent non-medical factors were considered, claimant's permanent disability rose to 97% of the whole man--not quite 100% permanent disability. The Commission found that claimant's disability (97%) made her a prima facie odd lot worker, and since the employer had not rebutted claimant's...