Horton v. Garrett Freightlines, Inc., 16933

• Citation: 772 P.2d 119,115 Idaho 912
• Decision Date: 20 March 1989
• Docket Number: No. 16933,16933
• Parties: Hyrum Evan HORTON, Claimant-Appellant, v. GARRETT FREIGHTLINES, INC., Employer, and Truck Insurance Exchange, Surety, Defendants-Respondents.
• Court: United States State Supreme Court of Idaho

Page 119

772 P.2d 119

115 Idaho 912

Hyrum Evan HORTON, Claimant-Appellant, v. GARRETT FREIGHTLINES, INC., Employer, and Truck Insurance Exchange, Surety, Defendants-Respondents.

No. 16933.

Supreme Court of Idaho.

March 20, 1989.

Green, Service, Gasser & Kerl, Pocatello, for appellant. Steven V. Richert, argued, Pocatello.

Racine, Olson, Nye, Cooper & Budge, Pocatello, for respondents. Gary L. Cooper, argued, Pocatello.

JOHNSON, Justice.

This is a worker's compensation case that has been the subject of a prior appeal (Horton I ). Horton v. Garrett Freightlines, Inc., 106 Idaho 895, 684 P.2d 297 (1984). In its prior opinion this Court held that the Industrial Commission had retained jurisdiction of this claim for a future determination of permanent disability. The primary issue presented in this appeal is whether physical impairments that arose In this opinion we also point out that the evaluation of permanent disability is only the first step in determining the amount of compensation to be awarded for permanent disability. Any permanent impairment that exists at the time of the disability evaluation and that is the result of a work-related injury or of a physical condition that pre-existed the work-related injury should be included in the evaluation. The second step in determining compensation for permanent disability is apportioning liability to the employer and to the Industrial Special Indemnity Fund (ISIF) as provided for in I.C. §§ 72-406 and 72-332. Applying these statutes to the facts as found by the Commission does not cause us to conclude that more liability should have been apportioned to Horton's employer and its surety or to ISIF.

[115 Idaho 913] after the work-related injury to the employee (Horton), but which were the result of physical conditions that pre-existed the work-related injury, should be considered by the Commission when making a determination of the degree of Horton's permanent disability. The Commission concluded that these conditions should not be considered in determining the amount of compensation that Horton should receive. We agree, and affirm the Commission's order determining the employer's liability for Horton's permanent disability.

I.

THE FACTS AND PROCEEDINGS BEFORE THE COMMISSION.

The facts of this case from the time of the work-related accident in 1974 until the Commission denied Horton's application for a hearing in 1983 are set forth in the opinion of this Court in Horton I. 106 Idaho at 895-96, 684 P.2d at 297-98. Within two months after the decision of this Court in Horton I in July 1984, Horton quit working for Garrett Freightlines, Inc. (Garrett), because it became apparent that a total replacement of his right hip would be necessary. The total right hip replacement was performed in the fall of 1984. Following the replacement, Horton's doctor did not give him a full duty work release. Horton's union would not allow him to return to his job without a full release, and he has never returned to work for Garrett.

In the spring of 1984 Horton began to experience pain in his left shoulder and left leg or hip. In mid-December of 1984 Horton's doctor noted degenerative changes in Horton's left hip. By late February of 1985 the doctor X-rayed Horton's left shoulder and found severe arthritic changes. About that same time Horton complained to his doctor of back pain. By mid-March of 1985 the doctor noted early degenerative changes in Horton's left hip. By July of 1986 the doctor had diagnosed degenerative arthritis in Horton's right shoulder and a grade 1 spondylolisthesis and spondylolysis with the possibility of a herniated disk in Horton's back.

In February 1986 Horton filed an application for a hearing with the Commission seeking a determination of the degree of his permanent disability. Horton's doctor concluded that the only physical impairment he could relate to the 1974 work-related accident with the requisite degree of medical probability was Horton's right hip impairment, and that Horton could not return to his former employment because of great pain in his shoulders and left hip. He rated Horton's permanent impairment due to the condition of his right hip as equal to 30 percent of a whole person.

In September 1986 Horton was examined by a board certified orthopedic surgeon at the request of Garrett and its surety. This doctor found arthritic changes in Horton's left hip on the basis of X-rays taken in August 1984 as compared to prior X-rays. He diagnosed Horton's problems as osteoarthritis and avascular necrosis of the left hip, osteoarthritis of the right and left shoulder, and congenital spondylolisthesis of his low back. He rated Horton's permanent impairment because of his right hip as equal to twelve percent of a whole person. In this doctor's opinion, the 1974 accident caused all of Horton's right hip permanent impairment, but none of the impairment to his left hip, to either of his shoulders, or to his back. The doctor testified that it was The Commission adopted the permanent impairment rating of Horton's right hip provided by the doctor for Garrett and its surety over those of Horton's physician. The Commission did so because in making his rating Horton's doctor began with the assumption that all of Horton's physical impairments should total 100 percent. He then assigned percentages somewhat arbitrarily to each of the individual impairments to achieve that result. The Commission also noted that Horton's doctor had evidenced confusion as to the extent of the permanent impairment due to Horton's right hip injury, sometimes assigning to it a rating of 50 percent of the whole leg and sometimes a rating of 50 percent of the whole person. The Commission pointed out that even when Horton's doctor finally decided that the correct figure was 50 percent of the whole leg, he incorrectly calculated that a rating of 50 percent of the whole leg was equivalent to 30 percent of the whole person. Pursuant to I.C. § 72-428, the 50 percent of the whole leg rating was actually equivalent to only 20 percent of the whole person. The Commission also noted that Horton's doctor had failed to take into account the decrease in total permanent impairment that takes place when separate permanent impairments are added together.

[115 Idaho 914] Horton's hereditary collagen makeup that was responsible for his osteoarthritis.

The Commission also had before it testimony of two private rehabilitation specialists--one employed by Horton's attorney and one who saw Horton at the request of Garrett and its surety. The rehabilitation specialist employed by Horton's attorney concluded that based on the totality of Horton's physical impairments it was unlikely that Horton would find work within the geographic area of his employment by Garrett. This specialist did not attempt to disassociate the right hip condition from Horton's remaining physical impairments. The rehabilitation specialist employed by Garrett and its surety concluded that based upon only the physical limitations resulting from Horton's right hip replacement, Horton would be employable in regularly and continuously available employment, although not in heavy labor. This specialist also concluded that the physical impairments to the other portions of Horton's body would preclude substantially more employment opportunities and would render Horton "for the most part" permanently and totally disabled. Based on this evidence the Commission concluded that as a result of the 1974 work-related accident, Horton was permanently partially impaired to the extent of 12 percent of the whole person, and that considering Horton's permanent physical impairment and nonmedical factors, Horton was permanently disabled as a result of the accident to the extent of 30 percent of the whole person. It is from this decision that Horton has appealed.

II.

IN APPORTIONING TO GARRETT OR ISIF THE COMPENSATION TO WHICH HORTON WAS ENTITLED FOR HIS PERMANENT DISABILITY IT WAS NOT NECESSARY TO CONSIDER THE IMPAIRMENTS TO HORTON'S LEFT HIP, HIS SHOULDERS, AND HIS BACK.

Horton asserts that all limitations and circumstances present at the time of an evaluation of disability should be included in the disability evaluation. In support of this position Horton cites I.C. §§ 72-425 and 72-430.

I.C. § 72-425 provides that the evaluation or rating of permanent disability "is an appraisal of the injured employee's present and probable future ability to engage in gainful activity as it is affected by the medical factor of permanent impairment and by pertinent nonmedical factors provided in section 72-430, Idaho Code." Horton argues that the Commission failed to assess properly his "present and probable future ability to engage in gainful activity" in light of the physical impairments that arose after the injury to his right hip. In refusing to include these limitations in its evaluation of Horton's permanent disability the Commission referred to them as "unrelated permanent physical impairments."

[115 Idaho 915] We conclude that the Commission correctly determined the amount of compensation to which Horton was entitled. However, we conclude that the Commission left out of its decision a necessary step in the process of reaching this result. The step that was left out of the Commission's decision was the evaluation of Horton's permanent disability taking into account his work-related impairment and all of his physical impairments existing at the time of the evaluation and resulting from any condition that pre-existed the injury to his right hip. We are convinced that in deciding the amount of the award of compensation for permanent disability the Commission simply stated its conclusion without setting forth the result of the initial evaluation of permanent disability outlined above.

Horton's argument breaks down at the point where he concludes that if the Commission had determined that he were totally and permanently disabled as a result of all the...