Huerta v. School Dist. No. 431

• Decision Date: 28 April 1989
• Docket Number: No. 17089,17089
• Citation: 116 Idaho 43,773 P.2d 1130
• Parties: Juan HUERTA, Claimant-Appellant, v. SCHOOL DISTRICT # 431, Employer, State Insurance Fund, Surety, and State of Idaho, Industrial Special Indemnity Fund, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 1130

773 P.2d 1130

116 Idaho 43

Juan HUERTA, Claimant-Appellant, v. SCHOOL DISTRICT # 431, Employer, State Insurance Fund, Surety and State of Idaho, Industrial Special Indemnity Fund, Defendants-Respondents.

No. 17089.

Supreme Court of Idaho.

April 28, 1989.

Uranga & Uranga, Boise, for claimant-appellant. Louis L. Uranga argued.

Hyde, Wetherell, Bray & Haff, Boise, for respondent, School District # 431 and State Ins. Fund. Michael E. Wetherell argued.

Jim Jones, Atty. Gen., Boise, and Skinner, Fawcett & Mauk of Boise, for respondents, State of Idaho, Industrial Special Indemnity Fund. William L. Mauk, argued.

JOHNSON, Justice.

This is a worker's compensation case. The primary issue presented in this appeal is whether the Industrial Commission correctly concluded that the claimant (Huerta) did not sustain the burden of proving that he fell in the odd-lot category. We affirm the Commission's order. In doing so, we clarify the manner in which a claimant must establish a prima facie case of being an odd-lot worker. We also uphold the Commission's restriction of rebuttal evidence offered at a continuation of the hearing to determine Huerta's disability.

I.

THE BACKGROUND AND PRIOR PROCEEDINGS.

Huerta injured his back in March 1984, while working as a janitor for School District # 431 (the employer). He is Hispanic and was forty-seven years old at the time of this injury. He has a fifth-grade education. Although he speaks and understands English, he cannot read or write either English or Spanish.

Huerta suffered two prior work-related injuries. In 1965 he injured his back while working for a previous employer. In 1979 he injured his left knee while working for the employer in this case. After two surgeries to correct the problems with his knee he returned to work for the employer, where he remained employed until his back injury in this case.

Following his injury in 1984, Huerta saw a chiropractor who referred him to an orthopedic surgeon. This doctor treated Huerta conservatively, prescribing walking, exercise and medication. When this treatment failed to resolve Huerta's back pain, Huerta went to his family physician, who referred him to another orthopedic surgeon, Dr. Bills. Dr. Bills also recommended conservative treatment. After a month Huerta's back had not improved, and Dr. Bills referred Huerta to another orthopedic surgeon, Dr. Bishop. Dr. Bishop performed surgery on Huerta's back to decompress two herniated intervertebral discs in June 1984.

Dr. Bishop monitored Huerta's recovery and suggested that Huerta would be able to return to work on September 1, 1984. Huerta did not recover as quickly as anticipated and was unable to return to work as planned. Following further testing, Dr. Bishop performed a second back surgery in November 1984. In May 1985 Dr. Bishop evaluated Huerta's impairment resulting from the 1984 injury as thirty percent of the whole person. Dr. Bishop rated the impairment due to the condition of Huerta's left knee at five percent of the whole person.

In September 1984 Huerta's compensation file was referred to a field consultant (Montgomery) who worked for the vocational rehabilitation division of the Commission. Montgomery attempted to obtain reemployment for Huerta with the employer, but was unsuccessful. Montgomery considered Huerta to be employable in security work, bus driving or cashiering, but concluded that his employment opportunities were limited because of his physical restrictions, his limited education, his attitude of being totally disabled, and the economic condition of the community.

The State Insurance Fund (the surety), which insured the employer's liability under the worker's compensation laws, hired a private vocational rehabilitation firm to evaluate Huerta. A rehabilitation specialist (Stewart) who worked for this firm concurred with Montgomery that Huerta was a difficult placement candidate because of his physical restrictions, his lack of education, and his apparent reaction to his injuries. In Stewart's opinion Huerta's prospect for employment was limited to sedentary or light duty work.

In September 1985 Dr. Bills evaluated the impairment due to Huerta's 1984 back injury as twenty percent of the whole person. He attributed another eight percent impairment of the whole person to Huerta's knee problems, for a composite rating of twenty-four percent. Dr. Bills indicated that Huerta could lift up to twenty pounds frequently, but should not bend, twist or crouch.

In February 1986 Huerta participated in a functional capacities assessment. As a result of this assessment, it was recommended that Huerta be limited to sedentary work that allowed frequent changes of position and which did not require hand dexterity.

At the request of the surety Huerta was examined by a panel of physicians in July 1986. The panel found Huerta to be suffering from failed back surgery, because the symptoms and pain which had necessitated the surgeries in 1984 had not been relieved. The panel evaluated Huerta's impairment caused by his 1984 back injury to be twenty-five percent of the whole person.

In early October 1986 Huerta participated in a pain clinic that was scheduled for three weeks. Huerta completed only eight days of the program. The director of the clinic testified that Huerta was not motivated to do well in the program and voluntarily chose not to continue his participation. Huerta's wife testified that the staff of the clinic told her and Huerta that the evaluation was complete and that Huerta could leave if he wanted.

The hearing before the Commission to determine the degree of Huerta's disability was held beginning on October 22, 1986. The Industrial Special Indemnity Fund (ISIF) was also a party to this proceeding. During her testimony as a witness for Huerta, Montgomery suggested Ore-Ida and Dickinson Frozen Foods might have compatible employment for Huerta. She acknowledged that she had not placed injured workers with either of these employers and that she was not specifically aware of lifting, standing, sitting, or walking requirements of either employer. A report by Stewart was admitted in evidence indicating that he had made a labor market search in the Weiser and Payette areas and that he had located no positions that fell within Huerta's physical or educational limitations. Stewart testified as a witness for the surety at the hearing. He stated that there was employment available in the area of Huerta's residence that Huerta could perform. He suggested Ore-Ida and J.R. Simplot Company as potential employers. After two days of hearing, including rebuttal evidence by Huerta and his wife, Huerta rested his case. The surety was allowed twenty-eight days after the hearing to obtain depositions of two doctors and an investigator who had conducted video surveillance of Huerta.

In November 1986 the surety deposed Dr. Bills. Dr. Bills was shown a videotape of Huerta walking, driving, bending, stooping, and using a power saw and a hand saw to saw boards on a saw horse. After viewing the videotape Dr. Bills modified his opinion of Huerta's restrictions, stating that Huerta could lift and carry up to forty pounds occasionally and that he could crouch occasionally.

At the continuation of the hearing in January 1987 Huerta was allowed to present testimony in rebuttal to the videotape. Mrs. Huerta testified that on the day following the sawing that was depicted on the videotape Huerta experienced increased pain and remained in bed most of the day. She also was asked questions about Huerta's attempts to find employment with Dickinson Frozen Foods and Ore-Ida after the October hearing. The Commission sustained objections to this testimony on the ground that it was beyond the scope of proper rebuttal.

At the continuation of the hearing a consultant (Avila) from the Job Service of the Department of Employment in Payette testified for Huerta on rebuttal. Avila stated that she had met with Huerta and his wife approximately one month prior to the continuation of the hearing and had discussed with them employment possibilities with Ore-Ida. She received an application from Huerta for employment at Ore-Ida but considered his chances to be limited. She admitted that Job Services had been instructed by Ore-Ida to screen all applicants for employment to make sure that they did not have any back problems.

Based on the testimony of Montgomery and Stewart, the panel evaluation and the modified evaluation of Dr. Bills, the Commission found that Huerta was capable of performing light duty work or work at the lighter end of the medium category. The Commission also found that jobs within these categories were available within a reasonable area from Huerta's home. The Commission concluded that Huerta had not sustained his burden of proving that he fell in the odd-lot category or that he was totally and permanently disabled. The Commission found that Huerta suffers a partial permanent impairment of thirty percent of the whole person, with five percent attributable to his previous back surgery and five percent attributable to his knee problem, resulting in a permanent partial impairment of twenty percent of the whole person causally related to the 1984 accident. Taking into account the pertinent nonmedical factors, the Commission ordered that Huerta had a permanent-partial disability of forty percent of the whole person. ISIF was dismissed as a party to the action.

Huerta has appealed from the decision of the Commission. He raises as issues on appeal the limitation of his rebuttal evidence at the continuation of the hearing and the decision of the Commission that he failed to sustain his burden of proving that he was an odd-lot worker.

II.

THE COMMISSION WAS WITHIN ITS DISCRETION IN LIMITING REBUTTAL.

Huerta asserts that in the January 1987 continuation hearing the Commission should not have limited Mrs. Huerta's testimony concerning Huerta's job applications at...