Lyons v. Industrial Special Indem. Fund

• Decision Date: 16 June 1977
• Docket Number: No. 12037,12037
• Parties: George J. LYONS, Claimant-Appellant, v. INDUSTRIAL SPECIAL INDEMNITY FUND, State of Idaho, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 1360

565 P.2d 1360

98 Idaho 403

George J. LYONS, Claimant-Appellant, v. INDUSTRIAL SPECIAL INDEMNITY FUND, State of Idaho, Defendant-Respondent.

No. 12037.

Supreme Court of Idaho.

June 16, 1977.

George A. Greenfield of McClenahan & Greenfield, John F. Greenfield, Boise, for claimant. Samuel Kaufman of Anderson, Kaufman, Anderson & Ringert, Boise, amicus curiae, for appellant.

Robert C. Youngstrom, Spec. Asst. Atty. Gen., Boise, for respondent.

John W. Barrett of Moffatt, Thomas, Barrett & Blanton, Boise, amicus curiae, for respondent.

DONALDSON, Justice.

On June 21, 1974, the appellant George J. Lyons filed an application requesting a hearing before the Industrial Commission. He claimed that he was totally and permanently disabled for all gainful employment following an injury on September 22, 1972, while employed by A & T Logging Company. Upon motion by A & T Logging Company and its surety, Argonaut Northwest Insurance Company, the Industrial Special Indemnity Fund ¹ was made a defendant in the proceedings.

On December 17, 1974, a hearing was held by the Commission with the appellant being the only witness. In addition, medical reports of six doctors who had treated or examined the appellant were admitted into evidence. Prior to a decision, a lump sum settlement for partial permanent disability was agreed upon by the appellant and A & T Logging Company and its surety. The employer and its surety were then dismissed as parties to the proceeding leaving only the Fund as a defendant. The central issue remaining in dispute was whether the appellant was totally and permanently disabled after his September 22, 1972, injury. The Commission found, based upon the medical reports, that he was not, and Lyons challenges this finding on appeal asserting that there was substantial, competent evidence requiring a finding in his favor.

The record discloses that appellant Lyons is a 48 year old male with a ninth grade education whose entire labor history consists of nothing but heavy manual labor. In 1942 he went to work in the shipyards cutting iron with an acetylene torch. During the summers between 1942 and 1945, appellant worked in Idaho as a manual laborer on a road crew for the United States Forest Service. In 1945, he moved to Idaho permanently, locating in the Kooskia area where he worked in the lumber industry setting choker, pulling green chain, driving caterpillar tractor, driving truck, and working as a sawyer. In 1951, appellant moved to the Riggins area where he continued working in the lumber industry until a series of accidents, specifically detailed below, forced him to seek vocational rehabilitation in 1961. Following his vocational training, appellant worked periodically in a body shop in Orofino, Idaho, in addition to continuing work in the lumber industry. This arrangement continued from 1961 until his final injury in 1972. Appellant has no special training or skills other than his vocational training in body shop work.

Appellant, obviously a man of star-crossed fortune, has had a long succession of injuries throughout his life. At age 7, he lost his thumb in an accident with a saw. Industrial noise encountered over the years has led to a binaural hearing impairment. In addition to the 1972 injury to his back which led to the filing of this claim, appellant suffered three other back injuries while working for the logging industry. He also reinjured his back while working in the Orofino Body Shop. Appellant fractured his left leg twice which finally led to the insertion of a three inch screw for support. He also fractured his right leg in the same accident that injured his lower back in 1959 when he slipped off a logging truck. In two separate instances appellant damaged each of his eyes, his right eye when he was struck by a flying piece of bush and his left eye which was pierced by a piece of steel while working at the Orofino Body Shop. Additionally, appellant testified that he suffered permanent lung damage from smoke inhalation while fighting a forest fire in 1967. Appellant's string of misfortune finally culminated on September 22, 1972. While driving a logging truck for Alpine Construction Co., later known as A & T Logging, Inc., he found it necessary to put chains on his truck in order to traverse a muddy road. The chain hangers were so high on the truck that he was forced to make a small jump to rehang the chains and in doing so he felt a sharp pain in his back, as though "somebody hit me right between the shoulders with a sledge hammer." Since that time appellant states he has been unable to work at all due to the almost constant pain he is experiencing in his legs, back and left arm.

Appellant's five back injuries involved different areas of the spinal column. The three areas involved are the cervical spine (the seven vertebrae in the neck), the thoracic spine (the twelve vertebrae in the upper back), and the lumbar spine (the five vertebrae in the lower back). Appellant's first back injury damaged his lumbar spine, and the last damaged his cervical spine. Although the record is unclear as to his other three back injuries, the second also apparently involved his cervical spine, and the fourth, which occurred in the Orofino body shop, involved either his lower thoracic or upper lumbar spine.

Following his last injury, the record shows that appellant was examined by six different doctors, five of whom examined his back. At the request of the Argonaut Northwest Insurance Company, appellant was examined by Dr. Kuykendall, a Boise neurologist. After evaluating appellant's "rather multiple complaints," Dr. Kuykendall concluded there was no nerve damage to appellant's cervical spine and no recurrent problem with his lumbar spine. He diagnosed appellant's cervical injury as merely a strain and suggested a disability rating of "20 per cent loss of the left upper extremity at the shoulder." Dr. Baranco, a Caldwell orthopedic specialist, examined appellant's lumbar spine and gave him a disability rating, "relating solely to the lumbar spine, of approximately 16% loss of the whole man." Appellant's cervical spine was examined by Dr. Stewart, a Seattle orthopedic specialist. After performing a myelogram upon appellant which showed extensive degeneration of a cervical disc, Dr. Stewart rated appellant's disability due to the cervical injury at 25% of the whole man.

Dr. Thorson, a Lewiston orthopedic specialist, treated appellant for his 1972 injury on six different occasions during a period of approximately one year. He also concluded that appellant had injured a cervical disc but felt that the disability based upon the cervical injury was equivalent to "75% loss of the upper extremity at the shoulder." Dr. Thorson noted that appellant "is considerably hampered from his normal occupation and will probably remain so." He added that appellant "cannot tolerate lifting, twisting, sustained driving, or much heavy use of the arms at all." Dr. Kale, a Grangeville osteopath who was appellant's personal physician, saw appellant over ninety times during the period from April 1972 until December 1974. In his report he concluded:

"His (appellant's) ability to work is nil and I cannot see any improvement that may work out in the future. * * *

"He is substantially disabled at this point for gainful work. I do not expect this condition to resolve as far as I can see."

In addition, appellant testified that he was contacted by representatives of the vocational rehabilitation program after his last injury. They advised him that there was no hope of retraining him for another occupation. This testimony was uncontroverted.

The Commission found that the 1972 injury to appellant's cervical spine was not totally disabling. It relied heavily upon the opinion of Dr. Stewart that the cervical injury would not prevent appellant from working at bench level as long as he did no heavy lifting or overhead activities. It also noted that the pre-1972 injuries were not disabling because appellant had engaged in gainful employment after each of them. The Commission then apparently concluded that since the 1972 injury was not by itself totally disabling, and since the pre-1972 injuries had not been disabling in the past, the appellant was not totally and permanently disabled. This piecemeal evaluation of appellant's injuries is unacceptable.

An evaluation of total disability requires an appraisal of the claimant's present and probable future ability to sell his services in a competitive labor market. I.C. § 72-425. Prior to 1972 the appellant's employment history consisted entirely of heavy manual labor. It is undisputed that he cannot perform such jobs in the future and that if he is...