Nielson v. State, Indus. Special Indem. Fund, 14971

• Decision Date: 27 June 1984
• Docket Number: No. 14971,14971
• Citation: 684 P.2d 280,106 Idaho 878
• Parties: Edward Arthur NIELSON, Claimant-Respondent, Cross-Appellant, v. STATE of Idaho, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendant-Appellant, Cross- Respondent.
• Court: Idaho Supreme Court

Page 280

684 P.2d 280

106 Idaho 878

Edward Arthur NIELSON, Claimant-Respondent, Cross-Appellant, v. STATE of Idaho, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendant-Appellant, Cross- Respondent.

No. 14971.

Supreme Court of Idaho.

June 27, 1984.

M. Jay Meyers, Pocatello, for defendant-appellant, cross-respondent.

Kenneth E. Lyon, Jr., of Lyon & Jorgensen, Pocatello, for claimant-respondent, cross-appellant.

DONALDSON, Chief Justice.

On April 28, 1980, while working for Allied Paving Corporation, Claimant Nielson was involved in an accident which resulted in a compression fracture of his first lumbar vertebra. Claimant was treated by Doctor Gresham. Subsequently, claimant and Allied's surety entered into a compensation agreement reflecting the 15% of the whole man impairment rating given to claimant by Doctor Gresham.

On June 8, 1981, claimant filed an application for hearing with the Commission seeking benefits for total permanent disability. The application was filed against Allied, its surety, and the Industrial Special Indemnity Fund (ISIF). Subsequently, claimant and Allied entered into a settlement agreement, and Allied and its surety were dismissed from the case.

Claimant had suffered previous injuries. In 1944, claimant had suffered a dislocated right hip. Since that time, the condition of claimant's right hip has gradually worsened. In 1954, claimant fractured his right leg below the knee. However, there is no evidence that claimant suffers any residual effects as a result of this injury.

At the time of the 1980 accident, claimant was fifty-three years old. Claimant left school during his ninth grade year. Since leaving school, claimant has been employed as a jackhammer operator, truck driver, farm worker, construction mechanic, and millwright. From 1970 through 1980, claimant worked predominantely as a truck driver and equipment operator.

After a hearing on the matter, the Industrial Commission filed a decision in which it concluded that Claimant Nielson is totally and permanently disabled as a result of being a member of the "odd-lot" category, and that 85% of claimant's disability resulted from his pre-existing impairment. Consequently, the Commission determined that claimant is entitled to recover permanent disability benefits for the 85% disability resulting from his pre-existing impairment from ISIF. ISIF appeals from the decision of the Commission, and claimant cross-appeals the Commission's order denying claimant's motion to lift the stay of judgment pending the appeal.

The issues on appeal are essentially as follows: (1) Did the Commission err in finding claimant to be totally and permanently disabled? (2) Did the Commission err in finding that claimant sustained a permanent disability of 15% of the whole man as a result of the April, 1980 accident? (3) Did the Commission err in computing the benefits that claimant is entitled to receive? In addition, the cross-appeal raises the following issue: Did the Commission err in denying claimant's motion to lift the stay of judgment pending the appeal?

I.

(A). TOTAL AND PERMANENT DISABILITY

ISIF attacks the Commission's finding, that claimant is a member of the "odd-lot" category and therefore totally and permanently disabled, on three grounds. Initially, ISIF argues that Claimant Nielson failed to present a prima facie case by failing to show what other types of employment he has attempted since his industrial accident. Secondly, ISIF contends that even if claimant has made out a prima facie case, that case has been rebutted by ISIF's presentation of evidence showing suitable work which is regularly and continuously available to claimant. Finally, ISIF asserts that the Commission erred when it denied ISIF's motion to have claimant undergo an artificial hip replacement prior to the determination of claimant's disability.

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." Gordon v. West, 103 Idaho 100, 105, 645 P.2d 334, 339 (1982). ISIF contends that Claimant Nielson has failed to show that he has attempted any employment other than as a truck driver since his accident, and that therefore, he has failed to show that he is a member of the "odd-lot" category.

The determination of whether or not a claimant is a member of the "odd-lot" category is a factual determination within the discretion of the Commission. Carey v. Clearwater County Road Department, --- Idaho ---, 686 P.2d 54 (1984); Gordon v. West, supra; Reifsteck v. Lantern Motel & Cafe, 101 Idaho 699, 619 P.2d 1152 (1980). Where contested findings of the Commission are supported by substantial, competent evidence, those findings will not be disturbed on appeal. I.C. § 72-732(1); In re Chavez, 104 Idaho 279, 658 P.2d 950 (1983); Bush v. Bonners Ferry School Dist. No. 101, 102 Idaho 620, 636 P.2d 175 (1981); Maez v. Thunderbird Market, 101 Idaho 128, 609 P.2d 660 (1980).

Although there were no findings by the Commission that Claimant Nielson had attempted other types of employment, the Commission did find that Nielson had sought employment unsuccessfully. In addition, the Commission found that claimant was 55 years of age, had an eighth grade education, was considerably restricted in his movements and ambulation, and was unable to use any of the skills he had acquired due to the injuries to his hip and back. All of these findings are supported by substantial, competent evidence, and therefore, we hold that Claimant Nielson did make a prima facie showing that he is an "odd-lot" worker. Consequently, the burden shifted to ISIF to demonstrate the availability of suitable work for the claimant.

ISIF contends that it met its burden of proof by putting on evidence of a job survey conducted by Mr. Loya, a field consultant with the Industrial Commission Rehabilitation Division. According to the testimony of Mr. Loya, five different employers had had openings at various times during 1981 for sedentary jobs. However, as we stated in Lyons v. Industrial Special Indemnity Fund, 98 Idaho 403, 565 P.2d 1360 (1977), ISIF had the burden of introducing evidence that there was an actual job within a reasonable distance from claimant's home which he was able to perform, or for which he could have been trained. Furthermore, ISIF had the burden of showing that claimant had a reasonable opportunity to be employed at that job. Id. While Mr. Loya's testimony in regard to the past availability of sedentary employment in the Pocatello area may be relevant, we agree with the Commission's conclusion that this testimony alone was insufficient to show "that the claimant had a reasonable opportunity to be employed at any specific job." Consequently, we affirm the Commission's conclusion that ISIF failed to show some kind of suitable work regularly and continuously available to claimant.

Lastly, ISIF contends that the Commission should not have made any determination as to claimant's disability until claimant agreed to undergo an artificial hip replacement. However, neither of the doctors who examined Claimant Nielson recommended a hip replacement at the present time. Therefore, we affirm the Commission's denial of ISIF's motion to have claimant undergo an artificial hip replacement.

(B). APPORTIONMENT OF DISABILITY

Prior to concluding that Claimant Nielson is totally and permanently disabled, the Commission found that claimant had a pre-existing permanent physical impairment of 20% of the whole man. The Commission failed to make a finding as to the permanent physical impairment which resulted from the April, 1980 accident. However, the Commission concluded that as a result of the April, 1980 accident, claimant sustained a permanent disability of 15% of the whole man for which the employer and its surety were liable. Consequently, the Commission concluded that ISIF is liable for the remaining 85% permanent disability. ISIF contends that these conclusions of the Commission are in error.

According to I.C. § 72-332, when the combined effects of both a pre-existing impairment and a subsequent work-related injury cause a workman to suffer total and permanent disability, the employer and its surety are liable for compensation benefits to the extent of the disability caused by the work-related injury, and the remainder of the compensation benefits are paid to the workman out of the Industrial Special Indemnity Fund. ¹ Essentially, the statute provides for an apportionment of nonmedical factors between the employer/surety and ISIF. We have thoroughly dealt with this issue in the recently released case of Carey v. Clearwater County Road Department, --- Idaho ---, 686 P.2d 54 (1984). In that case we concluded that "the appropriate solution to the problem of apportioning the non-medical disability factors, in an odd-lot case where the fund is involved, is to prorate the non-medical portion of disability between the employer and the fund, in proportion to their respective percentages of responsibility for the physical impairment." Id. at 63. In order to apply this rule, it is necessary for the Commission to make a determination of both the percentage of pre-existing permanent impairment, and the percentage of permanent impairment resulting from the work-related accident. In this case, the Commission found that claimant had a pre-existing permanent impairment of 20% of the whole man. However, the Commission failed to make a determination of the percentage of permanent impairment resulting from the April, 1980 accident. Thus, it is impossible to prorate the nonmedical factors in order to determine the extent of permanent disability resulting from the pre-existing condition for which ISIF is responsible. Therefore, we reverse the Commission's conclusions as to the extent of disability resulting from the pre-existing permanent impairment, and the April, 1980 accident. Furthermore, we remand for a determination of the...