Rose v. Westates Const. Co.

• Decision Date: 30 July 1985
• Docket Number: No. 83-211,83-211
• Citation: 703 P.2d 1084
• Parties: In the Matter of the Protest Upon the Worker's Compensation Claim of Kenneth C. ROSE, Appellant (Employee-Claimant), v. WESTATES CONSTRUCTION CO., Appellee (Employer).
• Court: Wyoming Supreme Court

Page 1084

703 P.2d 1084

In the Matter of the Protest Upon the Worker's Compensation Claim of Kenneth C. ROSE, Appellant (Employee-Claimant), v. WESTATES CONSTRUCTION CO., Appellee (Employer).

No. 83-211.

Supreme Court of Wyoming.

July 30, 1985.

K. Craig Williams of Williams, Kelly & Waldrip, Rawlins, for appellant.

Catherine L. MacPherson of Johnson, MacPherson & Noecker, Rawlins, for appellee.

Before THOMAS, C.J., and ROSE, ROONEY, BROWN and CARDINE, JJ.

THOMAS, Chief Justice.

The primary issue presented in this case is whether the district court properly applied the "odd-lot doctrine" under the Wyoming worker's compensation statute in denying a claim for permanent total disability. There is a corollary question with respect to the sufficiency of the evidence to sustain the district court's award of a permanent partial disability of twenty percent. We affirm the award entered by the district court.

The appellant, Kenneth C. Rose, states the issues to be dealt with as follows:

"I.

"AS A MATTER OF LAW, THE APPELLANT IS NOT PRECLUDED FROM RECEIVING ONE HUNDRED PERCENT PERMANENT DISABILITY BY EMPLOYMENT AVAILABLE TO HIM IN THE COUNTY OF HIS RESIDENCE FOR WHICH HE WAS NOT QUALIFIED BY EXPERIENCE OR TRAINING.

"II.

"ON THE FACTS OF THE PRESENT CASE, THE DISTRICT COURT'S DECISION DENYING ONE HUNDRED PERCENT TOTAL DISABILITY IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE EVEN ASIDE FROM THE FACT THAT IT IS BASED UPON A REPORT BASED UPON LEGALLY IRRELEVANT PREMISES.

"A. REVEREND LUNDGREN'S REPORT, AS AMPLIFIED BY MARIE HILL'S TESTIMONY, SHOWS AN INABILITY BY MR. ROSE TO HOLD GAINFUL EMPLOYMENT.

"B. MR. ROSE' S HORSE RAISING PARTNERSHIP DOES NOT DISQUALIFY HIM FROM RECEIVING ONE HUNDRED PERCENT PERMANENT DISABILITY.

"III.

"THE DISTRICT COURT FAILED TO PROPERLY CONSIDER AND EVALUATE ALL RELEVANT FACTORS IN DETERMINING THE EXTENT OF DISABILITY."

The appellee, Westates Construction Company, has agreed with the statement of the issues made by the appellant.

Kenneth C. Rose injured his back while working as a laborer on a dam construction project. He slipped and fell while carrying a heavy cement form. An orthopedic surgeon who examined him two days later diagnosed a severe lumbosacral spine sprain superimposed on first degree spondylolisthesis of L-5 on S-1. He was treated by being placed in traction, and a body cast was applied. Rose applied for and received temporary total disability benefits arising out of this injury, and Westates Construction acquiesced in the temporary total disability benefits.

Some six months later Rose was re-examined by the treating orthopedic surgeon. In a letter to the clerk of the district court that physician stated, among other things:

" * * * At the present time, I feel that he is one hundred percent disabled from doing the work, which he was doing at the time of the injury of driving heavy equipment. * * * "

Following this examination Rose filed a claim for permanent total disability benefits, and Westates Construction Company contested that claim.

At the request of Westates Construction Company, Stress Management and Biofeedback Institute of Wyoming conducted an examination of Rose which included an examination by another orthopedic surgeon. At the hearing of this case testimony was received from Rose and from the manager of the Carbon County Job Service Office. In addition, three exhibits were admitted into evidence by stipulation. These consisted of a copy of the letter from appellant's orthopedic surgeon, a portion of which is quoted above; the report from the Stress Management and Biofeedback Institute of Wyoming; and a portion of a document entitled Manual for Orthopedic Surgeons in Evaluating Permanent Physical Impairment. Included in the report from the Stress Management and Biofeedback Institute was a letter from the orthopedic surgeon who examined the appellant as a part of the Institute's examination. That orthopedic surgeon concurred in the prior diagnosis of appellant's condition, and the letter report further stated:

"This man is effectively prevented from returning to the type of work that he was doing at the time of injury, and I doubt that it will improve, that is, I feel this injury is permanent.

"According to the Manual for Orthopedic Surgeons in Evaluating Permanent Physical Impairment, this injury would carry a 20 per cent whole body permanent physical impairment. I feel effectively, however, that the patient is 100 per cent functionally impaired."

In the report from the Stress Management and Biofeedback Institute of Wyoming there also was included a document entitled "McCarron-Dial Work Evaluation" prepared by a certified occupational evaluator using a system described as a neuro-psychological approach to vocational and work evaluation. There was attached to that evaluation a listing of potential job placements statistically derived from the results of testing which theoretically the person evaluated could perform within one year, given his limitations and proper training. There were fifty-five occupational titles generated pursuant to this evaluation.

The manager of the Carbon County Job Service office testified that of the fifty-five potential occupational titles twenty-two were available in Carbon County, although she had no current vacancies. In addition she testified that her testimony did not take into consideration any physical limitations of the appellant.

Rose testified that he had attended school through the eighth grade, and he then joined the Army in 1946. While serving in the Army he received training in heavy equipment operation, and also earned a General Education Diploma. After leaving military service he worked as an ambulance driver, and then as a laborer in a mine. He then was hired as a police officer, and held that job for eighteen years. In 1974 he retired to become a horse rancher but within a few months he returned to police work, accepting a job as Chief of Police in Shelburn, Indiana. He then accepted a similar position in Medicine Bow, Wyoming, and after leaving that position he worked as a heavy equipment operator, first for a coal mine, and subsequently for various construction companies until he was injured. Rose also testified that he suffered constant lower back pain and required medication because of his injury. He was required to refrain from any stooping, bending or heavy lifting, and could not sit or stand for any lengthy period of time. In addition, he said in his testimony that he had invested in a quarter-horse-raising partnership, which he helped to supervise in January of 1983. Upon cross-examination he admitted that his experience with the Police Department of the City and County of Denver had included work in a supervisory capacity. He further testified that he had not looked for work since he was injured.

In comments from the bench following closing statements by counsel at the hearing, the district judge stated that it was clear that Rose suffered from a permanent disability and that he was one hundred percent disabled from doing the work he was doing at the time of the injury, which was the functional impairment described by the second orthopedic surgeon. The court went on to find that there were other available occupations which Rose was capable of engaging in, and simply because they were not currently available on the job market that did not result in his being one hundred percent permanently disabled. The district judge indicated that his personal feeling was that there might be more than a twenty percent permanent partial disability but something less than one hundred percent. He said, however, that the evidence available in the case would only justify twenty percent. The district judge also commented...