Seufert v. Larson

• Citation: 137 Idaho 589,51 P.3d 403
• Decision Date: 16 July 2002
• Docket Number: No. 26732.,26732.
• Parties: Robert P. SEUFERT, Claimant-Appellant, v. Henry LARSON, Old Farm Tree Service, Employer, and Associated Loggers Exchange, Surety, and State of Idaho, Industrial Special Indemnity Fund, Defendants-Respondents.
• Court: Idaho Supreme Court

51 P.3d 403

137 Idaho 589

Robert P. SEUFERT, Claimant-Appellant, v. Henry LARSON, Old Farm Tree Service, Employer, and Associated Loggers Exchange, Surety, and State of Idaho, Industrial Special Indemnity Fund, Defendants-Respondents.

No. 26732.

Supreme Court of Idaho, Boise, April 2002 Term.

July 16, 2002.

Michael J. Vrable, Boise, for claimant-appellant.

Moffatt, Thomas, Barrett, Rock & Fields, Chtd., Boise, for defendants-respondents Henry Larson, Old Farm Tree Service, and Associated Loggers Exchange. Glenna M. Christensen argued. Mallea Law Offices, Boise, for defendant-respondent State of Idaho, Industrial Special Indemnity Fund. Kenneth L. Mallea argued.

SCHROEDER, Justice.

Robert Seufert appeals the Industrial Commission's decision denying him total and permanent disability under the odd lot doctrine and its apportionment of impairment under I.C. § 72-406.

I. FACTS AND PROCEDURAL BACKGROUND

Robert Seufert began working in the logging industry in 1964, his primary duty being setting chokers. He has been employed in the logging industry all his work life, except for four years in the Navy.

Seufert had a staphylococcus infection in his left leg in 1970, and sustained a left hip injury from a blow by a choker. The record did not contain any impairment ratings for these injuries. In 1979 he suffered multiple injuries as the result of an accident when he was sitting on his motorcycle at the side of the road. He was struck by a jeep, fell ten to twenty feet over a bridge, and landed on rocks. His injuries included fractured ribs, a punctured lung, two broken legs, AC separation in his right shoulder, a fractured left ankle, left foot, left kneecap, and two broken fingers on his left hand. He was hospitalized for four months and was unable to work for two years because of his injuries. His doctors advised him not to work in the woods, not to work on his feet, and to retrain into a lighter and sedentary position.

Seufert testified that he never fully recovered from the motorcycle accident and that he suffered from swelling and weakness in his legs and from a limited ability to walk. However, he returned to logging, working for numerous employers who were also his friends. He began working for Henry Larson and the Old Tree Farm Service (Employer) in 1993 on a logging team.

On November 20, 1995, Seufert was operating a Cat on the job. He got off to set a chain and the Cat rolled over, landing on his left leg. He was taken to Gritman Medical Center in Moscow where Dr. Graeme French (Dr. French) performed surgery on his left leg, inserting a metal rod from his knee to his ankle. He had a fractured left tibia, a severely crushed extruded calf muscle, and a superficial posterior compartment. A week later, Seufert had a skin graft on his lower left leg.

At the Employer's surety's request, Seufert was examined on August 5, 1996, by Dr. Thomas Crow (Dr. Crow), an orthopedic surgeon. Dr. Crow opined that Seufert was not medically stable at that time and could not return to his usual employment. The skin graft was slow to heal, and Seufert was referred to Dr. Steven Ozeran (Dr. Ozeran) for further treatment. On February 13, 1997, Dr. Ozeran noted that Seufert's leg was healed and saw no reason why he could not resume work. On March 17, 1997, Dr. French determined that Seufert was completely healed, and he could return to his usual job.

At the Employer's request, Seufert was examined by Dr. Richard Knoebel (Dr. Knoebel) on March 31, 1997. Dr. Knoebel assigned Seufert a 33% combined permanent physical impairment with 29% preexisting, no impairment for the tibia fracture, and 5% impairment for the skin graft. He noted that Seufert would need to guard against mechanical and thermal exposure to the skin graft site. He also stated that although Seufert was limited in his abilities, he was noted to be so prior to the industrial accident.

Seufert began receiving Social Security disability benefits in May of 1997. He testified that if he returned to work, his disability benefits would be reduced.

On July 9, 1997, Seufert filed a worker's compensation complaint against the Employer and another complaint against the Industrial Special Indemnity Fund (ISIF). He filed another complaint against the ISIF on May 7, 1999.

At Seufert's request, Dr. Michael Carraher (Dr. Carraher) examined him on June 30, 1999. Dr. Carraher agreed with Dr. Knoebel's 29% impairment rating, but increased the preexisting impairment to 31% to account for Seufert's hand injuries. He also agreed with the 5% rating for the skin graft. Although Dr. Carraher did not offer an opinion regarding Seufert's ability to work, he did state that his prior injuries prevented him from doing extensive standing, walking, or lifting, and that the prior injuries limited his abilities. Seufert walked with a cane, and did not work following the 1995 industrial accident.

An Industrial Commission referee held a hearing on January 18, 2000. The claimant, the Employer, and the Employer's surety agreed that Seufert was totally and permanently disabled. The ISIF contended that Seufert was not totally and permanently disabled, and that he had removed himself from the labor market. The ISIF argued in the alternative that the injuries suffered as a result of the 1979 motorcycle accident are the sole cause of his disability, and that any later employment was the result of sympathetic employers. Seufert testified that he had tried to find employment in Washington State and with the defendant Employer, but was unsuccessful. He tried to secure employment as a logger, carpenter, or a mechanic, but not much was available in the St. Maries area.

The referee found that Seufert established a prima facie case of odd lot status by the third method—any attempt to find employment would have been futile. The referee apportioned Seufert's injuries under the Carey formula, finding that his physical impairments totaled 36% of the whole person, 31% preexisting and 5% attributable to the 1995 industrial accident, with non-medical factors accounting for 64% of his total disability. The Employer was liable for 14% of Seufert's total disability, and the ISIF was responsible for the balance.

The Industrial Commission (Commission) issued its findings of fact, conclusions of law, and order on June 6, 2000. The Commission did not adopt the referee's findings of fact, conclusions of law, and recommendations. Instead, it found that Seufert had not established a prima facie case of total and permanent disability under the odd lot doctrine. The Commission found that Seufert had not made a legitimate attempt to perform any jobs; that his work search was insufficient; that he never met with a vocational rehabilitation counselor; and that there was no evidence that a job search in the St. Maries area would have been futile because there was no assessment of the availability of light sedentary jobs. It also found that he was not totally and permanently disabled prior to the 1995 industrial accident, because he was able to return to work in the logging industry following his 1979 motorcycle accident. The Commission found that the amount of Seufert's impairment attributable to the 1995 industrial accident was 5%, and that the Employer was liable for a 15% disability. The Commission dismissed the complaint against the ISIF.

Seufert filed a motion for reconsideration, which the Commission denied, stating that case law supported its decision to modify the referee's findings and conclusions. Seufert appealed, requesting that the findings of the referee be included in the record. The Commission did not include the referee's findings in the record and denied Seufert's motion to augment. Seufert filed a motion to augment with this Court, which was granted, ordering that the referee's findings and conclusions be added to the record.

II. STANDARD OF REVIEW

In Jensen v. City of Pocatello, 135 Idaho 406, 409, 18 P.3d 211, 214 (2000), this Court set forth the following standard of review:

When this Court reviews a decision from the Industrial Commission, it exercises free review over questions of law but reviews questions of fact only to determine whether substantial and competent evidence supports the Commission's findings. Ogden v. Thompson, 128 Idaho 87, 88, 910 P.2d 759, 760 (1996). Substantial and competent evidence is "relevant evidence which a reasonable mind might accept to support a conclusion." Boise Orthopedic Clinic v. Idaho State Ins. Fund (In re Wilson), 128 Idaho 161, 164, 911 P.2d 754, 757 (1996).

. . . . The Commission's conclusions on the credibility and weight of evidence will not be disturbed unless the conclusions are clearly erroneous. Zapata v. J.R. Simplot Co., 132 Idaho 513, 515, 975 P.2d 1178, 1180 (1999). On appeal, this Court is not to re-weigh the evidence or consider whether it would have reached a different conclusion from the evidence presented. See Warden v. Idaho Timber Corp., 132 Idaho 454, 457, 974 P.2d 506, 509 (1999)

.

Jensen, 135 Idaho at 409, 18 P.3d at 214.

III. THE COMMISSION HAD THE AUTHORITY TO MAKE ITS FINDINGS AND CONCLUSIONS IN PLACE OF THOSE SUBMITTED BY THE REFEREE IN DETERMINING SEUFERT HAD NOT PROVED ODD LOT STATUS

Seufert argues that odd lot status may be established by the claimant's own testimony or the testimony of others, and that the fact finder's evaluation of a claimant's credibility is crucial in determining whether the odd lot status has been established. He maintains that the Commission may not set aside the referee's findings based on credibility, unless the referee's findings are clearly wrong or the referee misconceived or overlooked material evidence. Consequently, he asks that this Court remand the case to the Commission with a finding of odd lot status, arguing that there is no substantial and competent evidence to support the Commission's finding that he did not establish an odd lot case.

Idaho Code section 72-506(2) provides the...