Worker's Compensation Claim of Cannon v. FMC Corp.

• Decision Date: 29 April 1986
• Docket Number: No. 84-273,84-273
• Citation: 718 P.2d 879
• Parties: In the Matter of the WORKER'S COMPENSATION CLAIM OF John C. CANNON, Appellant (Employee-Claimant), v. FMC CORPORATION, Appellee (Employer-Respondent).
• Court: Wyoming Supreme Court

Page 879

718 P.2d 879

In the Matter of the WORKER'S COMPENSATION CLAIM OF John C. CANNON, Appellant (Employee-Claimant), v. FMC CORPORATION, Appellee (Employer-Respondent).

No. 84-273.

Supreme Court of Wyoming.

April 29, 1986.

K. Craig Williams, Rawlins, for appellant.

Gary M. Greenhalgh of Greenhalgh, Bussart, West & Rossetti, Rock Springs, and Terry J. Harris, Asst. Atty. Gen., Cheyenne, for appellee.

Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.

BROWN, Justice.

This is an appeal from the district court's denial of a permanent total disability claim. John Cannon, appellant, applied for a modification of his permanent partial disability award of two and one-half percent, claiming that he had become totally disabled. The district court modified the award, finding that appellant suffered a thirty percent disability.

We will affirm.

In December, 1979, while employed as a janitor by appellee, FMC Corporation, appellant injured his back when he leaned over to pick up some paper. He continued working and reinjured his back in March, 1980. After this reinjury appellant underwent back surgery and returned to his janitorial job. In September, 1983, appellant left his job claiming his back pain was unbearable.

Appellant was awarded permanent partial disability benefits of two and one-half percent on March 2, 1983. After he left his job in September, 1983, appellant submitted a claim for permanent total disability, based upon a letter from his treating physician, Dr. Chris Jabour. Appellee contested this claim and a hearing was held in July, 1984.

Before the hearing, appellant, at the request of the state's Worker's Compensation Division, was examined by a panel of three doctors: Dr. Meade O. Davis, an orthopedic surgeon, Dr. Stephen H. Martin, a neurosurgeon, and Dr. Pat Fleming, a psychologist. Depositions from these three doctors were introduced in evidence at the hearing. In addition, appellant and Mrs. Eunice Kiernan, manager of the local Job Service Center, testified at the hearing.

Appellant testified as to the cause of his injury and the resulting pain. He also established his educational background and past work experience. He had attended school through the eighth grade and later received the equivalent of a high school diploma. Appellant's work history was extensive, including: delivery person, paratrooper and medical aide in the military service, carpenter, forklift operator, truck driver, construction worker, police officer and janitor. There were a number of other jobs, all of which involved to some extent, manual labor.

Evidence concerning the general availability of jobs in the area was provided by Mrs. Kiernan. She identified a number of available jobs for which appellant met the required educational and experience standards. Counsel for appellee asked Mrs. Kiernan whether there was a suitable job available for a person "who had a lift/push limitation of twenty to thirty pounds, and also was restricted from sitting or standing in one position for more than sixty minutes, or was limited from two hours of driving * * *." Mrs. Kiernan's response was: "Well, given his desire to work or her desire to work, yes, I think there would be work." Mrs. Kiernan later admitted, however, that appellant never applied to the Job Service; thus, his physical limitations were not known to her, so she could not definitely state whether he could hold any of the available jobs.

Medical evaluations concerning appellant's injury were provided by a letter from Dr. Jabour. In his letter, Dr. Jabour stated that he had earlier provided a partial disability figure of seven percent and that this figure was purely a physical impairment figure found in an orthopedic surgeon's manual which is used in evaluating permanent physical impairment. He went on to state his opinion that appellant "is totally disabled with regards to future manual work."

Other medical evidence was provided by the depositions of Drs. Davis, Martin and Fleming. Dr. Davis stated that appellant had a physical impairment of fifty percent; Dr. Martin stated that there was a thirty percent impairment; and Dr. Fleming tested appellant's mental capacity and concluded that appellant had good, average intelligence, and such capacity would enable him to compete with the average person.

From the above evidence the trial court held that appellant had a permanent partial disability of thirty percent. In his opinion letter the trial court stated that three physicians testified appellant could hold a job despite his disability; yet appellant made no attempt to seek employment although there were several job openings which fit appellant's capabilities. This led the court to conclude appellant was not "too eager" to get a job. In addition, the court specifically noted that testimony disclosed appellant's "degree of disability" had increased "from a maximum of 7% to a figure from 30% up to 50%."

Appellant brings this appeal from the order granting thirty percent permanent partial disability and denying permanent total disability. Three issues are presented according to appellant.

"I

"Did the district court err by failing to take into consideration in its determination of disability the inability of the employee-claimant to continue to perform work for which he was reasonably suited by experience or training prior to the injury?

"II

"On the evidence before the district court, was the employee-claimant entitled to permanent total disability under the odd-lot doctrine set forth by this court in Schepanovich v. United States Steel, [Wyo.], 669 P.2d 622 [522 (1983) ]?

"III

"Does the odd-lot doctrine continue to have validity in the State of Wyoming after the 1975 amendment to Wyoming Statute § 27-12-405(a)?"

Appellee restates the issues in an argumentative fashion but appears to agree with appellant's statement.

I

We are concerned, primarily, with two statutes. Section 27-12-403, W.S.1977 (June 1983 Replacement), concerns permanent partial disability. It provides in part:

"(a) Permanent partial disability means the loss or permanent impairment of a limb or sense, or any other injury known to surgery or medicine to constitute permanent impairment of a bodily function."

After dealing with partial disability for the loss of various body parts not relevant here, the statute provides in subsection (h):

"(h) For any other injury known to surgery or medicine to constitute permanent partial disability, the employee shall receive compensation in the amount proportional to the extent of permanent partial disability based as near as may be upon the foregoing schedule. One (1) factor to be considered is the ability of the employee to continue to perform work for which he was reasonably suited by experience or training prior to the injury."

The other relevant statute for our purposes is § 27-12-405(a), W.S.1977, which is set out in Part II of this opinion.

Our standard of review is well settled. "[Q]uestions regarding the extent and duration of a claimant's disability are questions of fact to be determined by the trial court and shall be reviewed as such. * * * " Matter of Abas, Wyo., 701 P.2d 1153, 1156 (1985). We review the evidence in the light most favorable to the trial court's findings, and when there is substantial evidence to support the facts found by the court, its order will not be disturbed. Pacific Power and Light v. Parsons, Wyo., 692 P.2d 226 (1984). In making the factual determination of the extent of the claimant's injury, the trial court is not bound by medical testimony; nonmedical witnesses and other evidence may be relied on. McCarty v. Bear Creek Uranium Company, Wyo., 694 P.2d 93 (1985).

Appellant maintains that there is no substantial evidence to support the trial court's finding. He contends § 27-12-403(h) requires that the trial court consider his ability to continue to perform work for which he was reasonably suited by experience or training prior to his injury, but that the court failed to consider this factor. In support of this contention appellant states that Doctors Jabour, Martin and Davis gave "physical impairment" figures of seven, thirty, and fifty percent respectively, and although at times they labeled these percentages as disability figures, the percentages referred only to physical impairment and not disability. According to appellant, there was no discrepancy in the amount of disability determined by the doctors when they took into consideration the statutory vocational factor. Appellee claims "[a]ll of the doctors agree that Mr. Cannon cannot return to the type of work for which he is qualified by virtue of his training and experience." Yet, appellant claims the trial court based its perception of the doctors' opinions on their incorrect use of the term "disability" when they had meant "physical impairments." This resulted in the erroneous conclusion of thirty percent disability in appellant's view.

Initially, we do not agree that the doctors were uniform in their rating of appellant's disability. Nor are we convinced that the trial court failed to consider the vocational factor stated in § 27-12-403(h). Instead, we think it is clear from the court's opinion letter that the thirty percent award was arrived at by considering the physical impairment figures along with the evidence provided by the depositions of Doctors Martin, Davis and Fleming and the testimony of Mrs. Kiernan, and concerned appellant's ability to obtain work for which he was reasonably suited.

Dr. Jabour unequivocally stated, in a letter to the clerk of the district court, that appellant was completely disabled with regard to future manual work because of the persistence and severity of his back pain. However, this opinion is accompanied by a seven percent physical impairment figure taken from an orthopedic surgeon's manual used to evaluate such impairments. In addition, Dr. Jabour's opinion as to appellant's "disability" is found in a...