Hegel v. Kuhlman Bros., Inc.

771 P.2d 519, 115 Idaho 855, 1989 Ida. LEXIS 37

• Court: Idaho Supreme Court
• Decided: March 20, 1989
• Docket: 16965
• Status: Published

Opinions

SHEPARD, Chief Justice.

This is an appeal from an order of the Industrial Commission finding claimant to be totally and permanently disabled under the odd-lot doctrine, and apportioning liability for the non-medical portion of the disability between the employer’s surety and the Industrial Special Indemnity Fund. Only the Special Indemnity Fund appeals the decision of the Industrial Commission. We affirm.

Claimant Hegel is now 67 years of age. He attended school through the eighth grade and his reading ability is fair. Substantially all of his life has been spent in the logging industry. In 1979, while working for an employer not a party to this action, Hegel sustained an injury to his back and was temporarily and totally disabled. In June, 1982, while employed by defendant non-appellant Kuhlman Brothers, Inc., as a sawyer falling trees, he suffered an accident which resulted in injuries to the head, lacerations to the right side of his head and right ear, fracture of ribs, and an injury to his left shoulder and chest.

Upon application a hearing was held before the Commission and the testimony of several doctors and two vocational consultants was offered in the form of depositions. Thereafter the Commission concluded and found that Hegel suffered an impairment of fifteen percent of the whole man as a result of the injury in 1979, an impairment of nine percent of the whole man as a result of the 1982 accident, and an additional seventy-six percent disability as a result of non-medical factors such as age, training, transferable skills, background and work experience. Consequently, the Commission found Hegel was totally and permanently disabled within the odd-lot category as of January 4, 1984. The non-medical portion of the disability was apportioned between the employer, Kuhlman Brothers, Inc., and the Special Indemnity Fund in the same proportion as those parties shared responsibility for Hegel’s physical impairment, i.e., employer-surety responsible for thirty-seven and one-half percent of the whole man permanent/partial disability, and the Special Indemnity Fund sixty-two and one-half percent of the whole man permanent/partial disability. The Commission further concluded that claimant’s employment was not seasonal, and therefore claimant’s average wage should be determined pursuant to the provisions of I.C. § 72 — 419(4)(b).

It is the principal contention of the Special Indemnity Fund that Hegel is not entitled to odd-lot classification, and is therefore not totally and permanently disabled. The odd-lot category exists for those persons who are so injured as to be unable to perform services other than those which are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist. Arnold v. Splendid Bakery, 88 Idaho 455, 401 P.2d 271 (1965). The Special Indemnity Fund asserts that Hegel failed to present a prima facie case in that he failed to attempt to find other types of employment following his industrial accident.

Whether or not a claimant is a member of the “odd-lot” category is a factual determination within the discretion of the Industrial Commission. Carey v. Clearwater County Road Department, 107 Idaho 109, 686 P.2d 54 (1984); Nielson v. State Industrial Special Indemnity Fund, 106 Idaho 878, 684 P.2d 280 (1984); Gordon v. West, 103 Idaho 100, 645 P.2d 384 (1982). “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.” Nielson v. State Industrial Special Indemnity Fund, 106 Idaho at 880, 684 P.2d 280, quoting in part Gordon v. West, 103 Idaho at 105, 645 P.2d 334.

I.C. § 72-425 requires the Industrial Commission to consider the claimant’s “present and probable future ability to engage in gainful activity as it is affected by the medical factor of permanent impairment and by non-medical factors ...” In Lyons v. Industrial Special Indemnity Fund, 98 Idaho 403, 406, 565 P.2d 1360, 1363 (1977), it is stated that “[i]f the evidence of the medical and non-medical factors places a claimant prima facie in the odd-lot category the burden is then on the employer, the Fund in this case, to show some kind of suitable work is regularly and continuously available to the claimant.” (Citations omitted.)

In the instant case the Commission determined that although claimant had not attempted to obtain full time work, “the combination of his relatively advanced age, his limited job experience, his particular physical impairments, both of his upper extremities and his lower back, render such attempts futile.”

If the Commission’s findings of fact are supported by substantial competent evidence, they will not be disturbed on appeal. Snyder v. Burl C. Lange, Inc., 109 Idaho 167, 706 P.2d 56 (1985). We have carefully reviewed the record and hold that the Commission’s findings are supported by substantial competent evidence, and hence such findings will not be disturbed on appeal.

I.C. § 72-419(6) provides for the determination of weekly wages for occupations which are exclusively seasonal. The Commission held that there was no evidence before it from which it could conclude that claimant’s employment was exclusively seasonal, and hence the Commission applied I.C. § 72-419(4)(b) in its determination of claimant’s average weekly wage. Again, our examination of the record discloses that the Commission’s findings of fact are supported by substantial competent evidence, and they will not be disturbed.

The order of the Industrial Commission is affirmed; costs to respondent.

HUNTLEY and JOHNSON, JJ„ and TOWLES, District Judge, Pro Tern., concur.