Huerta v. School Dist. No. 431

773 P.2d 1130, 116 Idaho 43, 1989 Ida. LEXIS 72

• Court: Idaho Supreme Court
• Decided: April 28, 1989
• Docket: 17089
• Status: Published

Opinions

JOHNSON, Justice.

This is a worker’s compensation case. The primary issue presented in this appeal is whether the Industrial Commission correctly concluded that the claimant (Huerta) did not sustain the burden of proving that he fell in the odd-lot category. We affirm the Commission’s order. In doing so, we clarify the manner in which a claimant must establish a prima facie case of being an odd-lot worker. We also uphold the Commission’s restriction of rebuttal evidence offered at a continuation of the hearing to determine Huerta’s disability.

I.

THE BACKGROUND AND PRIOR PROCEEDINGS.

Huerta injured his back in March 1984, while working as a janitor for School District # 431 (the employer). He is Hispanic and was forty-seven years old at the time of this injury. He has a fifth-grade education. Although he speaks and understands English, he cannot read or write either English or Spanish.

Huerta suffered two prior work-related injuries. In 1965 he injured his back while working for a previous employer. In 1979 he injured his left knee while working for the employer in this case. After two surgeries to correct the problems with his knee he returned to work for the employer, where he remained employed until his back injury in this case.

Following his injury in 1984, Huerta saw a chiropractor who referred him to an orthopedic surgeon. This doctor treated Huerta conservatively, prescribing walking, exercise and medication. When this treatment failed to resolve Huerta’s back pain, Huerta went to his family physician, who referred him to another orthopedic surgeon, Dr. Bills. Dr. Bills also recommended conservative treatment. After a month Huerta’s back had not improved, and Dr. Bills referred Huerta to another orthopedic surgeon, Dr. Bishop. Dr. Bishop performed surgery on Huerta’s back to decompress two herniated intervertebral discs in June 1984.

Dr. Bishop monitored Huerta’s recovery and suggested that Huerta would be able to return to work on September 1, 1984. Huerta did not recover as quickly as anticipated and was unable to return to work as planned. Following further testing, Dr. Bishop performed a second back surgery in November 1984. In May 1985 Dr. Bishop evaluated Huerta’s impairment resulting from the 1984 injury as thirty percent of the whole person. Dr. Bishop rated the impairment due to the condition of Huerta’s left knee at five percent of the whole person.

In September 1984 Huerta’s compensation file was referred to a field consultant (Montgomery) who worked for the vocational rehabilitation division of the Commission. Montgomery attempted to obtain reemployment for Huerta with the employer, but was unsuccessful. Montgomery considered Huerta to be employable in security work, bus driving or cashiering, but concluded that his employment opportunities were limited because of his physical restrictions, his limited education, his attitude of being totally disabled, and the economic condition of the community.

The State Insurance Fund (the surety), which insured the employer’s liability under the worker’s compensation laws, hired a private vocational rehabilitation firm to evaluate Huerta. A rehabilitation specialist (Stewart) who worked for this firm concurred with Montgomery that Huerta was a difficult placement candidate because of his physical restrictions, his lack of education, and his apparent reaction to his injuries. In Stewart’s opinion Huerta’s prospect for employment was limited to sedentary or light duty work.

In September 1985 Dr. Bills evaluated the impairment due to Huerta’s 1984 back injury as twenty percent of the whole person. He attributed another eight percent impairment of the whole person to Huerta’s knee problems, for a composite rating of twenty-four percent. Dr. Bills indicated that Huerta could lift up to twenty pounds frequently, but should not bend, twist or crouch.

In February 1986 Huerta participated in a functional capacities assessment. As a result of this assessment, it was recommended that Huerta be limited to sedentary work that allowed frequent changes of position and which did not require hand dexterity.

At the request of the surety Huerta was examined by a panel of physicians in July 1986. The panel found Huerta to be suffering from failed back surgery, because the symptoms and pain which had necessitated the surgeries in 1984 had not been relieved. The panel evaluated Huerta’s impairment caused by his 1984 back injury to be twenty-five percent of the whole person.

In early October 1986 Huerta participated in a pain clinic that was scheduled for three weeks. Huerta completed only eight days of the program. The director of the clinic testified that Huerta was not motivated to do well in the program and voluntarily chose not to continue his participation. Huerta’s wife testified that the staff of the clinic told her and Huerta that the evaluation was complete and that Huerta could leave if he wanted.

The hearing before the Commission to determine the degree of Huerta’s disability was held beginning on October 22, 1986. The Industrial Special Indemnity Fund (ISIF) was also a party to this proceeding. During her testimony as a witness for Huerta, Montgomery suggested Ore-Ida and Dickinson Frozen Foods might have compatible employment for Huerta. She acknowledged that she had not placed injured workers with either of these employers and that she was not specifically aware of lifting, standing, sitting, or walking requirements of either employer. A report by Stewart was admitted in evidence indicating that he had made a labor market search in the Weiser and Payette areas and that he had located no positions that fell within Huerta’s physical or educational limitations. Stewart testified as a witness for the surety at the hearing. He stated that there was employment available in the area of Huerta’s residence that Huerta could perform. He suggested Ore-Ida and J.R. Simplot Company as potential employers. After two days of hearing, including rebuttal evidence by Huerta and his wife, Huerta rested his ease. The surety was allowed twenty-eight days after the hearing to obtain depositions of two doctors and an investigator who had conducted video surveillance of Huerta.

In November 1986 the surety deposed Dr. Bills. Dr. Bills was shown a videotape of Huerta walking, driving, bending, stooping, and using a power saw and a hand saw to saw boards on a saw horse. After viewing the videotape Dr. Bills modified his opinion of Huerta’s restrictions, stating that Huerta could lift and carry up to forty pounds occasionally and that he could crouch occasionally.

At the continuation of the hearing in January 1987 Huerta was allowed to present testimony in rebuttal to the videotape. Mrs. Huerta testified that on the day following the sawing that was depicted on the videotape Huerta experienced increased pain and remained in bed most of the day. She also was asked questions about Huerta’s attempts to find employment with Dickinson Frozen Foods and Ore-Ida after the October hearing. The Commission sustained objections to this testimony on the ground that it was beyond the scope of proper rebuttal.

At the continuation of the hearing a consultant (Avila) from the Job Service of the Department of Employment in Payette testified for Huerta on rebuttal. Avila stated that she had met with Huerta and his wife approximately one month prior to the continuation of the hearing and had discussed with them employment possibilities with Ore-Ida. She received an application from Huerta for employment at Ore-Ida but considered his chances to be limited. She admitted that Job Services had been instructed by Ore-Ida to screen all applicants for employment to make sure that they did not have any back problems.

Based on the testimony of Montgomery and Stewart, the panel evaluation and the modified evaluation of Dr. Bills, the Commission found that Huerta was capable of performing light duty work or work at the lighter end of the medium category. The Commission also found that jobs within these categories were available within a reasonable area from Huerta’s home. The Commission concluded that Huerta had not sustained his burden of proving that he fell in the odd-lot category or that he was totally and permanently disabled. The Commission found that Huerta suffers a partial permanent impairment of thirty percent of the whole person, with five percent attributable to his previous back surgery and five percent attributable to his knee problem, resulting in a permanent partial impairment of twenty percent of the whole person causally related to the 1984 accident. Taking into account the pertinent nonmedical factors, the Commission ordered that Huerta had a permanent-partial disability of forty percent of the whole person. ISIF was dismissed as a party to the action.

Huerta has appealed from the decision of the Commission. He raises as issues on appeal the limitation of his rebuttal evidence at the continuation of the hearing and the decision of the Commission that he failed to sustain his burden of proving that he was an odd-lot worker.

II.

THE COMMISSION WAS WITHIN ITS DISCRETION IN LIMITING REBUTTAL.

Huerta asserts that in the January 1987 continuation hearing the Commission should not have limited Mrs. Huerta’s testimony concerning Huerta’s job applications at Ore-Ida and Dickinson Frozen Foods. We disagree.

While testifying on behalf of Huerta during the initial phase of the hearing in October 1986, Montgomery stated that light production work was available in the Weiser area at Dickinson Frozen Foods and at Ore-Ida. No evidence was presented that Huerta had sought employment with either of these employers. Huerta and his wife testified as rebuttal witnesses in the October hearing. Huerta’s attorney stated that he had no further rebuttal. The Commission then continued the hearing in accordance with its rules for the taking of depositions. Huerta’s attorney stated that he did not intend to take any further depositions. ISIF indicated that it intended to take no further depositions and renewed its motion to dismiss and for non-suit. ISIF argued in support of its motion that for Huerta to qualify for odd-lot treatment it was incumbent upon Huerta to show that he was unemployable. ISIF contended that Huerta had done nothing to seek employment other than attempting to obtain employment from the employer in this case. ISIF stated that the testimony in the hearing had shown that there were jobs in the general area that Huerta could perform. The Commission took the motion under advisement and recessed the hearing.

When the hearing reconvened in January 1987, the depositions taken by the surety in the interim were admitted in evidence. Mrs. Huerta was then called as a witness for her husband. After she had testified about the circumstances portrayed in the videotape, Mrs. Huerta was asked:

Q. Now, at the earlier hearing, there was testimony received concerning possible employment for Juan at Ore-Ida and Dickinson Frozen Foods. Following that hearing, did you accompany your husband to either of those employers?

The ISIF and the surety objected on the ground that the information requested was outside the scope of proper rebuttal. The objection was sustained. The Commission then allowed Huerta to make an offer of proof of the testimony of Mrs. Huerta. During the offer of proof Mrs. Huerta testified as to what she and her husband had been told at Ore-Ida. An objection was made that this was hearsay. Mrs. Huerta also identified a letter from Dickinson Frozen Foods. An objection was made that this was also hearsay. The Commission sustained the objections.

The Commission’s rules of procedure provide that after the submission of depositions following a hearing, “rebuttal evidence may be submitted by any party upon motion accompanied by a showing of the necessity for the presentation of such evidence.” Rules of Practice & Procedure Under Workmen’s Compensation Law, IX(c) (Rev.1985).

This Court has consistently held that proceedings in worker’s compensation cases must be as summary as possible, but must be fair and do substantial justice to all parties involved. Hite v. Kulhenak Building Contractor, 96 Idaho 70, 72, 524 P.2d 531, 533 (1974). It is within the discretion of the Commission whether to allow rebuttal evidence at the continuation of a hearing following the submission of depositions. Cf., Rosenberg v. Toetly, 94 Idaho , 489 P.2d 446, 452 (1971). We note that Huerta made no motion accompanied by a showing of the necessity, for the presentation of Mrs. Huerta’s testimony, concerning the contacts that Huerta made with Ore-Ida and Dickinson Frozen Foods after the October 1986 hearing. In any event, the refusal to allow Mrs. Huerta’s testimony was not an abuse of the Commission’s discretion. If Huerta proposed to rebut Montgomery’s testimony concerning the availability of employment for him, this was evidence that he should have presented at the October hearing. To the extent that Huerta proposed to rebut the testimony of Stewart concerning the availability of employment for him, he had that opportunity at the October hearing. Nothing in the depositions addressed the issue of available employment. The testimony of Mrs. Huerta concerning Ore-Ida and Dickinson Frozen Foods was not in rebuttal to anything in the depositions. The Commission did not abuse its discretion in rejecting the proposed rebuttal testimony of Mrs. Huerta.

III.

HUERTA DID NOT ESTABLISH A PRIMA FACIE CASE THAT HE WAS AN ODD-LOT WORKER.

Huerta asserts that he established a prima facie case that he was an odd-lot worker. We disagree.

This is not one of those cases where the claimant has made out a prima facie case as a matter of law, because “the evidence is undisputed and is reasonably susceptible to only one interpretation.” Lyons v. Industrial Special Indemnity Fund, 98 Idaho 403, 407 n. 2, 565 P.2d 1360, 1364 n. 2 (1977). Here, the evidence of Huerta’s employability was in dispute. Therefore, Huerta’s burden of proof in attempting to establish a prima facie case of odd-lot status was to prove the unavailability of suitable work. Gordon v. West, 103 Idaho 100, 104-05, 645 P.2d 334, 338-39 (1982). Odd-lot status is a factual determination within the discretion of the Commission. We will sustain the Commission’s finding on this issue, if it is supported by substantial competent evidence. Kindred v. Amalgamated Sugar Co., 114 Idaho 284, 291, 756 P.2d 401, 408 (1988).

The nub of Huerta’s position is that the testimony of Montgomery and Stewart did hot establish that Huerta could have become employed, only that there was potential employment available for him. We reject Huerta’s attempted distinction. It was Huerta’s burden to bring himself within the odd-lot category. Whether he did so through his own testimony of his efforts to find employment, or whether he relied on the efforts of others on his behalf, the burden was his.. Until he proved a prima facie case that he was an odd-lot worker, the burden to prove his employability did not shift to the surety and ISIF. Gordon v. West, 103 Idaho at 104, 645 P.2d at 338 (1982). The findings of the Commission indicate that Huerta did not carry this burden. There is substantial competent evidence to support these findings.

Huerta asks us to overrule Gordon v. West to the extent that it requires a showing that a claimant seeking odd-lot status has attempted other employment. We decline to follow this suggestion. However, we do consider it appropriate to clarify what efforts are necessary to fulfill the burden established by Gordon.

In Gordon the Commission found that the claimant was not capable of performing the physical activities required for driving a truck, the job he had at the time of his injury. This Court concluded that the evidence did not establish as a matter of law that the claimant “was probably unemployable in any occupation, as was the situation in Lyons.” 103 Idaho at 104, 645 P.2d at 338 (1982). We held that it was the claimant’s burden under those circumstances “to prove the unavailability of suitable work in attempting to establish his alleged total disability.” Id. We pointed out that the claimant’s efforts to obtain employment after his injury were directed toward truck driving but that the pain he suffered while attempting to drive a truck caused him to cease these efforts. We noted that the record did not disclose “that Gordon attempted to obtain or was denied any other suitable employment which he might be capable of performing.” Id. It was with this background that the Court in Gordon then set the standard to which Huerta objects:

A claimant must do more than assert that he cannot perform his previous type of employment in order to qualify as an “odd-lot” worker. As in the Lyons case, he must show what other types of employment he has attempted. The commission, as the factfinder, must consider whether the claimant has tried and could not perform other work. In the absence of such a showing, claimant failed to establish that there was no suitable occupation available to him. (Emphasis in original.)

103 Idaho at 104-05, 645 P.2d at 338-39.

The reference in Gordon to Lyons as a case in which a claimant asserting odd-lot status was required to show what other employment he had attempted is puzzling. There is no reference in Lyons to other types of employment that the claimant had attempted. In Lyons, after noting that it was undisputed that the claimant could not perform the heavy manual labor which had been his employment before his injury, the Court stated that if the claimant were employable at all “it must be at some type of light work.” Lyons, 98 Idaho at 406, 565 P.2d at 1363 (1977). The only reference to light work in the opinion is the comment that the claimant lived “in a small mountain community where the opportunities for light work are limited.” 98 Idaho at 407, 565 P.2d at 1364. The next statement in the opinion is: “Therefore, [ISIF] must show that some kind of suitable work is regularly and continuously available to [the claimant].” Id.

Although Lyons was not authority for the requirement set forth in Gordon that a claimant who is seeking odd-lot status must show what other types of employment he has attempted, its companion case issued a week later and that directly follows Lyons in the Idaho Reports is authority for this requirement. Francis v. Amalgamated Sugar Co., 98 Idaho 407, 565 P.2d 1364 (1977). In Francis this Court noted that the claimant testified that he had been unable to do the moderate to heavy lifting necessary for performance of his former work. After stating that the claimant had not found permanent employment, the Court said: “He has discontinued the types of employment that he has attempted which involved bench or chair work because he has experienced pain in his lower back and legs after prolonged sitting.” 98 Idaho at 409, 565 P.2d at 1366. In retrospect, it was Francis and not Lyons that should have been cited in Gordon for the requirement that there be a showing of other types of employment that had been attempted. In Francis the Court considered “the testimony concerning [the claimant’s] potential for finding work that he can perform” as one of the circumstances that caused the Court to conclude as a matter of law that the claimant had made out a prima facie case that he should be an odd-lot worker. Id. This statement appears to refer to the claimant’s attempts to perform other types of employment.

In Nielson v. State Industrial Special Indemnity Fund, 106 Idaho 878, 881, 684 P.2d 280, 283 (1984), this Court pointed out in sustaining the Commission’s finding of odd-lot status that although the claimant had not attempted other types of employment, he had sought employment unsuccessfully. This provides another means by which a claimant may satisfy the burden of proof set forth in Gordon.

In Bell v. Clear Springs Trout Co., 107 Idaho 568, 691 P.2d 1183 (1984), the claimant asserted that after two years of diligent effort, he was unable to secure regular and steady employment. He contended that the unavailability of an actual job for more than two years placed him in the odd-lot category. The findings of the Commission stated: “ ‘The claimant testified that in the period shortly before the hearing, he had been engaged in bar tending on a part-time basis. He also had been self-employed selling firewood which other individuals had cut for him. He had two short-term jobs which he was unable to retain.’ ” 107 Idaho at 570, 691 P.2d at 1185 (1984). The Commission found that the claimant had failed to sustain his burden of proving that he was an odd-lot worker. After noting that the burden was on the claimant to establish a prima facie case of odd-lot status, this Court concluded: “Although the evidence in this case is conflicting, the Commission’s findings in this matter are supported by substantial and competent evidence and will not be disturbed on appeal.” 107 Idaho at 571, 691 P.2d at 1186 (1984). This makes it clear that it is not just any efforts that will suffice to establish a prima facie case as an odd-lot worker. This Court has deferred to the Commission, so long as there is substantial and competent evidence to support the Commission’s decision on this issue.

There is evidence in the record here that there was employment available for Huerta that he was capable of performing. In establishing a prima facie case as an odd-lot worker, it was Huerta’s burden to prove the unavailability of suitable work. Huerta could have carried this burden by showing that he had attempted other work that he was capable of performing, or that he had searched for other work, and it was not available. It would have been sufficient for Huerta to have proved that he had used vocational counselors, employment agencies, or the Job Service to conduct searches for other employment. However, we leave to the Commission the weighing of the evidence produced by the claimant. We will not participate in weighing the evidence concerning the availability of employment, except to apply the substantial competent evidence rule.

We have also held that a claimant may be relieved of the burden of proof required in Gordon, if his efforts to find suitable employment would have been futile. Carey v. Clearwater County Road Dept., 107 Idaho 109, 113, 686 P.2d 54, 58 (1984). Here, the Commission did not find that efforts by Huerta to find suitable employment would have been futile. Instead, the Commission found there were jobs available for Huerta within the categories that he was capable of performing. There was substantial competent evidence to support this finding, and we affirm the Commission’s decision that Huerta did not establish a prima facie case that he was an odd-lot worker.

IV.

CONCLUSION.

We affirm the order of the Commission awarding Huerta permanent partial disability of forty percent of the whole person and dismissing ISIF as a party to the action.

Costs to respondents.

No attorneys fees on appeal.

SHEPARD, C.J., and BAKES, J., concur.