Marshall v. INDUS. COM'N OF STATE OF UTAH

681 P.2d 208, 1984 Utah LEXIS 797
CourtUtah Supreme Court
DecidedApril 5, 1984
Docket19153
StatusPublished
Cited by18 cases

This text of 681 P.2d 208 (Marshall v. INDUS. COM'N OF STATE OF UTAH) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marshall v. INDUS. COM'N OF STATE OF UTAH, 681 P.2d 208, 1984 Utah LEXIS 797 (Utah 1984).

Opinions

DURHAM, Justice:

This case is a writ of review from the Industrial Commission of the State of Utah. The appellant, Nolan W. Marshall, was employed by the defendant, Emery Mining Company, as a maintenance mechanic in a coal mine. On January 25, 1980, the appellant was leaving the mine in a minetrip, which is a trailer with wooden seats pulled by a tractor. The minetrip rolled over a large lump of coal and the plaintiff was bounced up and then down on the seat, injuring his back. The appellant sought medical treatment on January 28, receiving medication for pain. He attempted physical therapy, but discontinued the treatment because of additional pain. During this time the appellant continued to work, but stopped in early March. On March 17, 1980, the appellant underwent surgery, a two-space lumbar laminectomy, after a diagnosis of acute lumbar disc. The operation was successful in reducing the appellant’s pain, but in July the appellant’s doctor noted he was still in discomfort and recommended the appellant not return to mine work. The appellant was then 67 years old.

The appellant received temporary total disability payments from March 1, 1980, to November 14, 1980. On July 9, 1982, the appellant was notified that his application for rehabilitation training was denied by the Division of Rehabilitation Services because there was no “reasonable expectation that vocational rehabilitation services may benefit the individual in terms of employa-bility.” In October 1982, a medical panel reviewed the appellant’s file and determined that he had sustained a 10% permanent physical impairment as a result of the accident on January 25, 1980. The appellant had some previous physical impairment, and his combined impairment totaled 26%. The defendant State Insurance Fund is liable for 10% of that rating; the defendant Second Injury Fund is responsible for the remaining 16%. The findings of the medical panel were adopted by the administrative law judge, who denied permanent total disability status, but awarded workmen’s compensation benefits for the January 25, 1980 injury. The findings of fact stated that “it appears to the Administrative Law Judge that [the appellant’s] prime reason for being unemployed at the present time is age rather than physical impairment.” The defendant Industrial Commission affirmed the order of the administrative law judge. The appellant seeks reversal of the ruling and a determination that he is entitled to permanent total disability benefits.

In his brief the appellant asserts that the Industrial Commission erred in denying him permanent total disability benefits because of his age. He argues that the permanent total disability statute, U.C.A., 1953, § 35-1-67 (Supp.1983), does not require his physical impairment to be the primary factor in his disability. The defendants cannot point to a statutory requirement in rebuttal, but argue that case law establishes a pattern of a minimum percentage of loss of bodily function necessary to support a decree of permanent total disability. The defendants cite cases affirming denials of benefits to employees whose percentage of disability was greater than the appellant’s and conclude that a 26% impairment is insufficient for a determination of permanent total disability. Furthermore, the defendants allege the evidence shows that the appellant’s January 1980 injury had little affect on his employa-bility and that his decision to retire was voluntary.

At the outset, we note that the purpose of the worker’s compensation acts is “to secure workmen ... against becoming objects of charity, by making reasonable compensation for calamities incidental [211]*211to the employment_” Henrie v. Rocky Mountain Packing Corp., 113 Utah 415, 427, 196 P.2d 487, 493 (1948). This compensation is not in the form of damages for injury, as in a tort action, but in the form of payments to compensate for the loss of employability resulting from the injury. See, e.g., Northwest Carriers v. Industrial Commission, Utah, 639 P.2d 138 (1981); 2 Larson, The Law of Workmen’s Compensation § 57.11 (1983). Thus, the Utah worker’s compensation statutes key the amount of the weekly payment not merely to the medical nature of the injury, but to a percentage of the worker’s average weekly wages, reflecting the economic impact of the injury on the particular individual. See U.C.A., 1953, §§ 35-1-66, -67 (Supp.1983). With regard to permanent total disability claims, this Court has stated:

[A] workman may be found totally disabled if by reason of the disability resulting from his injury he cannot perform work of the general character he was performing when injured, or any other work which a man of his capabilities may be able to do or to learn to do ....

United Park City Mines Company v. Prescott, 15 Utah 2d 410, 412, 393 P.2d 800, 801-02 (1964) (emphasis added) (footnote omitted). Disability is the loss of ability to earn. See, e.g., Ashley v. Blue Bell Inc., Ala.Civ.App., 401 So.2d 112 (1981); Smith v. Carolina Footwear, Inc., 50 N.C.App. 460, 274 S.E.2d 386 (1981). Confusion occurs when the word “disability” is used to describe a medical condition more properly referred to as “impairment” or “physical impairment.” See Northwest Carriers v. Industrial Commission, supra, at 140 n. 3. For example, it would have been more accurate if the above quotation had read: “[A] workman may be found totally disabled if by reason of the impairment resulting from his injury he cannot perform work.” However, an undisputed physical impairment may not result in a disability. See, e.g., Matthews v. Industrial Commission, Colo.App., 627 P.2d 1123 (1980) (when a loss of taste and smell does not affect employability, there can be no award for disability); Tafoya v. Leonard Tire Co., 94 N.M. 716, 616 P.2d 429 (N.M.App.1980) (nondisabling pain is not compensable because physical impairment is not the same thing as disability); Winn Dixie Stores, Inc. v. Linthicum, Fla.App., 376 So.2d 909 (1979) (a lump on the side resulting from a work-related injury did not diminish the claimant’s earning capacity and thus an award of disability benefits was improper).

Disability is evaluated not in the abstract, but in terms of the specific individual who has suffered a work-related injury. An injury to a hand would not cause the same degree of disability in a teacher, for example, as it would in an electrician. Thus, in assessing the loss of earning capacity, a constellation of factors must be considered, only one of which is the physical impairment. Other factors are age, education, training and mental capacity. See Northwest Carriers v. Industrial Commission, supra, at 141; Morrison-Knudsen Const. Co. v. Industrial Commission, 18 Utah 2d 390, 424 P.2d 138 (1967). It is the unique configuration of these factors that together will determine the impact of the impairment on the individual’s earning capacity.

A few examples illustrate why this is so.

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Marshall v. INDUS. COM'N OF STATE OF UTAH
681 P.2d 208 (Utah Supreme Court, 1984)

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Bluebook (online)
681 P.2d 208, 1984 Utah LEXIS 797, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marshall-v-indus-comn-of-state-of-utah-utah-1984.