Reynolds v. Browning Ferris Industries

751 P.2d 113, 113 Idaho 965, 1988 Ida. LEXIS 26

• Court: Idaho Supreme Court
• Decided: February 22, 1988
• Docket: 16711
• Status: Published

Opinions

HUNTLEY, Justice.

Ron Reynolds, while working within the scope of his employment with Browning Ferris Industries, slipped beneath a moving garbage truck and was run over by the right rear wheels. Reynolds suffered, among other injuries, a dislocating hip fracture and a crushed left ankle.

The Industrial Commission entered its final Order on August 30, 1982, in which it awarded Reynolds permanent partial impairment of 5% as compared to the loss of the foot at the ankle and 30% as compared to the loss of the leg at the hip for injury to his right hip. The Commission also awarded Reynolds retraining benefits for a period not to exceed fifty-two weeks. The Commission further ordered that jurisdiction be retained “to determine the amount of the Claimant’s permanent partial disability, if said disability exceeds his impairment rating.”

Reynolds appealed the Commission’s Order to the Supreme Court in order to protect his right to receive a higher rating should his condition deteriorate in the future. This Court dismissed the appeal as unnecessary, noting:

... the Commission ha[s] retained jurisdiction pending:

(1) the completion of retraining and the subsequent final permanent disability rating and award, when the anticipated period of retraining extends beyond the five year period of limitations for the modification of ratings and awards, and (2) the setting of a final impairment rating in the case of a claimant whose medical condition is degenerative, when the worsening effects of the condition will probably manifest themselves over a period of time exceeding the five year period of limitations, and when the degeneration will cause the level of the claimant’s impairment to change.

Reynolds v. Browning Ferris Indus., 106 Idaho 894, 684 P.2d 296 (1984).

Following dismissal of the appeal, Browning Ferris requested a hearing to determine the extent of Reynolds’ permanent partial disability. Also, Reynolds had filed with the Commission on July 22,1983, an Application for Hearing pursuant to I.C. § 72-719, in order to obtain benefits as the result of a change of condition. Reynolds subsequently requested that a determination of his permanent disability rating be held in abeyance indefinitely, but the Commission denied his motion by its Order on September 6,1985. The Commission held a hearing to decide all remaining issues, including the extent of Reynolds’ permanent physical impairment and disability. In its Findings of Fact, Conclusions of Law, and Order, the Commission determined the following:

FINDINGS OF FACT

V

Based upon the evidence before it, the Commission finds that the Claimant continues to have permanent physical impairments of 5% as compared to the loss of a foot at the ankle and 30% as compared’ to the loss of a leg at the hip and that his impairments have not changed since the Commission’s Award of 1982. The Commission further finds that it is likely that the Claimant will require a total hip replacement at some time in the future, though it will not occur as soon as had been anticipated in 1982. It is possible that deterioration in the Claimant’s right hip may result in a change in his permanent impairment and therefore a change in his permanent disability.

CONCLUSIONS OF LAW

I

The Claimant has not experienced a change in the nature or extent of his permanent physical impairment since the 1982 Award. He continues to have a permanent physical impairment of 5% as compared to the loss of a foot at the ankle and 30% as compared to the loss of a leg at the hip. The Claimant is not entitled to a modification of the previous Award pursuant to § 72-719 Idaho Code.

II.

Since the Claimant has declined to participate in the retraining program which he was awarded in 1982 and does not desire to do so, it is appropriate to determine the extent of the Claimant’s permanent disability. § 72-428(6) Idaho Code. Permanent disability results when the actual or presumed ability to engage in gainful activity is reduced or absent because of permanent impairment and no fundamental or marked change in the future can be reasonably expected. § 72-423 Idaho Code. Evaluation of permanent disability is an appraisal of the injured employee’s present and probable future ability to engage in gainful activity as it is affected by the medical factor of permanent impairment and by pertinent non-medical factors. § 72-425 Idaho Code. It is appropriate to consider a change in wage-earning capacity in determining permanent partial disability. Baldner v. Bennett’s, Inc., 103 Idaho 458 [649 P.2d 1214 (1982)]. The Commission notes that the Claimant is regularly employed in advertising sales and has suffered no decrease in his wage-earning capacity as a result of his injury. The Commission concludes that the Claimant has failed to establish that his permanent disability exceeds his permanent partial impairment rating. The Claimant is not entitled to an award for permanent disability exceeding the amount previously awarded for his permanent physical impairment.

III

The Commission deems it appropriate to retain jurisdiction of this matter in order to consider whether, in the future, the Claimant suffers a change in the nature or extent of his permanent disability in order that benefits may be awarded in the future should the Claimant experience an increase in his permanent disability. Brooks v. Duncan, 96 Idaho 579 [532 P.2d 921 (1975)]; Reynolds v. Browning Ferris Industries, 106 Idaho 894 [684 P.2d 296 (1984)].

ORDER

IT IS HEREBY ORDERED, and this does order, that the Claimant is not entitled to a modification of the 1982 Award pursuant to § 72-719 Idaho Code.

IT IS FURTHER ORDERED, and this does order, that the Claimant’s permanent partial disability does not exceed the amount previously awarded him for permanent physical impairment.

IT IS FURTHER ORDERED that the Commission hereby retains jurisdiction of the above-entitled matter in order to award the Claimant additional benefits for permanent partial disability should the Claimant’s condition change in the future as a result of deterioration of his right hip and anticipated surgical procedures. (Emphases added).

Browning Ferris petitioned the Commission for reconsideration of the portion of the Conclusions and Order providing for retention of jurisdiction. Following oral argument, the Commission withdrew its decision and substituted therefor Findings of Fact, Conclusions of Law and Order on Reconsideration identical to the original ones except that all references to the Industrial Commission retaining jurisdiction over this case were deleted.

Reynolds now appeals, claiming that the Commission erred in refusing to retain jurisdiction over his case in order to award additional benefits for increased permanent partial disability based upon probable future changes in his condition or, in the alternative, Reynolds claims that the Commission should have based the present award upon an enhanced impairment and disability rating which reflects the medical probability of future increased impairment and disability.

The Commission determined that Reynolds was likely to require a total hip replacement at some time in the future, based upon the testimony of two orthopedic surgeons, Dr. Steven Rudd and Dr. Richard Gardner. Dr. Rudd had examined Mr. Reynolds on three occasions at the request of Browning Ferris’ insurer, and Dr. Gardner had been Mr. Reynolds’ treating physician since May, 1980. Both doctors agree that Reynolds had developed degenerative arthritis in his right hip and that the hip joint will continue to deteriorate to the point that Reynolds will require either a hip fusion or total hip replacement at some time in the future.

Dr. Rudd testified that future permanent physical impairment of Mr. Reynolds’ hip could range from 50 to 100 percent; Dr. Gardner testified that future permanent physical impairment of Mr. Reynolds’ hip could range from 50 to 75 percent. Neither physician could specify how many years it would be before Reynolds’ hip would totally deteriorate, but their combined estimates ranged between five to twenty years down the road.

Despite the testimony of the physicians, the Commission still deemed that it was appropriate to “determine the extent of the Claimant’s permanent disability,” since Reynolds had “declined to participate in the retraining program which he was awarded in 1982____” The Commission's rationale was based upon its interpretation of I.C. § 72-428(6):

Delay in rating. Following the period of recovery, a permanently disabled employee who has been afforded vocational retraining under a rehabilitation program shall be rated for permanent impairment only until completion of the vocational retraining program at which time he shall be rated for permanent disability, deducting from any monetary award therefor amounts previously awarded for permanent impairment only. (Emphasis added).

Under I.C. § 72-428(6), a claimant shall be rated for permanent disability upon the completion of his vocational retraining program. However, not all claimants participate in retraining programs and, even for those who do, emphasis must be given to the words “Following the period of recovery.”

In order to ascertain when the period of recovery is completed, it is necessary to go no further than the various worker’s compensation statutes. The recovery period draws to a close and a permanency rating shall be assessed when the condition is no longer progressive:

72-422. Permanent impairment.— “Permanent impairment” is any anatomic or functional abnormality or loss after maximal medical rehabilitation has been achieved and which abnormality or loss, medically, is considered stable or non-progressive at the time of evaluation. Permanent impairment is a basic consideration in the evaluation of permanent disability, and is a contributing factor to, but not necessarily an indication of, the entire extent of permanent disability. (Emphasis added).

72-423. Permanent disability. — “Permanent disability” or “under a permanent disability” results when the actual or presumed ability to engage in gainful activity is reduced or absent because of permanent impairment and no fundamental or marked change in the future can be reasonably expected. (Emphasis added).

The key language in the above statutes focuses on the fact that neither physical impairment nor disability is permanent until the point when no further deterioration or change can be expected. Both physicians testified that Reynolds’ condition was progressive. And since permanent impairment is a “basic consideration in the evaluation of permanent disability,” I.C. § 72-422, then the Commission erroneously relinquished jurisdiction over the future determination of Reynolds’ permanent disability. If it is apparent that Reynolds’ physical impairment is progressive, then it follows that the Commission cannot assess Reynolds’ permanent partial disability based solely upon his present level of impairment. Future progression in Reynolds’ physical impairment may play an important role in the evaluation of his future permanent partial disability and, thus, cannot be ignored.

In a situation where the claimant’s impairment is progressive and, therefore, cannot adequately be determined for purposes of establishing a permanent disability rating, it is entirely appropriate for the Industrial Commission to retain jurisdiction until such time as the claimant’s condition is nonprogressive. Horton v. Garrett Freightlines, Inc., 106 Idaho 895, 684 P.2d 297 (1984); see also, Brooks v. Duncan, 96 Idaho 579, 532 P.2d 921 (1975).

Browning Ferris argues that the Industrial Commission may retain jurisdiction only so long as it has made only temporary allowances and that there is no modifiable final award, based upon this Court’s decision in Brooks, supra.1 In Brooks we held:

[W]e feel that not only are I.C. §§ 72-407 and 72-607 [now I.C. §§ 72-706 and 72-719] inapplicable to the circumstances of this case, but that they do not set any public policy limiting the amount of time within which the Industrial Commission can retain jurisdiction after making a temporary allowance in order to make a final permanent award to an injured employee.

Although subsequently superseded by its second decision, the Commission’s initial decision specifically retained jurisdiction should Reynolds suffer a “change in the nature or extent of his permanent disability in order that benefits may be awarded in the future____” The Commission was obviously well apprised of the progressive nature of Reynolds’ impairment when it retained jurisdiction. In fact, the Commission even relied upon Brooks and Reynolds as its bases for retaining jurisdiction. The very fact that the Commission had retained jurisdiction in its initial decision reveals that its determination was not intended to be final, particularly when coupled with the fact that it also stated that Reynolds’ condition was progressive. In fact, whenever the Commission explicitly retains jurisdiction over a matter, that act by its very nature infers that there is neither a final determination of the case nor a final permanent award to the employee.

The Commission’s error lies in the fact that it attempted to assess Reynolds’ permanent partial disability based solely upon his present level of disability although it was fully aware that his condition was progressive.

Although it was entirely appropriate for the Commission to retain jurisdiction of Reynolds’ case, there is also another possible approach the Commission may appropriately utilize in order to determine his permanent partial disability rating. The authority for this alternative approach is found in I.C. § 72-425:

Permanent disability evaluation.— “Evaluation (rating) of permanent disability” is an appraisal of the injured employee’s present and probable future ability to engage in gainful activity as it is affected by the medical factor of permanent impairment and by pertinent nonmedical factors provided in section 72-430, Idaho Code. (Emphasis added).

Under I.C. § 72-425, the Commission can presently make an award for permanent disability based upon the injured employee’s “present and probable future ability to engage in gainful activity.” The Commission may thus estimate a claimant’s probable future disability and reduce it to present value for the purpose of making a final award which takes into account probable future changes in impairment. Thus, when the Commission estimates what the claimant’s future disability might be, it will in a sense be functioning much like any jury or trier-of-fact in a personal injury action.

Reversed and remanded for further proceedings consistent herewith, including the taking of testimony if necessary. Costs to appellant, no attorney fees awarded.

SHEPARD, C.J., BAKES and BISTLINE, JJ., and McFADDEN, J.Pro Tern., concur.

1 . Counsel for respondents, at oral argument, conceded that regardless of the outcome of the appeal, Reynolds remains entitled to medical services, appliances, and supplies pursuant to I.C. § 72-432, for which benefits there is no applicable statute of limitations. See, Rohnert v. Amalgamated Sugar Co., 95 Idaho 763, 519 P.2d 432 (1974), and Steinebach v. Hoff Lumber Co., 98 Idaho 428, 566 P.2d 377 (1977).