Vassar v. J.R. Simplot Co.

5 P.2d 475, 5 P.3d 475, 134 Idaho 495, 2000 Ida. LEXIS 56
CourtIdaho Supreme Court
DecidedJune 29, 2000
DocketNo. 25120
StatusPublished

This text of 5 P.2d 475 (Vassar v. J.R. Simplot Co.) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vassar v. J.R. Simplot Co., 5 P.2d 475, 5 P.3d 475, 134 Idaho 495, 2000 Ida. LEXIS 56 (Idaho 2000).

Opinion

WALTERS, Justice.

This is an appeal from the Industrial Commission’s determination of disability resulting from Cindy Vassar’s 1994 industrial injury. Vassar appealed from the Commission’s determination. We affirm.

BACKGROUND AND PRIOR PROCEEDINGS

J.R. Simplot Company hired Vassar as a truck driver in August 1994. On October 14, 1994, Vassar slipped on a snowy step while checking the refrigeration unit on her truck and sustained an injury to her neck that caused bilateral hand numbness.

Vassar received total temporary disability benefits from Simplot through June 1995 when Simplot determined that she had become medically stable. In March 1996, Vassar filed a complaint with the Industrial Commission. She sought total temporary benefits from the time that Simplot stopped paying, together with medical and partial permanent disability benefits. Following a hearing and a period of post-hearing discovery, the referee entered a decision that was adopted in part by the Industrial Commission and apparently modified over the dissent of Commissioner Kerns. The Commission found that Vassal- had suffered a neck injury that caused permanent physical impairment equal to 14% of the whole person. The Commission also determined that Vassar suffered disability in excess of physical impairment and found that overall she had suffered a 25% disability. This finding rejected Vassar’s expert testimony that she had suffered a 58% overall disability. Vassar appealed from this determination.

In support of its determination, the Commission made the following findings of fact:

27.Permanent Disability. Douglas Crum, Claimant’s vocational expert, opined that Claimant has an overall disability of 58%. Defendant’s expert, Terry Montague, testified that he does not give disability ratings, but questions the extent of Claimant’s disability. The Commission considered the following pertinent medical and non-medical factors.
28. Claimant was bom on February 7, 1952, and was 45 years old at the time of hearing. She is a 1970 high school graduate with average grades. Claimant grew up on a farm and has done work for her father throughout the years. She has training in cosmetology (which training she has not used) and about 22 years of truck driving experience. Claimant lives in the Treasure Valley and has access to the largest labor market in Idaho.
29. Claimant is limited to light-sedentary work and should not perform repetitive work involving her hands that would aggravate median nerve entrapment. She can sit or stand up to 60 minutes at a time up to six hours a day, or walk up to 7 hours a day. There is a disagreement whether these restrictions alone restrict Claimant from truck driving. In 1991, after Claimant complained that she could not tolerate truck driving, Dr. Schneider told Claimant that she could not return to work as a truck driver because of her low-back injury.[1] Claimant testified that she did return to driving and used lumpers[2] for a while. However, the record does not clearly establish that Claimant worked continuously as a truck driver. In addition, Claimant drove a beet truck during the 1996 harvest. Mr. Montague testified that that work is physically demanding and involves long hours of sitting. He was surprised to learn that she did the work.
30. Mr. Montague further testified that there were numerous jobs available that Claimant could perform within the $5.00 and $6.00/hour range. Claimant was earning $506.50/week, including a benefits package, or $12.66/hour, at the time of her 1994 industrial accident. She had just begun making that salary and did not advise [497]*497Simplot of her low-back restriction from track driving. Moreover, given Claimant’s restrictions after her 1991 accident and her need to use lumpers, it is unlikely that Claimant has earned $26,000.00/year, the salary of a long-haul truck driver, since her low-back injury. However, Claimant cannot now return to any track driving at all. Thus, she has experienced far more limited access to the labor market and lower income than that relied upon by Mi*. Crum in rendering his opinion. Accordingly, the Commission finds that Claimant suffers a disability of 25% of the whole person, inclusive of her physical impairment rating attributable to her 1994 industrial accident. This equals $26,812.50.

Vassar argues that the Commission should not have considered her wage track record or her prior back injury. According to Vassar, the Commission must accept the wage that Vassar was earning at Simplot as the quantification of her pre-injury ability to engage in gainful activity.

STANDARD OF REVIEW

On appeal from the Industrial Commission, this Court exercises free review of the Commission’s legal conclusions. Reiher v. American Fine Foods, 126 Idaho 58, 878 P.2d 757 (1994). However, this Court will not disturb the Commission’s factual findings that are supported by substantial and competent evidence. Id.

DISCUSSION

Idaho Code § 72-425 provides that “ ‘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 as provided in section 72-430, Idaho Code.” Accordingly, when the Commission determines the permanent disability of a claimant, the Commission is required to examine the factors provided in § 72430. In Baldner v. Bennett’s Inc., 103 Idaho 458, 649 P.2d 1214 (1982), this Court held that in some circumstances the Commission could consider a comparison of the claimant’s pre-injury and post-injury incomes as relevant evidence. However, such a comparison is merely one of the relevant factors to be considered. Loya v. J.R. Simplot, 120 Idaho 62, 813 P.2d 873 (1991). As this Court noted in Loya, consideration of only the claimant’s decrease in earning capacity would require reversal. Consideration of a comparison between pre-injury and post-injury earning capacity is permissible only if the Commission also finds that the comparison accurately reflects the claimant’s ability to engage in gainful activity. Bennett v. Clark Hereford, Ranch, 106 Idaho 438, 680 P.2d 539 (1984); McClurg v. Yanke Machine Shop, Inc., 123 Idaho 174, 845 P.2d 1207 (1993). It is implicit in the Commission’s findings of fact in this case that it did not believe that Vassar’s pre- and post-injury wages accurately reflected her reduced ability to engage in gainful activity.

Vassar argues that I.C. § 72-102(30) requires that the Commission base its determination upon the Claimant’s I.C. § 72419 average weekly wage. Idaho Code § 72-102(30) provides that ‘“Wages’ and “wage earning capacity prior to the injury ...

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Related

Reiher v. American Fine Foods
878 P.2d 757 (Idaho Supreme Court, 1994)
Bennett v. Clark Hereford Ranch
680 P.2d 539 (Idaho Supreme Court, 1984)
Baldner v. Bennett's, Inc.
649 P.2d 1214 (Idaho Supreme Court, 1982)
Loya v. J.R. Simplot Co.
813 P.2d 873 (Idaho Supreme Court, 1991)
McClurg v. Yanke Machine Shop, Inc.
845 P.2d 1207 (Idaho Supreme Court, 1993)

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Bluebook (online)
5 P.2d 475, 5 P.3d 475, 134 Idaho 495, 2000 Ida. LEXIS 56, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vassar-v-jr-simplot-co-idaho-2000.