Marshall v. INDUS. COM'N OF STATE OF UTAH , 1984 Utah LEXIS 797 ( 1984 )

HALL, Chief Justice

(dissenting):

Plaintiff’s contentions of error attack the sufficiency of the evidence to support the order of the Commission. This Court’s standard of review in such cases is as was recently stated in Kaiser Steel Corp. v. Monfredi:¹

[T]he reviewing court’s inquiry is whether the Commission’s findings are “arbitrary and capricious” or “wholly without cause” or contrary to the “one [inevitable] conclusion from the evidence” or without “any substantial evidence to support them.” Only then should the Commission’s findings be displaced. [Bracketed language in original.]

The record before us contains substantial evidence to support the conclusion reached by the Commission that plaintiff’s 26 percent permanent partial impairment rating did not rise to the level of permanent total disability simply because it occurred at a time when plaintiff was 69 years of age and eligible for retirement.

Following plaintiff’s injury and subsequent surgery, his condition improved, and his doctor considered him ready for work. Both the medical panel and the attending physicians were in agreement that plaintiff’s condition had stabilized and that he was free from pain. The medical panel also observed that plaintiff’s “upper extremity motion was normal for age.” Furthermore, plaintiff was performing yard work and other household tasks.

Plaintiff’s injury occurred in January of 1980, and Dr. Lamb followed his condition closely over the next few months. On August 27, 1980, he observed: “He [plaintiff] did heavy work in the mine and probably shouldn’t return to this for a couple to three months yet.” During a subsequent examination, plaintiff advised Dr. Lamb that he was “in the process of retiring.”

The record adequately supports the conclusion that plaintiff’s decision to retire was voluntary and the natural result of his age rather than his inability to perform further work. His doctor simply suggested that he retire because of his age, and he did so. Plaintiff testified that miners customarily retire between the ages of 60 and 70. He further testified that upon his retirement he became the recipient of social security retirement benefits (as distinguished from disability benefits) and that he was also receiving a pension from his labor union.

I would affirm the order of the Commission.

HOWE, J., concurs in the dissenting opinion of HALL, C.J.

1 . Utah, 631 P.2d 888 (1981).