Dye v. Industrial Commission ( 1975 )

OPINION

HAIRE, Chief Judge.

On this review by certiorari the petitioner questions the sufficiency of the evidence to support the Commission's finding which limited his loss of earning capacity to 63.-78%.

As a result of his industrial injury the petitioner had lost his left thumb and a portion of his left leg by a below-the-knee amputation. Petitioner particularly complains of that portion of the Commission’s findings which found that:

. with a reasonable amount of effort applicant [petitioner] should be able to obtain light type employment based upon a 40 hour week at $1.40 an hour, which would provide him with an average monthly wage of $242.65 based upon salaries existent at the time of his injury.”

Petitioner’s contentions on appeal are best set forth in his reply brief as follows:

“It is not our position that the petitioner is unemployable. It is entirely possible, as found by the Referee, that petitioner may ‘occasionally’ be employed.

“Our position, simply, is that it is illogical to conclude that the [petitioner] can ‘odd job’ it around in various fields, and still work eight hours per day, five days per week, fifty-two weeks per year as found by the Referee.”

The reference to the referee’s finding that petitioner might “occasionally” be employed is based upon a portion of the referee’s finding 1(g) which was adopted as a portion of the Commission’s finding 3(g), as follows:

“However, evidence indicates that work occasionally becomes available as a parking lot attendant, night watchman, security guard, light bench work, work in self service gas stations, and answering telephones, which at the time of injury would have paid a salary of $1.40 an hour.”

If the referee’s use of the word “occasionally” in his finding is interpreted to mean that petitioner is able to engage in full time continuous work and that the evidence indicates that full time work of a nature indicated is “occasionally” available to him, then we hold that the evidence does not support such a finding. On the other hand, if the finding is interpreted as suggested by the petitioner, then we find a basic inconsistency in the referee’s finding of work becoming occasionally available, and the conclusion that such work would be available to' petitioner on a full time, 40 hour per week, 52 week per year basis.

It would serve little purpose to set forth the evidence in detail in this decision. Suffice it to say that we have reviewed the record and agree with petitioner that while the evidence does support the Commission’s finding that work of the nature described does become “occasionally” available, the evidence will not support the Commission’s finding that such work would be available to a person with petitioner’s disabilities on a full time 40 hour per week, 52 week per year basis.

The award is set aside.

EUBANK, J., concurs.