Gordon v. West

BISTLINE, Justice,

dissenting:

My concern is that those who practice workmen’s compensation law will find this case indistinguishable from the recent cases of Lyons v. Industrial Special Indem. Fund, 98 Idaho 403, 565 P.2d 1360 (1977) and Francis v. Amalgamated Sugar Co., 98 Idaho 407, 565 P.2d 1364 (1977). The Court’s opinion does not deign to illustrate the distinction, or even make the attempt. The Court’s failure to follow such recent precedent is indeed perplexing, but its failure to distinguish these cases is totally inexcusable. Unfortunately, it comes after a string of workmen’s compensation cases wherein the Court has risen to commendable heights in this particular field, the most recent of which is Sines v. Appel, 103 Idaho 9, 644 P.2d 331 (1982) (holding that it is within the power of the Industrial Commission under I.C. § 72-719(3) to review a previous workmen’s compensation award in a case in which the circumstances demonstrate that the award was manifestly unjust).

Like the claimant in Lyons, Mr. Gordon is obviously “a man of star-crossed fortune.” He has had a long succession of injuries, a description of which is adequately set forth in the Court’s opinion. Mr. Gordon’s luck, however, appears to be a great deal worse than that of Mr. Lyons. In Lyons, this Court held that the evidence as a matter of law placed the claimant within the odd lot category and remanded the case for further proceedings. A similar result was reached in Francis. In this case, however, despite the fact that the factual situation is even more compelling than in Lyons or Francis, this Court ignores those recent cases and affirms the Commission’s finding of a 15% disability.¹

In Francis, the Court held that the following facts established as a matter of law that the claimant had made out a prima facie case that he should be placed in the odd lot category:

“The claimant in this case has the equivalent of a twelfth grade education. He is now in his mid-forties. His work history has been in construction or heavy equipment repair and has always involved heavy lifting. However, since the time of the industrial accident he testified that he has been unable to do the moderate to heavy lifting necessary for performance of his former work. Since that time he has not found permanent employment. He has discontinued the types of employment that he has attempted which involved bench or chair work because he has experienced pain in his lower back and legs after prolonged sitting. His efforts at vocational rehabilitation have not been successful. A Department of Employment job counselor testified upon the claimant’s behalf that there was no stable labor market for the type of work that the claimant could perform, although he did not preclude the possibility that the claimant might be retrained for work in other fields.” 98 Idaho at 409, 365 P.2d at 1366.

Similarly, in Lyons the Court relied on the following evidence to conclude as a matter of law that the claimant fell within the odd lot category:

“He is a 48-year-old male with a ninth-grade education. His vocational training and skills are confined solely to heavy manual labor, which he can no longer perform. As a result of his injuries, he experiences almost constant pain in both of his legs, his left arm, and the cervical, thoracic, and lumbar areas of his spine. He testified that the pain increases if he either sits in one place or walks around for any length of time. Appellant is also restricted in his ability to lift objects and to use his arms. He lives in a small mountain community where the opportunities for light work are limited. Therefore, the Fund must show that some kind of suitable work is regularly and continuously available to appellant.” 98 Idaho at 407, 565 P.2d at 1364 (emphasis added).

Quite evidently, the Court has simply avoided any attempt at distinguishing the indistinguishable. In fact, Mr. Gordon is at a significantly more advanced age than claimants Lyons and Francis. He is, on the record, a 57-year-old male with the equivalent of a high school education. He was employed as a lumber truck driver from approximately 1946 until January 8,1976— the date of the accident. As a result of the accident, he experiences almost constant pain in his left arm and shoulder. Since the time of the accident he has been unable to return to his former employment because he cannot pass the physical examination necessary to receive a card from the Interstate Commerce Commission. He has not been able to find other permanent employment. He has had to discontinue the employment he has attempted because of the physical difficulties and pain that resulted.² Mr. Gordon is restricted in his ability to lift objects and to use his arm. He lives in a small mountain community (Sandpoint) in which the opportunities for light work are, without doubt, limited. He was turned away by the employment office when he sought vocational rehabilitation.

In other cases a less vacillating court has held that such facts demonstrate as a matter of law that the claimant has made out a prima facie case that he should be placed in the odd lot category. See Lyons, 98 Idaho at 407, 565 P.2d at 1364; Francis, 98 Idaho at 409, 565 P.2d at 1366. There is no testimony in the record that Mr. Gordon could work for a full day at a time in a sedentary-type job, and no testimony that there is a healthy labor market for such jobs for male workers in Sandpoint, Idaho, or that there was training available for such jobs. Cf. Reifsteck v. Lantern Motel & Cafe, 101 Idaho 699, 619 P.2d 1152 (1980) (holding that such evidence was sufficient to support the Commission’s finding that the claimant did not fall into the odd lot category and thus was only entitled to a 15% disability rating). Therefore, the burden properly fell on the Fund to demonstrate that there was some kind of suitable work regularly and continuously available to the claimant. Lyons, 98 Idaho at 407, 565 P.2d at 1363; Francis, 98 Idaho at 409-10, 565 P.2d at 1366. It was that exact reasoning which I understood motivated our decision in Lyons. Certainly, it is not the claimant who knows the labor market and has access to sources beyond the ken of a working claimant. And it is not the claimant who has the resources to establish the condition of the labor market for his remaining capabilities, if any. To hold otherwise under the facts of this case, would be to require that the claimant “try to prove the universal negative of not being employable at any work.” 98 Idaho at 407, 565 P.2d at 1364. We specifically declined to impose such a burden on claimant in Lyons, stating that “[i]t is much easier for the Fund to prove the employability of the appellant for a particular job ...” id. at 406, 565 P.2d at 409, and if there be in this case some cogent reason for imposing such an unreasonable burden on Gordon, it totally escapes me, and no attempt has been made at any enlightenment.

In Lyons, the Commission found that the claimant’s most recent injury was not totally disabling. It also noted that the claimant’s previous injuries were not disabling since he had engaged in gainful employment after each of these injuries. After reviewing the record in Lyons, the Court concluded: “The Commission then apparently concluded that since the 1972 injury was not by itself totally disabling, and since the pre-1972 injuries had not been disabling in the past, the appellant was not totally and permanently disabled.” 98 Idaho at 406, 565 P.2d at 1363. The Court rejected the Commission’s approach, stating:

“This piecemeal evaluation of appellant’s injuries is unacceptable.

“An evaluation of total disability requires an appraisal of the claimant’s present and probable future ability to sell his services in a competitive labor market. I.C. § 72-425.... [T]he effect of successive injuries may be greater than the sum of the impairments resulting from each. The Commission must therefore evaluate appellant’s ability to find employment in the future after considering all of his physical impairments, not just the most recent one.

“In addition to the medical factor of permanent impairment, the Commission must also consider nonmedical factors such as age, sex, education, economic and social environment, training, and usable skills. I.C. § 72425. The Commission’s approach does not adequately consider the effect of these nonmedical factors on appellant’s ability to obtain employment.” Id. (Emphasis in original.)

An approach remarkably similar to that in Lyons was employed by the Commission in this case. In its Findings of Fact, the Commission found that Mr. Gordon’s disability had been rated as “a total of 15% of the whole man.” Then the Commission reviewed the previous injuries of the claimant and stated: “After each of these injuries, the Claimant returned to his usual occupation as a heavy truck driver. The only difficulty he ever experienced was difficulty in using his right foot to operate the throttle of the truck. However, by building up the floorboard of the truck, he was able to drive the truck without difficulty despite his fused right ankle.” The Commission also found that Mr. Gordon “is not able to work regularly in his former occupation as a log or lumber truck driver,” but that he “is not disabled for other less physically demanding occupations.” (Presumably it may have had in mind selling pencils on the streets of Sandpoint.) Based on these findings the Commission concluded that “[a]s a direct result of said accident and injury, the Claimant suffered a permanent partial disability of 15% of the whole man Thus, as in Lyons, nothing in the record demonstrates that the Commission considered the effect of the combination of all of the claimant’s physical impairments when taken together. Because the record demonstrates that the approach employed by the Commission in this case was the equivalent of that used in Lyons, it is implicit that the Commission “equated the rating of the claimant’s permanent impairment with its rating of his disability without explicit consideration of the types of employment the claimant can now perform.” Francis, 98 Idaho at 408, 565 P.2d at 1366. To hold otherwise would leave us with no way to determine whether the Commission did in fact follow the mandate of the legislature in evaluating a claimant’s permanent disability. See I.C. § 72-425.

I cannot agree with the Court that the Commission’s decision is supported by the evidence. There is absolutely no evidence in the record to support the Commission’s conclusion that Mr. Gordon is not disabled for less physically demanding jobs. In fact, the evidence demonstrates otherwise.

In finding sufficient evidence to support the findings of the Commission, the Court states that the testimony of Dr. Lynch “indicated that if capsulitis is diagnosed early and treated appropriately it would last, at the most possibly six months.” What Dr. Lynch actually stated was that capsulitis “can be incapacitating depending on how severe it is, but if it’s gotten out early and treated appropriately the vast majority of it clears up completely.” Dr. Lynch also stated, when asked what he thought as to how long capsulitis might last if it was “properly followed through and treated,” that he would expect the capsulitis to last “six months, possibly, at the most.” Dr. Lynch, however, said that while he could diagnose the problem, he could not treat it, so he referred Mr. Gordon to an orthopedic surgeon. Thus, Dr. Lynch had no idea of whether Mr. Gordon’s condition had in fact improved, and his testimony of what he would expect under optimum conditions clearly does not support the Commission’s findings.

The Court also states that Dr. Lynch “testified as to a report of June 13, 1977, not contained in the record, which indicated that Gordon probably would be able to return to gainful employment when his capsulitis ended.” A careful review of the record reveals that Dr. Lynch testified at one point that: “I have in my report of June 13, he persisted in having left shoulder pains, and I believe it is well for the patient to see an orthopedic surgeon.” Later in the deposition, after Dr. Lynch stated that he would expect claimant’s capsulitis to last six months if it were properly treated, the following exchange took place:

“Q. All right, and that would be in keeping with the comment that you made in your June 13, 1977 letter that his shoulder problem could be corrected and he probably will be able to return to gainful employment, that’s what you had in mind?

A. Correct.”

It is manifestly unfair to conclude from this exchange that Dr. Lynch’s June 13 report, which is not in the record, stands for the proposition that Mr. Gordon would probably be able to return to gainful employment. Those are the words of the cross-examining attorney and are not consistent with Dr. Lynch’s previous testimony concerning what the June 13 report contained. Even if such a conclusion were appropriate, what Dr. Lynch thought or expected when he last examined Mr. Gordon is irrelevant. Dr. Lynch testified that “[ujsually if there is a real severe problem [with capsulitis] I’ll refer this to an orthopedic surgeon.” He also stated that he could diagnose, but not treat the problem. Dr. Lynch did refer Mr. Gordon to an orthopedic surgeon and was not thereafter involved in the treatment of Mr. Gordon’s capsulitis. Thus, his testimony as to what he thought or expected is not competent evidence to sustain the Commission’s findings.

The Court does acknowledge that Dr. Blaisdell testified “that he told the plaintiff that there was nothing that could be done to make him employable.” The Court, however, proceeds to relegate this testimony to oblivion by saying that “this statement referred to claimant’s inability to pass the Interstate Commerce Commission test, in relation to truck driving activities.” I do not see the doctor’s statement as intended to be so limited. In response to a question as to what opinions or knowledge he gained in his October 11, 1977, examination of Mr. Gordon, Dr. Blaisdell answered:

“First of all, his right ankle was not preventing him from returning to work as a truck driver. However, his shoulder, namely the left shoulder at that time was not significantly sympomatic and a pinched nerve in the neck had responded quite well to treatment. The patient told me he could work at that time if he could pass the exams. But said he could not pass the Interstate Commerce Commission exam for a truck driver and that Brand S and Louisiana Pacific would not hire him because of his history and disabilities.

“I indicated that at that time his condition was permanent and stationary and there was nothing that could be done to make him employable.” (Emphasis added.)³

Clearly, Dr. Blaisdell’s statement does not support the Commission’s finding that Mr. Gordon “is not disabled for other less physically demanding occupations.” At best it supports the Commission’s finding, which I do not dispute, that Mr. Gordon “is not able to work regularly in his former occupation as a log or lumber truck driver.”

There is no dispute that after the largely successful operation to remove the osteophyte, Mr. Gordon continued to have problems with his shoulder and arm and that those problems were directly related to the industrial accident. Mr. Gordon was referred by Dr. Lynch to an orthopedic surgeon for the treatment of his shoulder and arm problems. Dr. Blaisdell, the orthopedic surgeon with whom the claimant did consult, testified that Mr. Gordon had a 15% physical impairment based on range of motion or the lack thereof as a result of the most recent industrial accident. He further testified that when all Mr. Gordon’s physical impairments are combined they are equal to 25% of the whole man. Nothing in the doctor’s testimony contradicts in any way Mr. Gordon’s testimony that he could not work, nor was any testimony offered which contains even the slightest suggestion that Mr. Gordon is able to work. The only testimony presented to the Commission was that of the claimant and his physicians and this testimony established that Mr. Gordon could not work. Neither the employer nor the Fund presented any additional witnesses.

The Court also states that the Commission “must consider whether the claimant has tried and could not perform other work .... ” However, it does not appear that the Commission did so. The only considerations which appear in the record are a consideration of the claimant’s past injuries— which injuries are negated by the Commission — and a consideration of the claimant’s impairment rating of 15%. The uncontradicted testimony of the claimant was that he attempted to get vocational rehabilitation through the employment office, but that he was turned down. In addition, Mr. Gordon’s uncontradicted testimony was that he tried to perform other less demanding truck driving jobs, but that he could not perform such jobs because of the pain that resulted. Nowhere in the record does it appear that the Commission considered this testimony. Nor is there any indication that the Commission considered any nonmedical factors such as age, sex, education, economic and social environment, training, and usable skills, as required by I.C. § 72-425 and Lyons, supra. This sort of piecemeal evaluation of a case, was the approach rejected by the Court in Lyons, and I can see no reason why we should condone it in this case.

The evidence readily demonstrates that, as a matter of law, the claimant has made out a prima facie case that he falls into the odd lot category. This conclusion is mandated by the Court’s holdings in Lyons and Francis. The Court, however, does not distinguish these recent cases. In a neat lateral arabesque, it side-steps the entire issue by finding, in essence, that “there was substantial competent evidence to sustain the Commission’s finding that after December 24, 1977, claimant’s permanent disability caused by the 1977 accident did not exceed his permanent impairment rating of 15% of the whole man.”⁴ I would reverse this case and remand it for further proceedings in which the Fund would have the burden of showing that there is some kind of suitable work regularly and continuously available to the claimant. See Lyons and Francis, supra.

I dissent.

1 . The Court does cite Lyons for the general propositions of law contained therein, but at no point does it distinguish either Lyons or Francis. The court’s failure to explain why the result in this case is different than that reached in Lyons and Francis, may indeed puzzle the trial bench and the Commission. It certainly leaves me guessing.

2 . As the Court notes, Mr. Gordon attempted to work as a truck driver following the accident— the only skill the record reveals Mr. Gordon possesses. Mr. Gordon testified that he tried to work for L. C. Walson on two different occasions. The first job was driving a belly dump truck hauling crushed gravel, a job which obviously did not require the same level of exertion as driving a log truck, since there were no binders or cables to put on. When asked why he did not continue with the job, Mr. Gordon stated: “I couldn’t rest — I couldn’t do the job ten hours a day.” Mr. Gordon also testified that he tried hauling logs for L. C. Walson, and that at the most he worked twenty days total. He testified: “I was limited. I could haul the logs but I couldn’t do anything with the wrappers and binders.” He stated that all he did was drive and that somebody else loaded and unloaded the logs. He also stated that during the twenty days he worked he made “maybe one trip one day and maybe two the next.” That compares with five or six trips a day that Mr. Gordon testified that he made before the accident in question. When questioned as to why he was not still hauling logs for Mr. Walson, the following exchange took place:

“A. I can’t cut it, couldn’t do it.

Q. What do you mean, you can’t cut it; what happens?

A. Well, as a gypo, you have to — it’s a young man’s job, I’ll put it that way. I just can’t keep up with them.

Q. Did it cause you any physical difficulties?

A. My neck was burned so bad, I would have to stop and my arm would go numb.” Mr. Gordon also stated that his arms would go numb when he was driving and that he could drive two hours at the most without seeking relief. He stated that he would have to “[pjull over and stop, walk around. If I could leave one arm down, it would come back to life and leave the other one on the wheel, but you can’t do that and shift.”

Mr. Gordon testified that L. C. Walson was a friend of his and that he had worked for Walson before. In Lyons, the Court in discussing workers in the odd lot category stated: “While they are physically able to perform some work, they are so handicapped that they will not be employed regularly in any well-known branch of the labor market — absent a business boom, the sympathy of a particular employer or friends, temporary good luck, or a superhuman effort on their part.” 98 Idaho at 406, 565 P.2d at 1363.

In this case, the fact that Mr. Gordon attempted to do some work of a less physically demanding nature does not indicate that he is able to return to work, especially when the record demonstrates that the opportunities were provided by a friend and that Mr. Gordon was not able to fulfill the job requirements because of the physical difficulties that resulted.

3 . The fact that the doctor referred to passing the Interstate Commerce Commission exam and the fact that the claimant told him that Brand S and Louisiana Pacific would not hire him because of his history and disabilities demonstrates that the doctor was not merely referring to the claimant’s ability to pass the ICC exam when he stated that “there was nothing that could be done to make him employable.” The doctor in all likelihood realized, as the Commission should have, that the only jobs that were available for the claimant in or near Sandpoint, Idaho, were truck driving jobs or jobs involving heavy manual labor. The record shows that claimant was unable to perform such jobs.

4 . A chief worry plaguing me is that the trial bench will join the claimant in surmising that the court’s opinion this day handed down is influenced by Gordon’s age, which approaches Social Security requirements for retirement.