Urry v. Walker & Fox Masonry Contractors

BISTLINE, Justice,

concurring in part and dissenting in part.

I concur fully with Part II of the Court’s opinion which remands this case to the Commission for further findings as to whether Urry suffers a permanent partial disability as a result of the 1984 accident.

I dissent from Part I, however, which refuses to reopen the case relating to the 1979 injury when Urry worked for Walker and Fox Masonry. The majority concedes that the 1979 compensation award “blurs the distinction between impairment and disability.” Supra at 753, 769 P.2d at 1125. Nevertheless the majority reasons that no reversal is warranted because, so it is said, the record is clear that there is no evidence to sustain a finding/that the degree of disability in 1979 was greater than 20 percent. I disagree with that conclusion as a matter of law. The treating physician, Dr. Howard Johnson, opines that as a result of the 1979 industrial accident Urry can no longer work as a hod carrier or do other heavy labor. Without question, then, Urry has lost some earning capability. This case should be remanded to the Commission with directions to conduct a hearing for the reception of evidence and determine the extent of Urry’s disability — which very well may turn out to exceed physical impairment.

This Court cannot justify remaining oblivious to the circumstance that at the time the patently ambiguous compensation agreement¹ was executed in 1980, Urry did not have counsel. (David Urry’s wife pursued a disability award on her husband’s behalf, with the mistaken belief that such could be obtained through the federal Social Security Administration. See defendant’s Exhibit 14.) It is seriously doubted the average layperson, without the .aid of counsel, can adequately understand the all-important distinction between impairment and disability — a distinction with a difference which has confused lawyers, jurists, and the Commission for years.

The stated purpose of the worker’s compensation law is to provide sure and certain relief to workers who have been injured while on the job. When that goal is kept in sight, it is readily seen that little has been done in this ease toward achieving that goal where Mr. Urry very well may have been deprived of an entitlement simply because he was not knowledgeable enough to know that it will be a rare circumstance when an uncounselled claimant fares reasonably well in his dealings with a surety, although it certainly does happen. But on the other hand there are incidents such as happened in Horton v. Truck Insurance Exchange, Surety for Garrett Freightlines, 106 Idaho 895, 684 P.2d 297 (1984), where the surety without any advice to an uncounselled and uninformed Horton, or to his employer of over 30 years, sought to close out his file without complying with the statutory law requiring evaluation of medical impairment, or disability from work, and without any commensurate compensation award therefor.

1 . The compensation agreement form signed in this case is identical to the one held ambiguous in Woodvine v. Triangle Dairy, Inc., 106 Idaho 716, 682 P.2d 1263 (1984). It was stated:

We note that since the intent of the parties to the compensation agreement is what ultimately determines whether the award is for permanent impairment or permanent disability, in the future a form of agreement which more clearly indicates the intention of the parties would be desirable.

106 Idaho at 722 n. 4, 682 P.2d at 1269 n. 4.