Bennett v. Clark Hereford Ranch
680 P.2d 539
Idaho
1984
Check Treatment

*1 SHEPARD, Justice, concurring and dis-

senting: agree portion

I do not with that of the

majority opinion which holds that the dis- in ruling

trict court erred county estopped. Admittedly,

herein was the hold- majority upon Harrell is based Lewiston, v. City 506 P.2d (1973). However, I continue to view holding Harrell as erroneous. holding

As to majority

is primarily based the doctrine of

judicial zoning notice certain ordinances Canyon County, disagree. I also How-

ever, in the record before the Court are the

actual ordinances which demonstrate that respondent’s property being put

a use forbidden under those ordinances.

Hence, I in the concur result obtained portion opinion. of the majority

BISTLINE, J., concurs. BENNETT,

Alfred Lee

Claimant-Appellant, RANCH,

CLARK HEREFORD and Fire- Company,

man’s Fund Insurance

Defendants-Respondents.

No. 14429.

Supreme Court Idaho.

April *2 surety,

The Fireman’s Fund Insurance Company, voluntarily paid thereafter temporary disability compen- total sation for 51 weeks from the date of the 12, 1977, January accident until the date on ongo- which Mr. Bennett was released from ing Swartling, orthopedic care Dr. physician.1 Swartling gave Dr. Mr. Ben- percent nett a 15 medical rat- ing. surety voluntarily paid The thereafter $6,187.50 percent for the 15 impairment. No compensation agreement into was entered between parties. 9, 1978,

On November Mr. Bennett filed application Industrial Commis- requesting sion award of disability compensation pursuant to I.C. 72-423.2 The before a referee 6,May September was held on 1980. On 11, 1981, approved the Commission the ref- denying eree’s decision Mr. Bennett’s claim. following presented evidence was be-

fore the was referee and summarized in the findings referee’s which were adopted by the Commission. theOn date accident, Mr. Bennett was a married man with seven ranging children from the ages of three to nineteen. He years having old formal no education and being able to read neither nor write. Dur- ing lifetime, had engaged he been Boise, McDougall, Pike, William Emil principle three employment fields of —con- Falls, claimant-appellant. Twin for struction, general farm labor and truck Barrett, Moffatt, Thomas, W. John Bar- accident, driving. After his no he was Blanton, Boise, &rett for defendants-re- longer able to or construction spondents. farm labor difficulty because bending, stooping, twisting, remaining in BISTLINE, Justice. any position long periods for of time or Alfred Lee inju- lifting Bennett, was, Bennett suffered a back heavy objects. Mr. ry January however, while at able al- to continue Buhl, Hereford though Clark Ranch near Idaho. he that he testified had trouble Swartling they surgically just 1. Dr. he testified that released Mr. call healed so I rated him.” ongoing point pp. Bennett from at this care "be- 39-40. year injury it had cause been a since and I was thinking compensation people the workmen’s provides I.C. § 72-423 disabil- year get they nervous after about a want ity presumed ability actual "results when the or other, something way rating done one or the ab- reduced or operation something or release or ... He permanent impairment sent because of and no better, any any wasn’t he worse at that wasn’t change fundamental or marked in the future point. point At that his condition was what reasonably expected.” can be loading unloading the trucks and that “That burden a workmen’s compensation the Claim- stop he often had to and rest his back.3 case present expert opinion ant to concern- year accident, prior to his degree disability. In this $4,000. accident, Bennett earned After the case, the Referee concludes that Claim- unemployed remained for two and one- failed, preponderance ant has years4 August half until of 1978. Mr. *3 evidence, prove that Claimant's he had testified that looked for present are circumstances related to his employment get couldn’t but “I around industrial of January accident 1976. very good. I to see Dr. Swartling have The opinions medical this case indicate quite going I often and was once but no that Claimant is to continue able with his R., give job.” p. one would me a 62. Mr. The activities. record re- when Bennett testified that he couldn’t find has, flects that Claimant been job bought a old he an truck which he employed as a truck driver since his in- operated of until December 1978 when the accident, and dustrial in fact his engine engine up. replaced blew discontinuing reason for his truck driv- January days of 1979 and three later it independent as an truck driver was up. also blew has The truck remained im- inability engine financial re- have pounded owing a bill Texas with on it for paired. hearing, At the time $7,200. During the six months 1978 in working Claimant was in fact as a truck which Mr. Bennett worked as a self-em- working driver the of Texas State ployed grossed $3,000. truck driver he per day days hours five to five and a half figure This into does not take consideration per week. $7,200 repair owing the on bill the truck. such, “As has Claimant failed to sus- In Mr. Bennett worked for five dif- tain his establishing burden of a earnings employers; ferent amounted disability greater than a whole 15% man $2,000. In Mr. Bennett worked for permanent impairment physical award. employers; two different at the time of the compensation All workmen’s benefits for he had worked two weeks at due Claimant as a result of the industrial of temporary job last sand and paid accident have been by heretofore ’’ paid hour for 10-hour $4.50 Defendant-Surety. days days work five and one-half a week. R., added). p. (emphasis particular testified that principle ap- Bennett’s contention on job probably would the summer if last he peal wrong is that the used Commission pain physical could stand the and discom- legal determining standard in that he was loading unloading fort and occasioned disability greater not entitled to a award truck, sitting long periods and in for than his impairment He R., p. time on the road. 76. argues that the test for wheth- holding Bennett had that Mr. failed to er a claimant has suffered dis- to a disability establish entitlement ability greater impairment than medical greater physical impairment than his rat- not whether the claimant is able to return wrote, ing, with employment, the referee which two to work at some but rather impairment, agreed: members of the whether the taken in Commission response long Swartling ques- periods 3. of time Dr. testified to the to sit for or be in one time, position long periods tion of what recommendations would have be kind for up light moderately back that: reference to Mr. Bennett's of a and down and sort — "Well, light type mainly get type of work.” into some of work R., of, p. necessarily that he can kind be his boss, pace. at his own Some- own thing but work applied apparently 4. for and Bennett had doing like the he was where truck work security received social benefits. lifting, bending much he didn’t have to do pp. thing. 18 and 40. stooping, type And didn't have factors, conjunction with nonmedical appellant’s nonmedical has abil- factors ity employment. to obtain capacity gainful reduced the claimant’s for Appellant agree. grade has a ninth spe- We education and no training primary cial or skills. His voca- § 72-425, at the time relevant to this perform tional asset was his proceeding,5 provided that the evaluation of heavy manual labor. While his lack of permanent disability appraisal is “an education, special training, formal and injured employee’s present probable prevent usable skills did not him from activi- future past, undoubtedly it will ty as it is affected the medical factor of finding employment lessen his chances of nonmedical best, appellant in the future. At can sex, education, such as eco- only prospective employer offer a nomic and social (Emphasis environment.” perform light unskilled work of added.) highly position restricted nature. His *4 reviewing After the Commission’s differs from that of someone such as an law, findings of fact and conclusions of we accountant who would still have valuable it employer find clear that the Commission skills offer an spite did not to in of a § apply the standard set forth in physical handicap.” (Empha- I.C. 72- substantial added.) sis 425 in that Mr. Bennett was not entitled greater to a Carey County v. See Clearwater Road impairment rating. than his medical There (Distribution Department, 11, No. Su- is no indication that the Commission exam West, 14690); preme Gordon v. Court No. “ability ined Mr. Bennett’s engage to in 100, (1982); 103 Idaho 645 P.2d 334 Reifs- gainful activity by as it is affected ... Cafe, teck v. Lantern Motel and 101 Idaho sex, nonmedical such as edu (1980); Francis v. 619 P.2d 1152 cation, economic and social environment.” Co., Amalgamated Sugar 98 Idaho The Commission did not examine (1977). such fac years tors as that Mr. Bennett was 43 evaluating Instead Mr. Bennett’s dis- age ability with no formal education to ability “ability in terms of his engage to in write; read or that Mr. Bennett could not gainful activity by as it is affected longer engage in construction or farm impairment medical factor of work; ability or that his drive to trucks factors,” by appears nonmedical it was diminished his accident. merely the Commission considered the fact presently employed Mr. Bennett was Similarly, in Lyons Special Industrial driver; as a truck that “his reason for dis- Fund, Indemnity 565 continuing driving indepen- his truck as an (1977), Court, P.2d this in hold- inability dent truck driver was financial to demonstrated, ing that the claimant had as engine repaired;” have an and that “at the law, a matter of that he fell within the hearing, time of Claimant was fact category persons “odd-lot” of those whose working as a truck driver in the state of medical conditions combined with nonmedi- per day Texas 10 hours five to five virtually cal factors rendered them unem- days per p. and a half week.” 70. ployable, stated: “In addition to the medical factor of The fact that Mr. Bennett was impairment, the Commission able to truck does not continue must also consider nonmedical factors ability engage gain establish to that his education, age, sex, such as economic activity ful diminished was not environment, training, and social and us- is re nonmedical factors the Commission § § 72-425, I.C. 72-425. The Commis- su quired able skills. to consider under I.C. approach pra. Additionally, sion’s in this case does not re Commission’s Bennett, adequately consider the these liance on the fact that Mr. effect quent proceedings was amended in subse- herein. § I.C. 72-425 to attempt provide of em- own means difference in the prior to amount he earned ployment, purchased a truck in and after order up-We industrial accident. driver, become an independent truck is mis- held the on the Commission’s reliance placed in determining that Mr. Bennett was claimant’s in- actual in that wage earnings not entitled disability compensation stance addi- where the found specifically referee tional to that “the wage-earn- claimant’s decrease provides 72-425 capacity that one of the equivalent to his decrease factors to be in determining per- considered in this engage gainful manent disability Thus, is the may rely “economic circum- case.” the Commission stances” of the employee. Mr. income pre- Bennett Mr. post-injury Bennett’s $4,200 lost in the accurately six months of his attempt only levels if it finds that such independent become an engage driver. It reflects his that, although finds, is clear as Mr. may If the Commission have deluded himself testified, into the belief not that he Bennett that he could was financially able to start his own for an extended busi- sand and ness—one time, earnings which would be during suited period to his then his practical matter, limitations—as a do temporary employment not accu- such such was not the case.6 This gain- is an rately econom- reflect his ic factor which tended to show that employment. ful Bennett was disabled excess of his medi- Additionally, the Commission erred impairment, cal a factor negating as stating “the burden of such an award. *5 present expert the opinion Claimant to apparently placed degree (Em concerning disability.” Commission the of considerable phasis supplied). reliance on the fact that Mr. The Commission’suse of temporary job improper had a of this standard vitiates its decision required sand requires which him to and this Court to reverse and re days, work ten hour five to five and one- mand the Commission decision for determi days half paying a week and disability. $4.50 an hour nation of Mr. Bennett’s See 119, in Fiest, that Mr. Bennett was not Ross v. 105 Idaho 666 P.2d 646 disability (1983). Baldner, entitled to a supra, award in excess of “In As stated impairment rating. It asserting is true that “the most cases a claimant is where primary purpose permanent disability of an award of exceeds his partial disability compensate attempts benefits is to impairment, he to the earning capaci prove by presenting testimony claimant for his loss of the that fact ty or engage gain expert his reduced to of a witness in the area of who is However, activity.” ful employment____ Baldner v. Bennett’s Chev the Workmen’s rolet, Inc., Compensation any require 103 Idaho 649 P.2d Law does not 1214, (1982). However, particular proof.” 1217 it is error on method 103 Idaho of added); (emphasis 1217 part the of the Commission to look at one at 649 P.2d see Co., earning period Murray Mining the claim two-week after Hecla (1977); also, conclude that because see Thom v. ant’s accident and Callahan, period, Idaho P.2d 1330 earning more in this the claimant is basis, (1975). Thus, although it true that the computed yearly if a than he did is upon the claimant to necessarily did burden of before his accident that earning capacity prove disability excess of not suffer a loss in his required not gainful activity. rating, In the claimant is engage testimony part of his Baldner, present expert the as set supra, Commission case. disability award to reflect claimant’s R„ hearing p. 116. testified at the Mr. Bennett presently live in his truck. that he was forced to suggests the com- it the extent

We reverse remand the Commis- “Mr. Bennett’s for a to determine whether did examine sion mission it is Mr. Bennett entitled to as ‘ability impair- excess of his medical such non-medical ... affected remand the sex, education, ment On Commission and social economic as ” the nonmedical factors listed will consider nothing There is environment.’ in determining 72-425 whether com- other than that the record indicate has in his sustained loss all the evidence mission considered in gainful However, I agree arriving at its decision. determined the extent having that after appellant. Costs to proved must be impairment, which HUNTLEY, J., testimony, concurs. the considera- expert medical need not be non-medical factors tion DONALDSON, C.J., re- concurs in the by expert testimony, and for that proved sult. must remanded to the the matter be reason Justice, BAKES, concurring specially: for reconsideration. commission portion majority I in that concur opinion concludes that the commis- J., SHEPARD, concurs. requiring proof by “expert sion erred concerning degree opinion of disabili- case must be

ty.” For this reason the to the commission

reversed and remanded findings requiring that

for further without disability be factors of

the non-medical However, I by expert testimony.

proved

disagree opinion the balance of the