Lola BYBEE, Claimant-Appellant, v. STATE of Idaho, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendant-Respondent.
No. 21757.
Supreme Court of Idaho.
July 25, 1996.
921 P.2d 1200
Although the district court did refer to Strickland in its decision, the court earlier recited the test under Cuyler and properly applied that standard, as follows:
Accordingly, the Court concludes that Souza did not “actively represent conflicting interests,” and that “an actual conflict of interest” did not “adversely affect his performance,” in representing McCoy.
Thus, we hold that the district court applied the correct standard in requiring McCoy to prove his claim of ineffective assistance of counsel in violation of the Sixth Amendment.
V.
CONCLUSION
We hold that McCoy failed to prove, by a preponderance of the evidence, that he was denied his Sixth Amendment right to effective assistance of counsel due to Souza‘s joint representation of him and Gillette at their sentencing hearings. McCoy failed to establish that an actual conflict of interest adversely affected Souza‘s performance.
We further hold that the district court applied the correct standard for the burden of proof required for a claim of ineffective assistance of counsel.
Accordingly, we affirm the decision of the district court.
MCDEVITT, C.J., and JOHNSON, TROUT and SCHROEDER, JJ., concur.
Mallea & Scrivner, Boise, for respondent. Wesley L. Scrivner, argued.
This is a workers’ compensation case dealing with the liability of the Industrial Special Indemnity Fund (ISIF).
I.
BACKGROUND
In March of 1991, the claimant, Lola Bybee, began to work for the Idaho Department of Parks and Recreation as caretaker at the Massacre Rocks Park in Power County. Within six months, she suffered two industrial injuries. On July 20, 1991, she injured her elbow, and on September 4, 1991, she injured her knee. Following the knee injury, she was unable to continue working. At the time these injuries occurred, Bybee was 67 years old. She did not graduate from high school and has limited work experience and no transferable skills. Further, she has an extensive history of pre-existing medical conditions and has sustained previous industrial injuries.
In January 1979, while working for Lamb-Weston, Inc., Bybee injured her lower back. In 1981, she had spinal surgery which resulted in cervical fusion at the C4-5 and C5-6 levels. She was also diagnosed as having degenerative arthritis in her spine. In April 1982, while still employed by Lamb-Weston, Bybee injured her neck. In 1984, she filed workers’ compensation claims for the 1979 and 1982 injuries against Lamb-Weston and the ISIF, alleging that she was totally and permanently disabled. In resolving these claims, the Industrial Commission (Commission) determined that Bybee was not totally and permanently disabled, but had incurred a permanent partial disability of thirty percent of the whole person.
Following 1984, Bybee had several jobs, including work at a nursing home and at a printing company. In February 1989, she had surgery on her neck and experienced a spontaneous fusion at the C3-4 level. Finally, Bybee has a binaural hearing loss which pre-dated her 1991 injuries. As of September 1991, the extent of impairment resulting from the hearing loss was rated at approximately sixteen percent of the whole person. Bybee testified this problem was so severe prior to the time she began working for the Department of Parks, that she had great difficulty even using the telephone.
II.
PROCEDURAL HISTORY
On May 11, 1994, Bybee filed a workers’ compensation complaint against both the Department of Parks and the ISIF relating to the July and September 1991 injuries to her elbow and knee. She contends that pre-existing conditions combined with the subsequent injuries to render her totally and permanently disabled. She reached a settlement with her employer and its surety, the State Insurance Fund, and the only question presented is the liability of the ISIF.
A hearing was held before a referee who made findings of fact, conclusions of law, and submitted a proposed order for adoption by the Commission. The parties stipulated that Bybee is totally and permanently disabled. The referee, however, found that this disability pre-dated the 1991 industrial injuries. Therefore, applying the “but for” test articulated in Garcia v. J.R. Simplot, 115 Idaho 966, 772 P.2d 173 (1989), he concluded that the pre-existing conditions did not combine with the injuries to give rise to the total permanent disability, and that the ISIF is therefore not liable for the amount of disability arising from the pre-existing conditions. The Commission adopted the referee‘s findings of fact, conclusions of law, and proposed order and dismissed Bybee‘s claim.
III.
DISCUSSION
Bybee seeks to recover workers’ compensation benefits from the ISIF. Therefore, she must establish that the requirements of
If an employee who has a permanent physical impairment from any cause or origin, incurs subsequent disability by an injury or occupational disease arising out of and in the course of his employment, and by reason of the combined effects of both the pre-existing impairment and the subsequent injury or occupational disease or by reason of the aggravation and acceleration of the pre-existing impairment suffers total and permanent disability, the employer and surety shall be liable for payment of compensation benefits only for the disability caused by the injury or occupational disease, including scheduled and unscheduled permanent disabilities, and the injured employee shall be compensated for the remainder of his income benefits out of the industrial special indemnity account.
We have held that this provision requires a claimant seeking to obtain contribution from the ISIF to establish: (1) that there was a pre-existing impairment; (2) that the impairment was manifest; (3) that the impairment was a subjective hindrance; and (4) that the pre-existing impairment and the subsequent injury in some way combine to result in total permanent disability. E.g., Dumaw v. J.L. Norton Logging, 118 Idaho 150, 155, 795 P.2d 312, 317 (1990) (citations omitted).
In this case, the only element at issue in establishing ISIF liability is whether the pre-existing impairments and the work-related injuries combined to render Bybee totally permanently disabled. The Commission applied the odd-lot doctrine to conclude that Bybee was totally and permanently disabled prior to the occurrence of the industrial injuries in question. Therefore, the total disability did not result from the combined effects of the pre-existing conditions and subsequent injuries; it was solely the result of the pre-existing conditions. On appeal, Bybee contends that the Commission erred in several respects.
A. Application Of Garcia v. J.R. Simplot Co.
Bybee first contends that the Commission erred in its application of the “but for” test articulated in Garcia v. J.R. Simplot Co., 115 Idaho 966, 772 P.2d 173 (1989). In Garcia, the ISIF asserted that the claimant‘s subsequent industrial injury would have rendered her totally disabled by itself. Therefore, the injury did not combine with the pre-existing impairment to result in the total disability as required by
In the present case, the Commission recognized that this situation is different from Garcia in that it is undisputed that Bybee‘s subsequent industrial injuries would not have resulted in total disability by themselves. Rather, the ISIF contends that the pre-existing impairment alone resulted in her total disability. However, the Commission agreed with ISIF‘s assertion that the “but for” test must “work both ways.” It concluded that in light of the “combined effects” requirement in
Bybee‘s contentions are misguided. The Commission did not base its determination on any finding that Bybee would eventually become totally permanently disabled by operation of the pre-existing impairments, but on the finding that she was, at the time of the injuries, already an odd-lot worker. Moreover, given the requirement in
B. Applicability Of The Odd-Lot Doctrine
We have long held that the term “total disability” as used in the worker‘s compensation statutes is not to be interpreted literally:
[B]y total disability [it] is not meant that the injured person must be absolutely helpless or entirely unable to do anything worthy of compensation. An employee who is so injured that he can perform no services other than those which are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist may well be classified as totally disabled.
Arnold v. Splendid Bakery, 88 Idaho 455, 463, 401 P.2d 271, 276 (1965) (citing Crawford v. Nielson, 78 Idaho 526, 307 P.2d 229 (1957); Endicott v. Potlatch Forests, 69 Idaho 450, 208 P.2d 803 (1949)). This expanded definition of the term “total disability” is referred to as the odd-lot doctrine. See Lyons v. Industrial Special Indem. Fund, 98 Idaho 403, 406, 565 P.2d 1360, 1363 (1977). Bybee contends that the Commission erred in applying this doctrine to conclude that she was totally permanently disabled prior to the 1991 industrial injuries since according to her, the doctrine cannot be asserted by the ISIF as a defense.
In utilizing specific terms in a statute, it must be presumed, unless indicated otherwise, that the legislature intended those terms to be interpreted in accordance with existing judicial decisions. E.g., State v. Jennings, 95 Idaho 724, 518 P.2d 1186 (1974); C. Forsman Real Estate Co. v. Hatch, 97 Idaho 511, 547 P.2d 1116 (1976). As stated above, we have long interpreted the term “total disability” to include odd-lot workers. Since the legislature did not except this category of workers from the requirement in
In Hamilton, a claimant with significant pre-existing physical impairments was seriously injured while working as a sawyer. He filed worker‘s compensation claims against both the ISIF and his employer contending that he was totally permanently disabled. Although Hamilton settled with the ISIF, the employer contended that he was totally disabled prior to the second injury. The Commission found that Hamilton was totally permanently disabled under the odd-lot doctrine prior to the second injury. However, it nonetheless awarded benefits against the employer for the amount of disability stemming from the second injury pursuant to the formula set forth in Carey v. Clearwater County Rd. Dep‘t, 107 Idaho 109, 686 P.2d 54 (1984).
On appeal we noted that the Carey formula is the means used to apportion liability for disability in excess of impairment between the ISIF and the employer under
C. Whether The Finding That Bybee Was Odd-Lot Prior To Her Industrial Injuries Is Supported By The Record
Whether a claimant is an odd-lot worker is a factual determination. E.g., Rost v. J.R. Simplot Co., 106 Idaho 444, 445, 680 P.2d 866, 867 (1984). As such, it will not be overturned on appeal when supported by substantial and competent, though conflicting, evidence. See, e.g., Hutchinson v. J.R. Simplot Co., 98 Idaho 346, 563 P.2d 404 (1977). See also
1. Framework
In all cases in which a claimant seeks to establish ISIF liability,
Once the claimant makes her initial showing, the ISIF must establish that she was in fact an odd-lot worker even though employed at that time. To do so, it must show that the claimant‘s actual employment was due to “a business boom, the sympathy of a particular employer or friends, temporary good luck, or a superhuman effort on [her] part.” Lyons v. Industrial Special Indem. Fund, 98 Idaho 403, 406, 565 P.2d 1360, 1363 (1977). If the ISIF succeeds in showing that the actual employment was due to such unusual circumstances, that merely establishes that employment is irrelevant for purposes of the odd-lot doctrine. See Crawford v. Nielson, 78 Idaho 526, 307 P.2d 229 (1957) (because odd-lot workers are by definition not absolutely helpless, the mere fact of actual employment is not conclusive as to question of total permanent disability). Stated differently, the odd-lot doctrine is defined in terms of whether there is any employment regularly and continuously available to a claimant. Cf. Gordon v. West, 103 Idaho 100, 104-05, 645 P.2d 334, 338-39 (1982) (claimant must do more than show he cannot perform his previous type of employment to establish odd-lot status; he must show that there is no suitable occupation available). Consequently, the ISIF must also show that in light of the claimant‘s pre-existing condition, the
2. Application
In the present case, Bybee established that she was regularly employed at the time of the accidents. However, the Commission found that her employment with the Department of Parks was “essentially the equivalent of work provided by a sympathetic employer or friend.” We conclude that this finding is supported by the record. The ISIF produced a job description containing a list of the duties that the caretaker job entailed. Although Bybee contends that this is not a listing of the duties actually expected of her, this assertion contradicts the very title of the document: “Work sheet for goals and objectives for Lola Bybee for the summer of 1991.” It is undisputed that Bybee did not perform all of the duties listed. Further, there is substantial evidence that Bybee was performing no more than light duty work in a job classified as medium duty, and that even this was beyond her diminished abilities.
There is also substantial evidence that any search by Bybee for continuous non-sheltered employment would have been futile. In determining whether a claimant is unable to obtain regular employment, ie. is “totally disabled,” consideration must be given to (1) the medical factor of permanent impairment and (2) pertinent non-medical factors set forth in
MCDEVITT, C.J., and JOHNSON, J., concur.
SILAK, Justice, dissenting.
I concur in the Court‘s opinion, except that I respectfully dissent to Part III(C)(2), which concludes that substantial, competent evidence supports the Industrial Commission‘s determination that Bybee was employed by a sympathetic employer. The record contains no substantial, competent evidence that Bybee was employed because the Idaho Department of Parks and Recreation was a sympathetic employer.
The Court‘s opinion admits Bybee presumptively established she was not an odd-lot worker by showing that she was regularly employed at the time of the accidents. After such a showing, the ISIF:
must establish that she was in fact an odd-lot worker even though employed at that time. To do so, it must show that the claimant‘s actual employment was due to “a business boom, the sympathy of a particular employer or friends, temporary good luck, or a superhuman effort on [her] part.”
Opinion at 1206 (quoting Lyons v. Industrial Special Indem. Fund, 98 Idaho 403, 406, 565 P.2d 1360, 1363 (1977)).
The Commission found that Bybee was not required to perform all the duties on the “goals and objectives” sheet for the summer of 1991 and that she was performing no more than a light duty task in a job classified by the Dictionary of Occupational Titles as medium duty. From these findings the Commission concluded, and now the Court upholds, that Bybee was employed by a sympathetic employer. This conclusion was made despite the fact that there was no testimony from anyone who had first-hand
The ISIF‘s expert testified as to her opinion “that only with a sympathetic employer would she [Bybee] be employed.” However, on cross-examination the following exchange between Bybee‘s attorney and the ISIF‘s expert occurred:
Q. In your evaluation or review of Mrs. Bybee‘s case, is there any indication in your records at all that show she was having—that she was not performing the job that she was supposed to do at the Parks Department?
A. I do not have any information on that. I‘ve had no direct contact with her supervisor.
The purely speculative testimony of an expert regarding the attitude of an employer with whom she has had no direct contact lacked foundation and cannot be said to be substantial evidence that Bybee was employed by a sympathetic employer. See, Gubler v. Boe, 120 Idaho 294, 298, 815 P.2d 1034, 1038 (1991) (trial court properly excluded testimony of expert who had no personal knowledge of the plaintiff‘s condition); Petersen v. Parry, 92 Idaho 647, 652, 448 P.2d 653, 658 (1968) (verdict cannot rest on conjecture). See also Ryan v. Beisner, 123 Idaho 42, 46, 844 P.2d 24, 28 (Ct.App.1992) (expert testimony which is speculative, conclusory, or unsubstantiated by facts in the record is of no assistance to the finder of fact and is inadmissible as evidence). As the ISIF expert stated on cross-examination, there is no evidence in the record to show that Bybee was not doing the job expected of her at the Department of Parks.
Bybee‘s case stands in sharp contrast to our recent decision in Hamilton v. Ted Beamis Logging & Constr., 127 Idaho 221, 899 P.2d 434 (1995), where this Court upheld an Industrial Commission determination that the claimant, Hamilton, was an odd-lot worker and held his position because of a sympathetic employer. The odd-lot finding in Hamilton was supported by testimony from Hamilton‘s employer, Beamis, who testified he would not have hired Hamilton on a regular basis because he was unable to work in the steep and uneven terrain where the logging work was performed. Id. 127 Idaho at 225, 899 P.2d at 438. Additionally, Beamis made special arrangements for Hamilton such as restricting his work to level ground and allowing him to take more breaks. Finally, there also was evidence that Beamis “only hired Hamilton because they were friends and Beamis was attempting to help Hamilton out.” Id. Even with such a sympathetic employer, Hamilton lasted only four days before leaving the position.
Contrary to Hamilton, there is no evidence whatsoever from Bybee‘s employer regarding the nature of her performance. The record does show that Bybee was employed by the Department of Parks for six months. During that time she earned $6.24 an hour, working eight hour days. She testified that she washed the windows, floors, mirrors, doors, sinks, toilets, and drinking fountains of the park‘s restrooms daily. Bybee also stocked the soap dispensers, toilet tissue dispensers, and the supply room. Additionally, she cleaned the roadways, parking lots, picnic areas and shelters as well as emptied the garbage cans throughout the park. The only tasks that Bybee did not perform were pruning the trees and bushes, mowing and irrigating the grounds, inspecting and replacing signs, and ensuring that the tools and equipment were kept in top working order. As noted above, at least one of the listed tasks, sign maintenance and repair, was actually the responsibility of the Highway Department. Overall, there was testimony that Bybee was performing in a light duty capacity and handling the job adequately.
In summary, the fact that Bybee did not perform all the tasks on the sheet defining
SCHROEDER, J., concurs.