*1 p.2d DAVAZ, Claimant-Appellant, Neil CO., INC., Em RIVER
PRIEST GLASS
ployer, and Idaho Insurance State
Defendants-Respondents.
No. 20206. Idaho,
Supreme Oct. 1993 Term. 2, 1994.
Feb.
Rehearing April Denied 1994.
Dissenting Denial Opinion on Bistline,
Rehearing by Justice
April *2 Mitchell, Thomas A.
John T. Mitchell and claimant-appellant. John Mitchell, argued. T. Lewiston, Cox, for defen- Blake &
Randall Gaskill, Jay argued. dants-respondents. P. McDEVITT, Chief Justice. (“Davaz”) appeals Appellant Davaz Neil the Industrial Commission from an order of (“Commission”) defining the extent of his injuries disability resulting from that oc- in a work-related accident sustained Priest River curred at defendant business Company. Specifically, Davaz contests Glass job use of the the Commission’s Montana, obtained where Davaz accident, to measure employment after §§ employability under 430(1) argues Davaz that the Com- and 425. scope of have restricted the mission should geographic area its review to a reasonable River, Idaho, where around at the time of the accident. lived and worked We affirm.
BACKGROUND job work- injured on the while Davaz was respondent Priest River Glass Com- ing for injury prevented (“Employer”). The pany necessary duties of performing him from and, em- consequently, his employment employment. After ployer terminated receiving treatment and extensive medical therapy, Davaz submitted rehabilitative ex- Davaz was seeking to recover hour. He also testified that claim to the Commission employment. tremely new motivated find expenses disability compensation medical surety, Employer and its the Idaho from September the Commission On (“ISIF”). Meanwhile, Insurance Fund State Law, Fact, Findings of Conclusion filed sought alternative found that The Commission *3 Order. retraining River area and benefits Priest lifting large injury occurred while Davaz was qualify comparable so he could for from ISIF found glass Employer. for It also pieces of employment available in Priest River the his injury precluded Davaz from that the any retraining. area. ISIF refused fund heavy lift- employment required former that Blaisdell, orthopedic surgeon Dr. an Sand- ing. recognized that Commission employment in point, actively sought comparable examined Davaz. Dr. Blaisdell found River, comparable that impairments Priest Davaz had related to loss 5% likely a reason- most was unavailable within impair- spine; of motion in dorsolumbar 3% area, geographic that Davaz would able and person pain that ment of the whole due to jobs his likely paying limited to 50-60% of be working capacities; reduces his 5% of the Nonetheless, formerly hourly wage. because person lifestyle, whole due to behav- to an where he found Davaz relocated area personality, ior which stat- Dr. Blaisdell employment, re- comparable the Commission adversely affected; been and an addi- ed had disability against his the fused to measure impairment tional 5% for each of the two In- he left in River. labor market spine, levels of claimant’s lumbar which were stead, the Commission measured his disabili- by “Diskogenic Dr. Blais- affected disease.” voluntarily ty against the labor market he rating gave impairment Davaz a dell medical injury on after the occurred. Based entered of 18.5%. measure, found the latter the Commission dis- that Davaz had sustained a February compa- On Davaz found due to non-medical factors Montana, employment in rable person, of the in excess amount of 10% whole family there River to moved from Priest impairment rating physical of his of 8.25%. Glass, begin work with Montana Inc. With rulings, the appeals Commission’s move, job running the Davaz’s wife lost her challenging relevancy of the Missoula day she care where earned $600-$800/month. alternative, market, and, in the assert- labor position Davaz also lost his the Priest on that, ing should the Missoula market be labor City Council for River which he received expenses Da- applicable, the and losses that and free water and sewer. $75/month moving vaz to Missoula should be incurred 14,1991, a panel On March reeval- medical considered. and found need fur- uated Davaz he did not treatment ther medical and could return ISSUES ON APPEAL previous glazier. as a Commission I. Whether Industrial
panel concluded Davaz had a considering Missoula labor erred impairment physical August of 6%. On of Da- to determine the extent application Davaz filed for be- disability. vaz’s fore the Industrial Commission to recover permanent disability Em- compensation from II. Whether Industrial presented tes- ployer. Davaz uneontroverted expenses have should considered timony that he received at the $10.45/hour incurred to Missoula. losses the move injury, and 10-18 hours of time of the worked III. Whether Industrial per pay. overtime week time-and-a-half findings sup- made sufficient of fact ISIF, Brownell, agent respondent an Dan ruling. port its pay- comparable that there were no testified OF STANDARD REVIEW ing jobs given in the Priest area Da- River limitations, physical the most appeals vaz’s and that The standard of review expect to an is two-fold. Davaz could earn was from the Industrial Commission $6 $5 dispute ability of The Commission’s factual are sub is “the diminished standard, mar- ject to a clear be [claimant] error and will upheld supported by competent if con- and sub ket reasonable area within a favorably sidering personal evidence construed most cir- stantial all the and economic party prevailed employee____” who below. Vernon v. cumstances Indus., 430(1). 767 P.2d Omark case The confusion results (citing Johnson v. Bennett specify from the failure statutes 241, 766 Lumber P.2d 711 spokes hub from of a “reasonable (1988); Indus., radiate, and Blackwell v. Omark it be from geographic area” whether (1988)). occurred, place place However, this Court exercises free review at the oc- claimant resided *4 over the Commission’s conclusions of law. curred, place the resides or the at Const, V, 9; Sprague § Idaho art. v. Cald Thus, hearing. have no clear- time of we Inc., 720, 722, Transp., well 116 Idaho 779 intent, ly expressed it is legislative (1989). 395, P.2d 397 § duty of I.C. this Court construe
430(1) rules of consistent with established statutory construction. ANALYSIS construing duty primary A court’s I. give legislative is to to the intent effect purpose underlying a statute. In re: Permit THE DID INDUSTRIAL COMMISSION 36-7200, 819, 823, No. 121 Idaho 828 P.2d ERR IN THE NOT CONSIDERING 848, (1992); Prop. County 852 Idaho Owners MARKET TO MISSOULA LABOR Dist., Syringa Hosp. 119 v. General Idaho DETERMINE THE EXTENT DA- OF 309, 1233, (1991); 312, 805 P.2d 1236 Gum DISABILITY VAZ’S d’Alene, precht City v. Coeur 104 Idaho of (1983). Moreover, 615, 1214 661 P.2d presented When -with a claim whole, court a as a In must construe statute benefits, permanent disability the Commis 36-7200, 823, at re: No. 121 Idaho Permit claimant’s sion must evaluate the 852, all of 828 P.2d at and consider sections §§ disability according to I.C. 72-425 and applicable together statutes to determine the § per Idaho 72-425 defines 72-430. Code legislature. Magnuson intent of the v. Idaho disability manent as a function of the claim Comm’n, 917, 920, State 97 Idaho 556 Tax gainful engage activity as ant’s (1976). upon P.2d It is incumbent conjunc by physical impairment affected interpretation give the court to the statute an read, Simply tion with nonmedical factors. deprive potency. that will it of Sweit not compensation permanent disability is award Dean, 568, 571, 27, v. Idaho 798 P.2d zer 118 capaci on the ed based claimant’s decreased 920, (1990); Magnuson, 97 556 31 Idaho engage gainful activity. ty to Matthews v. statute, construing P.2d at 1200. Corrections, 680, 121 Department Idaho of wording of must examine the literal we (1992) 683, 693, (citing Graybill 827 P.2d 696 36-7200, statute, 121 In re: Permit No. Co., 293, 294, v. & 115 Idaho 766 P.2d Swift 823, 852, we also Idaho at 828 P.2d at but (1988)). 763, prove The claimant must 764 harmony study must statute in with its disability. of his Seese v. the extent Ideal of Durtschi, 466, objective. 110 Idaho Doe v. Idaho, Inc., 32, 34, 1, 110 714 3 P.2d (1986). 1238, P.2d 1250 We also 716 (1985). capacity, If there no no is decreased such must account of all other matters take award warranted. proposed of inter as the reasonableness 72-430(1) pretations policy the statute. prescribes § and the behind Idaho Code 31; Sweitzer, P.2d at 798 factors the Commission nonmedical also, Fire determining permanent see Local Int’l. Ass’n. consider must when 1494 fighters City 99 Idaho disability. The factor at the heart of this (1978) (citation reading statute is con 630, 639, of the Such 586 P.2d omitted). primary purpose of the with the sistent disability, is to
award of
her loss of
compensate the claimant for his or
liberally
must
specifically,
More
we
Department
earning capacity. Matthews v.
provisions
construe the
of the workers’ com
Corrections,
680, 683, 827 P.2d
121 Idaho
pensation
in favor
law
(citing Graybill v.
&
purpose
to serve the humane
for which
order
Swift
293, 294,
P.2d
115 Idaho
Sprague
promulgated.
the law was
v. Cald
Bennett’s, Inc.,
(1988));
Baldner v.
Inc.,
Transp.,
well
(1982).
case,
In this
purpose
has lost no
clearly
facts
show that Davaz
compensation
provide
law is to
sure
workers’
admittedly, this is
earning capacity, although,
relief for
workmen and
and certain
solely
highly
commendable
dependents.
due
to his own
their families and
I.C.
72-
job
currently
pays
holds
efforts. The
he
job.
previous
It
much or more than his
purpose of the workers’
would not serve the
reading
language
A careful
compensation law to award Davaz
72-430(1)
entirety
light
in its
and in
*5
from which he and his
based on the market
compensation
per
of the overall workers’
law
family
permanently emigrated.
have
interpret
suades this Court
to
the clause
geographic
“reasonable
area” to refer to the
by a
reading
a
also is reenforced
Such
surrounding the
home at
area
claimant’s
the
emanating
prior ruling
from this Court
hearing.
language
of the
time of the
Fund,
Special
Lyons v. Industrial
Indemn.
legislature
reveals that
statute itself
(1977).
403,
In
98 Idaho
graphic upon to base an award area” III. permanent disability § 72- under 430(1). Combs, In this Court refused MADE THE COMMISSION INDUSTRIAL com- include to which Combs was ADEQUATE FINDINGS OF FACT work, weekly muting as a relevant labor ITS TO SUPPORT RULING Salmon, market, restricting analysis argues -Davaz also that the rec Idaho, Combs’ home at time of clearly ord does not show how Commis Combs, at 575. P.2d disability in sion arrived at its 10% excess However, holding distinguish- the Combs rating, and the case must be impairment able, not move in that Combs did to Missoula findings of fact and remanded for additional Salmon, but retained residence Idaho. comply conclusions law that with Madron contrast, correctly rec- v. Green Giant ognized, Davaz moved to the Missoula has disagree. The We market. Commission need not “make de Industrial analysis converge. All lines of every fragment of evidence tailed on statutory wording, general literal rules of *6 Inc., Kraft, to presented it.” Swanson v. law, interpretation, prior the under- case and P.2d that, lying suggest all purpose of the statute Madron, (quoting 72-430(1), § under the Industrial Com- I.C. 1052). only make The Commission need in which mission should consider meaningful ap sufficient enable time of the claimant resides at the clearly reflects pellate review. The record scope “rea- axis from which the of a support in of its that the Commission found Accord- sonable area” defined. on the conclusions that was ingly, affirm award of the Industrial we employability in the job, that his future same Commission. reduced, thereby occupation somewhat was comparable employ found and that Davaz II. ample findings provide an basis ment. These appellate
for review. IN THE DID NOT ERR COMMISSION respondents. Costs EX- CONSIDER FAILING TO AND COSTS INCURRED PENSES SILAK, JJ., IN THE FROM JOHNSON and
BY DAVAZ MOVE MICHAUD,- Tern., RIVER Pro concur. PRIEST TO MISSOULA J. that, Mis should asserts Justice, BISTLINE, dissenting. a relevant labor market soula be deemed respectfully Although well-writ- I dissent. 72-430(1), § applying purposes I.C. and, blush, major- persuasive, the at first ten con the Commission to Court should instruct approves disregard ity opinion, it wherein by expenses and losses incurred sider the employability in the labor of the claimant’s moving to We decline Davaz in Missoula. he lived at' the market where compensation laws do so The workers’ rule. spirit judicial injury, rank with the sweep breaks empower this Court to create the Compensation Law and does categories requested the Workmen’s
ing
of benefits
new
long-established
prece-
interpretation
patently
because it is
disservice to
case law
with this
legislative
not within the
di-
properly holds that the
unsound and
dent which
Commis-
legislature
sion,
rective. Had the
intended a dif-
determining
ability
in
the diminished
ferent rule for evaluation of the labor mar-
in
mar-
a claimant to
ket,
surely
it
would have included this admo-
72-430(1),
pursuant
§
in-
ket
to I.C.
should
statute,
easily
in
and could have
nition
analysis
clude
the labor market
done so.
wherein the claimant
the time of
lived at
interpreted
This
the relevant statu-
tory provisions
vastly
manner
different
My
disagreement
majority
first
with the
Lyons
Special
Indem.
v. Industrial
opinion
premise
stems from its erroneous
(1977). There,
the factors to be considered
the Commis-
jobs
of actual
consider evidence
both
determining permanent disability,
sion in
claim-
labor market near
residence of the
72-430(1)
part:
states in relevant
injury,
ant at the time of his
and the market
72-430. Permanent
—Deter-
near the
he later
residence which
moved.
Percentages—Schedule.
mination of—
Lyons,
fying the sister state out of fear that
See,
employment.
e.g.,
v. Mad-
again
job).
McMannis
wards would once
lose
The
(Fla.
Modulars,
Inc.,
Ray
718
289 So.2d
Arizona Industrial
denied the
1974)
earning capacity
(“employer-carrier’s
of
because
somewhat bizarre
loss
employed
sister state. On
...
should have
argument
he was
that claimant
reversed,
work, appears
hold-
find
appeal,
Appeals
attempt
the Court
moved in an
injured employee,
statutory
in des-
ing that where an
neither
nor
supported
be
case
elsewhere,
fact,
peration,
appear
work
...
it would
to be
seeks
secures
law.
In
employee has still suffered a loss of
Consti-
repugnant
such
to both Federal and State
earning capacity
tutions”);
Corp.,
he is
Fredenburg
because
unable to
v. Control Data
(“An
(Minn.1981)
compete in
where he resid-
em-
N.W.2d
required
v.
not
to seek substitute
ployee
ed at
Edwards
is
Ariz.,
Ariz.App.
community.”)
employment outside his own
Industrial Comm’n (1971).2
484 P.2d
Therefore,
patently
erroneous to now
it
today,
that,
this
to hold the same
Were
Court
contrary
hold
determination
ruling
be more
with
Court,
injured employee
such a
would
consistent
who
the Edwards
Kelly
thereby
rule we announced
Combs v.
to find work should
does relocate
Logging, 115 Idaho
courts have
we and other
lose that which
very
facts in
were
similar
Combs
not
that he or she should
lose.
determined
case, except
that Combs’ hear-
those
this
in Lyons
Just as we ordered the Commission
ing before the Commission occurred
at the time
to examine both the labor market
before
desperation
to relocate
he was forced out
at
time of
Recognizing
test of
to Missoula.
that “the
I
disability,
for permanent
deliberations
require
the claimant
reasonableness does
the Commission to evaluate both
would order
beyond
general area in
to look for work
case.
labor markets
lives,” this
ruled that includ-
which he
I dissent.
market,
were
ing Missoula in the labor
even
there,
Combs to relocate
would “vitiate
BISTLINE, Justice, dissenting on Denial
purposes which the Workmen’s
humane
Rehearing.
of Petition for
further.”
Compensation Law
intended to
was
Combs,
697-98,
at 576-
reason
I dissented
For much the same
Larson,
Com-
(quoting 2 A.
Workmen’s
River
opinion
to the
of Davaz
Glass
(1985)).
57.61(d),
pensation
at 245
Law
majority
by a
of this
when it was issued
majority recognizes
similarity
of this
Court,
to the Court’s denial
I dissent
Combs,
acknowledge the
but fails to
case
rehearing.
petition
By actually relocating
irony.
my dissenting opinion, pointed
I
out the
on
expense and sacrifice
incurring more
*8
analysis
between the
glaring inconsistencies
family,
lost
disabili-
of
the
part
the
his
analysis set
the
forth
set forth in
enti-
ty compensation to which he would be
Fund,
Lyons
Special Indem.
in
Industrial
v.
only
if
in
under
he had
remained
tled
Combs
(1977),
403,
in
with new labor market and is
necessarily thereby
Naturally,
decreased.
the determination of a
“better” labor
manifestation of profitable to a market. Ac-
move less