Appellant, Douglas J. Reiher (“Reiher”), challenges the manner in which the Idaho Industrial Commission (“Commission”) apportioned his permanent disability between a preexisting injury and an injury he incurred while working for respondent, American Fine Foods (“American”). Reiher asserts that the Commission erred in only attributing 18.5% of his permanent disability to the new injury. We vacate the order of the Commission and remand the case for proceedings consistent with this opinion.
BACKGROUND
Reihеr worked for American as a bean dumper. Reiher worked an average of eight to ten hours of overtime per week at time- and-a-half pay. On March 20, 1990, Reiher injured his right hand while attempting to free a stuck crank. At the time of the accident, Reiher was earning $7.16 per hour. Reiher sought treatment for the injury from Dr. Bills, an orthopedic physician, who ultimately referred Reiher to Dr. Watkins, a hand specialist who performed surgery on Reiher’s hаnd. Despite the surgery, Reiher still experiences debilitating pain, from residual post-traumatic arthritis, in his right hand after prolonged or strenuous use. Dr. Watkins gave Reiher a 5% impairment rating for the right hand injury. Another doctor, Dr. Bowman, emрloyed by the surety to examine Reiher, gave Reiher a 10% impairment rating. Prior to the hearing before the Commission, the parties stipulated that Reiher suffered a medical impairment of 4.5%. Reiher has limited lateral and radial motion in his right hand. He can no longer engage in anything but light manual labor.
Reiher previously lost three fingers on his left hand in a work-related injury incurred at a previous place of employment. He received permanent disability benefits for the injury at the time it occurred. Before receiving the injury at issue in this case, Reiher *60 was able to compensate for the partial loss of his left hand by adapting with his right hand. Reiher has performed medium tо heavy manual labor for most of his life. The Commission determined that Reiher’s impairment attributable to the left hand injury equalled 15% of the whole person.
After injuring his right hand, Reiher received immediate alternative employment with American as a security guard earning $7.16 per hour. At the time of the hearing, Reiher was earning $7.90 per hour with a benefits package worth $207 per month. He no longer can accumulate the overtime hours that he worked when employed as a bean dumper. Reiher’s expert, Wendy Nuttycombe, testified that Reiher lost access to 72% of the labor market due to the combined effects of the injuries to both hands. Of that 72%, she testified that 81% was due to the new injury. American’s expert, James Grissom, testified that Reiher lost access to 30% to 40% of the labor market as a result of both hand injuries. The two experts agreed that Reiher’s access to the labor market was limitеd to positions paying $5 to $6 an hour.
Based on the testimony proffered, the referee determined that Reiher had an overall permanent disability of 38%, including the 19.5% physical impairment rating (4.5% attributable to the new right hand injury and the remaining 15% attributable to the preexisting left hand injury). In factoring this disability percentage, the referee refused to consider evidence of Reiher’s probable future wage increases as a bean dumper. In apportioning the disability between the preexisting left hand injury and the new right hand injury, the referee applied the formula set out in
Carey v. Clearwater County Rd. Dep’t,
This Court addresses the following issues on appeal:
I. Whether the Commission erred in concluding that
McClurg v. Yanke Machine Shop,
II. Whether the Cоmmission’s award of permanent disability is supported by substantial and competent evidence.
III. Whether the Commission erred in apportioning Reiher’s permanent disability between his right and left hand injuries under I.C. § 72-406 in proportion to the apportionment of his impairment ratings.
STANDARD OF REVIEW
The standard of review for appeals from the Industrial Commission is two-fold. While this Court will exercise free review over the Commission’s legal conclusions, Idaho Const, art. V, § 9;
Spruell v. Allied Meadows Corp.,
ANALYSIS
I.
THE COMMISSION DID NOT ERR IN CONCLUDING THAT McCLURG v. YANKE MACHINE SHOP PRECLUDED IT FROM CONSIDERING PROBABLE FUTURE WAGE INCREASES IN DETERMINING REI-HER’S PERMANENT DISABILITY
The Commission, in determining the extent of Reiher’s disability, employed the
*61
test “whether the physical impairment, taken in conjunction with non-medical factors, has reduced claimant’s capacity for gainful activity.” The Commission found that Reiher’s pre-injury and post-injury income levels did not accurately reflect his post-injury ability to engage in gainful activity. The Commission did not base this finding upon any wage increаse Reiher would have received as a bean dumper, though it acknowledged that evidence of such increase would have been a reasonable factor in determining disability but for the preclusive languagе of
McClurg v. Yanke Machine Shop,
Reiher accurately articulates that this Court’s language in
McClurg
does not prohibit the Commission from considering probable future wage increases where the Commission’s finding of such increases is supported by substantial and competent evidence, and “injustice [would result] by virtue of a failure to account for intervening wage increases____”
McClurg,
II.
THERE IS SUBSTANTIAL AND COMPETENT EVIDENCE TO SUPPORT THE COMMISSION’S AWARD OF PERMANENT DISABILITY
Reiher challеnges the Commission’s choice to reject the opinion of Reiher’s labor market expert when assessing his permanent disability.
The Commission recognized that, but for the good fortune Reiher had in obtaining his present positiоn as a security guard, he would be unable to compete in the open labor market as he had in the past, and assigned Reiher a partial permanent disability rating of 38%, including the 19.5% impairment rating. The Commission cited the tеstimony of Dr. Watkins, Reiher’s treating physician, and John Grissom, American’s labor market expert, as the basis for its conclusions.
An award of permanent disability is a factual finding. This Court will not disturb the Commission’s factual findings if they are supported by substantial and competent evidence.
Spruell v. Allied Meadows Corp.,
III.
THE COMMISSION ERRED BY APPORTIONING REIHER’S PERMANENT DISABILITY IN PROPORTION TO HIS IMPAIRMENT RATINGS
Reiher also challenges the manner in which the Commission apportioned his permanent disability between his right and left hand injuries. Speсifically, Reiher argues that the Commission should not have apportioned Reiher’s disability between his preexisting injury and his current injury according
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to the formula devised by this Court in
Carey v. Clearwater County Rd. Dep’t,
The Commission must be presumed by its experience to be able to judge the causаtive factors in a particular case, and be allowed a degree of latitude in making an apportionment.
Brooks v. Standard Fire Ins. Co.,
In
Carey,
this Court ruled that, in cases of total disability, where apportionment is rеquired pursuant to Idaho Code § 72-332, the appropriate solution to apportioning non-medical disability factors between an employer and the Industrial Special Indemnity Fund is to prorate the non-medical portion of disability in proportion to their respective percentages of responsibility for the physical impairment.
Carey,
The Commission reasoned that the Carey formula was appropriate in this case becаuse, but for the preexisting left hand injury, the debilitating effects of the right hand injury would be relatively minor. The Commission felt that American should not be punished for having hired an obviously physically impaired individual. This is not the applicable standаrd to determine what degree of disability the claimant had prior to the compensable injury. The record in this case clearly shows that Reiher suffered no disability before his right hand injury. The Commission recognized that Reiher’s left hаnd injury did not impede his earning capacity, which impediment would be the primary basis for awarding permanent partial disability.
Baldner v. Bennett’s,
Costs to appellant.