On February 21, 1978, while working for respondent J.R. Simplot Company, claimant Everett Rost sustained a back injury. Timely notice of the injury was given to the employer. Due to his injury, claimant underwent surgery on April 5, 1978. Although claimant did well during his initial period of recuperation, he subsequently developed pain in his back which wаs caused by a “disc space infection.” Claimant continued under the care of Dr. Garber, claimant’s orthopedic surgeon, and Dr. Burton, a neurologist whom claimant first saw on January 7, 1980. Both doсtors concluded that claimant was stable as of April, 1981, and thereafter, each doctor assigned an impairment rating to claimant. On July 13, 1981, claimant filed an application for hearing with the Industrial Commission seeking permanent total disability benefits under the odd-lot doctrine.
In August, 1981, after Dr. Garber’s referral, claimant was examined by Dr. Priest, a cardiologist. Later that same month, Dr. Priest performed coronary bypass surgery upon claimant. Dr. Priest did not connect claimant’s cardiovasсular problems to claimant’s prior back injury.
Hearings were conducted by the Industrial Commission in June аnd July, 1982. Subsequently, the Commission issued its Findings of Fact and Conclusions of Law. The Commission concluded that claimаnt had failed to establish a prima facie case that he is a member of the odd-lot category. In addition, the Commission found that the claimant is capable of light-duty work and, therefore, nоt totally and permanently disabled. However, the Commission did determine that claimant had suffered а permanent partial disability of thirty-five percent (35%) of the whole man, and the Commission orderеd respondent to pay income benefits to claimant for his disability. This appeal followеd.
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Whether a claimant falls within the odd-lot category is a factual determination. It is the duty of the Industrial Commission to make this determination and the Commission’s findings will not be set aside on appeal if based upon substantial and competent evidence.
Gordon v. West,
The Commission’s spеcific conclusion of law which claimant argues to be incorrect reads as follows:
“Thе Claimant in this case has failed to sustain his burden of proof that he is totally and permanently disabled. He has failed to prove that he is an ‘odd-lot’ worker.
“The Claimant has failed to establish a рrima facie case that he is in the odd-lot category and therefore, the burden remains with thе Claimant to prove the unavailability of work. See Gordon v. West, [supra ]. He has failed to met [sic] that burden.”
It is claimant’s position that the Commission erred by applying the literal language of Gordon v. West, supra, to the facts in this case. Such an application is in his opinion unreasonable.
In
Gordon v. West, supra,
we held that a claimant, in order to present a prima facie cаse, must “prove the unavailability of suitable work in attempting to establish his alleged total disability.”
Gordon, supra
at 104,
Since their arrival in Idaho in 1977, the Rosts have run a “retirement home” in their home. Essentially, this entails providing room and board for elderly individuals who pay $300.00-$400.00 per month. During 1981 there was an average of eight residents and in 1982 the retirement home averaged ten residents. There was testimony that Mr. Rost has been performing the duties of cooking and meal planning for these residents. Furthermorе, Mrs. Rost testified that if claimant were not performing the cooking chores, it would be necessаry to hire someone to do so. Thus, although Mr. Rost does not receive a paycheck аs such for his work, it is clear that he and his wife earn a higher income from the retirement home because they don’t have to employ someone to cook. In 1981 they grossed approximаtely $42,000 with food costs of approximately $1,000 a month.
This evidence supports the conclusiоn that claimant has not only attempted other employment, but has successfully performed оther work. Therefore, there is substantial and competent evidence to support the Commission’s conclusion that claimant failed to establish a prima facie case of odd-lot.
The conclusion of the Industrial Commission that claimant is entitled to an award for permanent partial disability equal to 35% of the whole man is affirmed.
Costs to respondent.
No attorney fees on appeal.