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Jarvis v. Rexburg Nursing Center12/26/2001
mant had failed to prove that she was totally and permanently disabled?
Jarvis does not contest the Commission's findings that she is medically stable and that she has a permanent impairment of 46% of the whole person. She contends, however, that the Commission erred when it failed to find that she was totally and permanently disabled.
A claimant may prove a total and permanent disability in one of two ways. First, the claimant can prove that his permanent impairment together with non-medical factors totals 100%. Thompson v. Motel 6, 135 Idaho 373, 17 P.3d 874 (2001). A permanent disability rating is an appraisal of the claimant's present and probable future ability to engage in gainful activity as it is affected by the medical factor of permanent impairment and by pertinent non-medical factors. Rivas v. K.C. Logging, 134 Idaho 603, 7 P.3d 212 (2000); IDAHO CODE § 72-425 (1999). The pertinent non-medical factors include the nature of the physical disablement, the cumulative effect of multiple injuries, the occupation of the employee, his age at the time of accident, his diminished ability to compete in an open labor market within a reasonable geographical area, the personal and economic circumstances of the employee, and other factors as the Commission may deem relevant. Rivas v. K.C. Logging, 134 Idaho 603, 7 P.3d 212 (2000); IDAHO CODE § 72-430 (1999).
If a claimant fails to establish a 100% disability, he can seek to prove that he is totally and permanently disabled under the odd-lot doctrine. Thompson v. Motel 6, 135 Idaho 373, 17 P.3d 874 (2001). The odd-lot category is for those workers who are so injured that they can perform no services other than those that are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist. Lyons v. Industrial Special Indem. Fund, 98 Idaho 403, 565 P.2d 1360 (1977). Such workers need not be physically unable to perform any work at all. Id. They are simply not regularly employable in any well-known branch of the labor market absent a business boom, the sympathy of a particular employer or friends, temporary good luck, or a superhuman effort on their part. Id. If the evidence of the medical and non-medical factors places a claimant prima facie in the odd-lot category, the burden is then on the employer or surety to show that some kind of suitable work is regularly and continuously available to the claimant. Id. A claimant can establish a prima facie case for odd-lot status by showing: (1) that he or she had attempted other types of employment without success; or (2) that he or she, or vocational counselors or employment agencies on his or her behalf, have searched for other work and other work is not available; or (3) that any efforts to find suitable employment would be futile. Dehlbom v. Industrial Special Indem. Fund, 129 Idaho 579, 930 P.2d 1021 (1997).
Jarvis attempted to prove that her permanent disability was 100% or, in the alternative, that she was totally and permanently disabled under the odd lot doctrine because any efforts to find suitable employment would be futile. She relied primarily upon her and her mother's testimony regarding the nature and severity of her chronic pain and her resulting irritability, inability to concentrate, depression, sleeplessness, fatigue, and loss of function in sitting, standing, walking, bending, and driving and upon the expert opinion of a private rehabilitation counselor.
The claimant's credibility is certainly an issue that can be considered by the Commission, particularly where the claimant is basing a claim for permanent disability upon complaints of pain. Soto v. J.R. Simplot, 126 Idaho 536, 887 P.2d 1043 (1994). The Commissi
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