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Vassar v. J.R. Simplot Co.6/29/2000
arning $506.50/week, including a benefits package, or $12.66/hour, at the time of her 1994 industrial accident. She had just begun making that salary and did not advise Simplot of her low-back restriction from truck driving. Moreover, given Claimant's restrictions after her 1991 accident and her need to use lumpers, it is unlikely that Claimant has earned $26,000.00/year, the salary of a long-haul truck driver, since her low-back injury. However, Claimant cannot now return to any truck driving at all. Thus, she has experienced far more limited access to the labor market and lower income than that relied upon by Mr. Crum in rendering his opinion. Accordingly, the Commission finds that Claimant suffers a disability of 25% of the whole person, inclusive of her physical impairment rating attributable to her 1994 industrial accident. This equals $26,812.50.
Vassar argues that the Commission should not have considered her wage track record or her prior back injury . According to Vassar, the Commission must accept the wage that Vassar was earning at Simplot as the quantification of her pre-injury ability to engage in gainful activity.
STANDARD OF REVIEW
On appeal from the Industrial Commission, this Court exercises free review of the Commission's legal conclusions. Reiher v. American Fine Foods, 126 Idaho 58, 878 P.2d 757 (1994). However, this Court will not disturb the Commission's factual findings that are supported by substantial and competent evidence. Id.
DISCUSSION
Idaho Code § 72-425 provides that "'Evaluation (rating) of permanent disability' is an appraisal of the injured employee'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 as provided in section 72-430, Idaho Code." Accordingly, when the Commission determines the permanent disability of a claimant, the Commission is required to examine the factors provided in § 72-430. In Baldner v. Bennett's Inc., 103 Idaho 458, 649 P.2d 1214 (1982), this Court held that in some circumstances the Commission could consider a comparison of the claimant's pre-injury and post-injury incomes as relevant evidence. However, such a comparison is merely one of the relevant factors to be considered. Loya v. J.R. Simplot, 120 Idaho 62, 813 P.2d 873 (1991). As this Court noted in Loya, consideration of only the claimant's decrease in earning capacity would require reversal. Consideration of a comparison between pre-injury and post-injury earning capacity is permissible only if the Commission also finds that the comparison accurately reflects the claimant's ability to engage in gainful activity. Bennett v. Clark Hereford Ranch, 106 Idaho 438, 680 P.2d 539 (1984); McClurg v. Yanke Machine Shop, Inc., 123 Idaho 174, 845 P.2d 1207 (1993). It is implicit in the Commission's findings of fact in this case that it did not believe that Vassar's pre-and post-injury wages accurately reflected her reduced ability to engage in gainful activity.
Vassar argues that I.C. § 72-102(30) requires that the Commission base its determination upon the Claimant's I.C. § 72-419 average weekly wage. Idaho Code § 72-102(30) provides that "'Wages' and 'wage earning capacity' prior to the injury . . . mean the employee's money payments for services as calculated under section 72-419, Idaho Code." The Commission's evaluation of permanent disability is governed by I.C. § 72-425, which requires "an appraisal of the injured employee's present and probable future ability to engage in gainful activity." Vassar, however, has provided no authority indicating that either "wages" or "wage earning capacity" as used in § 72-102(30) and
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