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SMITH v. MITY LITE6/5/1997
ve confused the percentage of impairment, a determination which the medical panel is qualified to make, with the percentage of disability, including factors in addition to the physical impairment, which it is the Commission's duty to determine. In workmen's compensation law, the disability is the worker's impairment of earning capacity.
Id. The court noted that the medical panel's rating of the employee's disability reflected only his physical impairment and that the Commission "did not take into consideration the extent to which his physical impairment, compounded by other factors, could render him totally disabled," id. at 1325, i.e., the employee's inability to return to his previous employment, and his advanced age, limited education, and lack of marketable job skills. Id. at 1327. The court noted that the Commission had failed to acknowledge the odd lot doctrine, which "recognizes the substantial difference between physical impairment and disability. For example, a low percentage of physical impairment is not per se less than total permanent disability." Id. at 1326; see also Hoskings v. Industrial Comm'n, 918 P.2d 150, 154 (Utah Ct.App.) ("Under the 'odd lot' doctrine, the Commission may find permanent total disability when a relatively small percentage of impairment caused by an industrial accident is combined with other factors to render the claimant unable to obtain suitable employment." (footnote omitted)), cert. denied, 925 P.2d 963 (Utah 1996); see generally 1C Arthur Larson & Lex K. Larson, Workmen's Compensation Law ยง 57.51(a), at 10-286 (1996) (defining employee in odd lot category as one " 'who is so injured that he can perform no services other than those which are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist, may well be classified as totally disabled.' " (citation & footnote omitted)).
In deciding there was medical causation and in applying the odd lot doctrine, the Hardman court relied on its earlier decision in Marshall v. Industrial Commission, 681 P.2d 208 (Utah 1984). In Marshall, the Commission denied permanent total disability benefits to an employee based almost entirely on the employee's percentage of impairment and the fact that the employee was eligible to retire, rather than evidence of wage-earning capacity. The Marshall court held that the Commission's denial was unsupported by the Commission's findings of fact, and that reliance on the percentage of impairment was unsupportable under the odd lot doctrine. See 681 P.2d at 213. The Marshall court stated that with respect to permanent total disability claims:
Disability is evaluated not in the abstract, but in terms of the specific individual who has suffered a work-related injury . An injury to a hand would not cause the same degree of disability in a teacher, for example, as it would in an electrician. Thus, in assessing the loss of earning capacity, a constellation of factors must be considered, only one of which is the physical impairment. Other factors are age, education, training and mental capacity. It is the unique configuration of these factors that together will determine the impact of the impairment on the individual's earning capacity.
Id. at 211 (citations omitted).
Additionally, in Norton v. Industrial Commission, 728 P.2d 1025 (Utah 1986) (per curiam), the supreme court held that the Commission's finding that a worker was not permanently totally disabled was not supported by sufficient evidence, where the Commission did not consider the worker's "vocational history, educational limitations, learning disability and age 'in concert with his multiple disabling conditions and a need
for
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