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SMITH v. MITY LITE6/5/1997
total re-education.' " Id. at 1027 (citation omitted). The Norton court explained that the Commission
failed in its administrative responsibility and function to evaluate [the employee's] permanent disability which should have included such factors as [the employee's] "present and future ability to engage in gainful activity as it is affected by such diverse factors as age, sex, education, economic and social environment, in addition to the definite medical factor — permanent impairment."
Id. (citation omitted).
We note that the facts of this case are distinguishable from those at issue in Ortiz v. Industrial Commission, 766 P.2d 1092 (Utah Ct.App. 1989), Zimmerman v. Industrial Commission, 785 P.2d 1127 (Utah Ct.App. 1989), and Zupon v. Industrial Commission, 860 P.2d 960 (Utah Ct.App. 1993), which hold that unless the Commission concludes that an employee has suffered a compensable industrial injury , it will not consider "whether [the employee] qualifies for tentative permanent total disability." Zimmerman, 785 P.2d at 1132. " ' nless the claimant has suffered a compensable industrial injury, the [odd lot] doctrine is inapplicable no matter how compelling the other factors.' " Id. (quoting Ortiz, 766 P.2d at 1094). In these cases, unlike the present case, the claimants failed to establish medical causation between the industrial accident and the claimed impairment, and thus, the Commission was precluded from employing the sequential decision-making process or considering the odd lot doctrine. Accord Zupon, 860 P.2d at 962 (holding Commission did not err in finding claimant's arthritic condition, which was unrelated to industrial accident and was not caused by industrial injury, was cause of claimant's inability to work); Zimmerman, 785 P.2d at 1131 (holding findings of Commission that industrial accident did not in any way aggravate preexisting condition and all residual problems were due to preexisting condition were supported by substantial evidence); Ortiz, 766 P.2d at 1095 (holding Commission properly denied claimant's motion for permanent total disability where it adopted medical panel's view that prior industrial accident did not cause impairment, but rather, degeneration of back resulted from two subsequent car accidents and thus no medical causation existed).
In the instant case, Smith is a forty-five-year-old general laborer with a fifth grade education who lacks the ability to read well. The record contains uncontroverted evidence of his physical impairment and his inability to perform the work required by his former job or any similar work. Smith has not worked since the May 23, 1990 industrial accident. Moreover, the medical panel opined that adequate conditioning would be required to enable him to perform even light duty work. The Commission found that Smith's impairment due to his industrial accident was "not inconsequential." Additionally, the Commission found that since his last surgery in August 1992, Smith has been in continuous pain which has left him dependent on pain medications prescribed by his treating physician.
At the hearing before the ALJ, Smith testified that although he can walk some, he cannot walk around the block and he cannot sit. He further testified that when he travels by car, he has to lie down. Smith appeared at the hearing pushing a walker in front of him. He stood throughout the hearing and audibly groaned on occasion. The hearing was recessed at one point to permit Smith to lie down. As noted by Commissioner Carlson in his dissenting opinion, in light of Smith's age and illiteracy, his "injury at work unleashed a cascade of events that has left him permanently and total disabled."
The medical pane
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