                IN THE SUPREME COURT OF THE STATE OF IDAHO

                                      Docket No. 38076

GARY BROWN,                                        )
                                                   )
     Claimant-Appellant,                           )       Twin Falls, November 2011 Term
                                                   )
v.                                                 )       2012 Opinion No. 49
                                                   )
THE HOME DEPOT, Employer,                          )       Filed: March 7, 2012
AMERICAN HOME ASSURANCE                            )
COMPANY, Surety, STATE OF IDAHO                    )       Stephen Kenyon, Clerk
INDUSTRIAL SPECIAL INDEMNITY                       )
FUND,                                              )
                                                   )
     Defendants-Respondents.                       )

       Appeal from the Industrial Commission of the State of Idaho.

       The decision of the commission is vacated and the case is remanded for
       proceedings consistent with this opinion.

       Ludwig Shoufler Miller Johnson, LLP, Boise, for appellant. Daniel A. Miller
       argued.

       Bowen & Bailey, LLP, Boise, for respondents The Home Depot and American
       Home Assurance Company. William S. Wigle argued.

       Mallea Law Offices, Meridian, for respondent State of Idaho, Industrial Special
       Indemnity Fund. Kenneth L. Mallea argued.
            _______________________________________________

HORTON, Justice.
       This appeal arises from a decision of the Industrial Commission (Commission). Gary
Brown (Brown) filed a complaint with the Commission, seeking disability benefits after he
injured his back while working for The Home Depot (Home Depot). Arguing that the injuries
caused by the accident, in combination with his preexisting conditions, left him permanently and
totally disabled, Brown sought workers’ compensation benefits from both Home Depot and the
Idaho Industrial Special Indemnity Fund (ISIF). The Commission determined that Brown was
not permanently and totally disabled. Brown timely appealed.


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       Brown contends that the Commission erred by evaluating his ability to find work based
upon his access to the local labor market at the time his medical condition stabilized in 2005. He
argues that his labor market access should have been evaluated as of the date of the Commission
hearing in 2009. Brown also argues that the Commission based its finding that he was 95 percent
disabled on an incorrect understanding of the expert testimony of Douglas Crum (Crum), whose
opinions the Commission apparently found to be persuasive. Brown argues that if the
Commission had properly considered Crum’s testimony, it would have found him to be 100
percent disabled. Alternatively, Brown argues that the Commission erred because the award of
disability benefits was inconsistent with its apparent acceptance of Crum’s opinions.
       Brown asks this Court to remand this matter to the Commission with instructions to find
him permanently and totally disabled as a matter of law or to reevaluate his disability rating in
light of the proper labor market conditions. In the alternative, Brown asks that this matter be
remanded with instructions to award greater disability benefits based upon Crum’s opinion. We
vacate the Commission’s decision and remand for proceedings consistent with this opinion.
                    I. FACTUAL AND PROCEDURAL BACKGROUND
       Brown began working part-time for Home Depot in 2001. While delivering a cabinet to a
Home Depot customer in 2004, Brown slipped on snow-covered steps and injured his back. He
received conservative treatment for the injury, but his condition worsened and he resigned from
Home Depot in November, 2004. Brown underwent back surgery in early 2005 but had a
difficult recovery and he was not found to be medically stable until December 8, 2005.
       Brown filed a complaint with the Commission in 2007, seeking an award of total and
permanent disability benefits. In 2008, Brown filed a complaint against ISIF, seeking an award
of benefits for his preexisting impairments. The hearing on these claims was conducted on
November 18, 2009.
       Brown’s surgeon rated Brown’s permanent impairment at 12 percent as a result of the
Home Depot industrial accident. Brown also had two preexisting injuries that resulted in
permanent impairment ratings. First, Brown had two back surgeries in 2000, which resulted in a
permanent impairment rating of 13 percent. Brown also had his left lung removed in 1982, which
resulted in an impairment rating of 55 percent. Adding the new and preexisting ratings, the
Commission found that Brown’s overall permanent physical impairment was 80 percent.
       Brown’s ability to secure employment was hotly contested at the disability hearing.

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Before going to work at Home Depot, Brown had a successful career as an engineer, managing
large construction projects for Morrison-Knudsen. Brown retired in 1990, at age 43, believing
that his investments would sustain him through retirement. However, in the aftermath of the
stock market crash of 2000, Brown determined that he needed to return to work, at least on a
part-time basis, and he went to work for Home Depot. Brown testified that he had wanted to
resume his engineering career following his industrial accident. However, at the time of the
hearing, he did not believe he was competent to work as an engineer. Brown also testified that he
applied to work as a real estate agent, but was not hired by any of the firms he contacted.
       The Commission received evidence from four vocational rehabilitation experts who had
evaluated Brown’s ability to secure employment. Brown’s expert, Nancy Collins, (Collins),
concluded that Brown was “unemployable,” and testified that he was totally and permanently
disabled under the odd-lot doctrine. Her conclusions were based on the labor market that existed
at the time of the hearing in 2009. Home Depot’s vocational expert, Crum, concluded that Brown
was either 26 or 40 percent disabled, depending upon which medical restrictions the Commission
determined were most appropriate. Crum also testified that his opinion was based on the 2009
labor market, but because the market in 2005 was better, his opinion would be the same for
either market. ISIF’s vocational expert, William Jordan, expressed his opinion that Brown was
not totally disabled and testified that his report assessed Brown’s employability at the time of the
disability hearing in 2009. The Commission’s rehabilitation consultant, Cindy Lijewski, believed
that Brown was employable between December of 2005 and June of 2006.
       After the hearing, the Referee issued his Findings of Fact, Conclusions of Law, and
Recommendation which the Commission adopted in their entirety. Emphasizing that Brown’s
disability must be evaluated as of the time that he reached maximum medical improvement,
rather than the time of hearing, the Commission concluded that Brown was not permanently and
totally disabled and rated his disability at 95 percent. Taking into account Brown’s preexisting
conditions and benefits already paid, the Commission awarded him benefits for 27 percent
permanent disability. Brown appealed the Commission’s finding that he is not totally and
permanently disabled. Neither party requests attorney fees on appeal.
                                 II. STANDARD OF REVIEW
       When this Court reviews an Industrial Commission decision, it “exercises free review
over questions of law . . . .” Fowble v. Snoline Exp., Inc., 146 Idaho 70, 74, 190 P.3d 889, 893

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(2008) (citing Stolle v. Bennett, 144 Idaho 44, 47-48, 156 P.3d 545, 548-49 (2007)). The
interpretation of “a legislative act, such as the worker’s compensation statutes, presents a pure
question of law . . . .” Daleiden v. Jefferson Cnty. Jt. Sch. Dist. No. 251, 139 Idaho 466, 468, 80
P.3d 1067, 1069 (2003) (quoting Crawford v. Dep’t of Corr., 133 Idaho 633, 635, 991 P.2d 358,
360 (1999)).
                                        III. ANALYSIS
       The central dispute in this appeal arises from two opinions of this Court regarding which
labor market should be used when evaluating permanent disability. Relying on Davaz v. Priest
River Glass Co., Inc., 125 Idaho 333, 870 P.2d 1292 (1994), Brown contends that the
Commission erred as a matter of law by holding that his labor market access must be determined
as of the time he reached medical stability in 2005, rather than at the time of the Commission
hearing in 2009. ISIF concurs with Brown on this pivotal question of law. Home Depot responds
that our recent decision in Stoddard v. Hagadone Corp., 147 Idaho 186, 207 P.3d 162 (2009)
governs this issue and that the Commission properly focused on the labor market at the time
Brown reached medical stability. We agree with Brown and ISIF and hold that the Commission
should consider a claimant’s labor market access as of the date of the hearing.
       A workers’ compensation claimant is permanently disabled when his “ability to engage in
gainful activity is reduced or absent because of permanent impairment and no fundamental or
marked change in the future can be reasonably expected.” I.C. § 72-423. A permanent disability
rating 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
nonmedical factors as provided in section 72-430, Idaho Code.” I.C. § 72-425. A claimant may
prove total and permanent disability “either by showing that the claimant’s permanent
impairment together with nonmedical factors totals 100% or by showing that the claimant fits
within the definition of an odd-lot worker.” Funes v. Aardema Dairy, 150 Idaho 7, 11, 244 P.3d
151, 155 (2010) (citing Christensen v. S.L. Start & Assoc., Inc., 147 Idaho 289, 292, 207 P.3d
1020, 1023 (2009)).
       Access to a labor market is central to either method of demonstrating that a claimant is
totally and permanently disabled. Among the relevant non-medical factors the Commission must
consider in determining a disability rating is “the diminished ability of the afflicted employee to
compete in an open labor market within a reasonable geographical area considering all the

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personal and economic circumstances of the employee . . . .” Id. (quoting I.C. § 72-430(1)). A
claimant’s status as an odd-lot worker may be established by showing that: “(1) he or she
attempted other types of employment without success; (2) he or she, or vocational counselors or
employment agencies on his or her behalf, . . . searched for other work and other work [was] not
available; or (3) any efforts to find suitable employment would be futile.” Magee v. Thompson
Creek Mining Co., 142 Idaho 761, 765, 133 P.3d 1226, 1230 (2006) (alteration in original,
internal quotation marks removed) (quoting Jarvis v. Rexburg Nursing Ctr., 136 Idaho 579, 584,
38 P.3d 617, 622 (2001)). Thus, the Commission must consider the claimant’s access to the local
labor market in order to determine whether a claimant is 100 percent disabled or whether the
claimant is an odd-lot worker.
A. The Commission erred in holding that a claimant’s labor market access must be
evaluated as of the date of maximum medical improvement.

       Brown and ISIF contend that the Commission should have considered Brown’s access to
the labor market at the time of the hearing in 2009. In Davaz, we held that “the time of the
hearing is the crucial point at which a claimant’s permanent disability is to be permanently
settled.” 125 Idaho at 337, 870 P.2d at 1296. However, Home Depot correctly observes that we
recently stated that “[t]he proper date for disability analysis is the date that maximum medical
improvement has been reached. I.C. § 72-422.” Stoddard, 147 Idaho at 192, 207 P.3d at 168. The
Commission relied upon this statement in Stoddard in reaching its conclusion.
       At first blush Davaz and Stoddard appear to contradict each other. However, these
decisions did not address the same issue. In Davaz, the claimant moved from Priest River, where
he lived at the time of the injury, to Missoula, where he lived and worked at the time of hearing.
Davaz, 125 Idaho at 335, 870 P.2d at 1294. Thus, the dispute in Davaz was whether the
“reasonable geographic area” that the Commission was required to consider when applying I.C.
§ 72-430(1) centered around Priest River or Missoula. This Court held that “the market in which
a claimant resides at the time of the hearing” is the market that determines the scope of the
“reasonable geographic area.” Id. at 338, 870 P.2d at 1297. The Court considered both the
statutory language and the purpose of permanent disability awards, stating that when “the
‘personal and economic circumstances of the employee’ at the time of the hearing do not reflect
a compensable need, then the spirit of the workers’ compensation law would not be served by



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awarding disability based upon an antecedent, but no longer existing, need.” Id. at 337, 870 P.2d
at 1296.
       In contrast, Stoddard was not about labor markets at all. In that case, Stoddard sustained
injuries in four accidents, three of which resulted from industrial accidents. Stoddard, 147 Idaho
at 189, 207 P.3d at 165. After the first hearing, the Commission found that Stoddard was
permanently and totally disabled under the odd-lot doctrine, and that the last accident caused
Stoddard to suffer total and permanent disability. Id. The surety responsible for payments
resulting from the final industrial accident then brought an action against ISIF seeking
contribution for a proportionate share of disability benefits, which resulted in a second hearing.
Id. At the second hearing, the Commission found that Stoddard was still permanently and totally
disabled, and that ISIF was not liable because the disability was not the result of any
combination of pre-existing impairment and the last industrial accident. Id. at 189-90, 207 P.3d
at 165-66. On appeal, the surety argued that the Commission “erred by evaluating Stoddard’s
disability at the date of the second hearing” and “that the proper date for analysis is the date of
the last industrial accident.” Id. at 192, 207 P.3d at 168. We affirmed the Commission’s decision,
noting that Stoddard was found totally and permanently disabled at the first hearing and that the
Commission’s holding “merely stated that six years after the first hearing Stoddard was still
permanently disabled.” Id. (emphasis original). Our statement regarding “the proper date for
disability analysis” cited to I.C. § 72-422, which defines permanent impairment, not permanent
disability. Id. Our holding in Stoddard was not meant to contradict or overrule Davaz, but to
emphasize, contrary to the surety’s argument, that no disability determination could be made
prior to the determination of permanent impairment, which cannot be evaluated until maximum
medical improvement has been reached. See I.C. §§ 72-422, 424.
       Under I.C. § 72-425, the permanent disability rating is a measure of the claimant’s
“present and probable future ability to engage in gainful activity.” The word “present” implies
that the Commission is to consider the claimant’s ability to work as of the time evidence is
received. There is no “present” opportunity for the Commission to make its determination apart
from the time of hearing. As we stated in Davaz, it is the claimant’s personal and economic
circumstances at the time of the hearing, not at some earlier time, that are relevant to the
disability determination. 125 Idaho at 337, 870 P.2d at 1296. Therefore, we hold that the relevant



                                                6
labor market for evaluating the non-medical factors under I.C. § 72-430 and in determining a
claimant’s odd-lot worker status is the labor market at the time of the hearing.
         We recognize that this holding, if not qualified, may create an incentive for litigants to
seek to expedite or delay the hearing in order to take advantage of changing economic
conditions. In Davaz, we did note an exception to the general rule that should eliminate this
incentive:
         Granted, there may be instances where a market other than the claimant’s
         residence at the time of the hearing is relevant to the I.C. § 72-430(1) inquiry, and
         such determinations should be made on a case by case basis based on individual
         facts and circumstances. See e.g. Lyons v. Industrial Special Indem. Fund, 98
         Idaho 403, 565 P.2d 1360 (1977) (court allowed evidence from market vacated by
         claimant after injury as well as market of residence at the time of the hearing).

Davaz, 125 Idaho at 337, 870 P.2d at 1296. In Lyons, this Court stated: “After his last injury,
appellant moved from Orofino, Idaho, to New Meadows, Idaho. A claimant should not be
permitted to achieve permanent disability by changing his place of residence. Therefore, in
meeting its burden the Fund can introduce evidence of an actual job within either community.”
Lyons, 98 Idaho at 407 n.3, 565 P.2d at 1364 n.3.
         Thus, in an instance where the Commission perceives that a party has taken an action that
has the effect of manipulating the outcome of a disability determination, the Commission
possesses the authority to disregard the effect of that action. In the present context, if the
Commission determines that a party has delayed the hearing, resulting in an advantage to that
party because of a change in the labor market, the Commission may consider the applicable labor
market at the time the hearing would have taken place. 1 We do not view this exception to be
applicable to the present case, as there is no suggestion that any party delayed the hearing in
order to secure such an advantage.
         In this case, Brown attempted to establish both lack of access to his local labor market
and his status as an odd-lot worker with evidence from Collins, his vocational expert. Collins
stated that Brown was not competitive in the labor market and that his job search would have
1
  We do not intend to suggest that an injured worker is automatically qualified for odd-lot status solely due to a lack
of employment opportunities in the applicable labor market due to temporary economic conditions at the time of
hearing. Nor do we suggest that a worker may be disqualified from odd-lot status due to a labor market that is
unusually favorable to prospective employees at the time of hearing. Rather, there are ebbs and flows in broad
economic conditions which may affect local labor markets. Given the humane objectives underlying our workers’
compensation scheme, the Commission may disregard the effects of temporary fluctuations in the applicable labor
market resulting from changing economic conditions when determining whether the employee’s personal
circumstances demonstrate a compensable need.

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been futile. Relying on Stoddard, the Commission stated that Brown’s disability “must be
evaluated at the time he reached maximum medical improvement” in 2005, “and not at the time
of the hearing.” The Commission then determined that Brown was not permanently and totally
disabled, finding that his physical impairment plus the non-medical factors did not exceed 100
percent and that he did not qualify as an odd-lot worker. In making both findings, the
Commission expressly discounted Collins’s opinion as “not persuasive” because it was based on
her evaluation of Brown’s employability at the time of the hearing rather than at the time of
medical stability. As the Commission’s determination of Brown’s disability rating was
predicated upon its application of an incorrect legal standard, we vacate the decision of the
Industrial Commission and remand for additional proceedings consistent with this opinion.
B. We do not address the remainder of the issues on appeal.
        Brown asks this Court to remand to the Commission with instructions to find that he was
100 percent disabled or, alternatively, with instructions to award him increased permanent
disability benefits based upon his claim that the Commission accepted, but misunderstood,
Crum’s opinions. In view of the commandment of Art. V, § 9 of the Idaho Constitution that our
review “shall be limited to a review of questions of law,” we decline to intrude upon the
Commission’s role as finder of fact. 2 Because we vacate and remand in order for the
Commission to reconsider its decision based upon the labor market at the time of hearing, the
Commission will have the opportunity to consider all evidence previously presented and clarify
the bases of its decision.
                                            IV. CONCLUSION
        We hold that the claimant’s labor market at the time of the disability hearing is the proper
labor market to be used in evaluating the claimant’s disability. Because the Commission applied
the incorrect legal standard, we vacate the Commission’s decision and remand for further
proceedings. Costs to Brown.

        Chief Justice BURDICK and Justices EISMANN, J. JONES and W. JONES CONCUR.




2
   Despite our unwillingness to intrude upon the fact-finding role of the Commission, we note our difficulty in
understanding how the Commission arrived at its conclusion as to the percentage of permanent disability based upon
its apparent acceptance of Crum’s testimony.

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