                IN THE SUPREME COURT OF THE STATE OF IDAHO

                                      Docket No. 34151

PERRY JOE FOWBLE,                      )
                                       )
                  Claimant-Respondent, )
                                       )
v.                                     )
                                       )                   Boise, May 2008 Term
SNOLINE EXPRESS, INC., Employer, and   )
LIBERTY NORTHWEST                      )                   2008 Opinion No. 101
INSURANCE CORPORATION, Surety,         )
                                       )                   Filed: August 1, 2008
     Defendants,                       )
                                       )                   Stephen W. Kenyon, Clerk
and                                    )
                                       )                   SUBSTITUTE OPINION.
STATE OF IDAHO, INDUSTRIAL             )                   THE PRIOR OPINION ISSUED
SPECIAL INDEMNITY FUND,                )                   JUNE 18, 2008 IS HEREBY
                                       )                   WITHDRAWN.
                  Defendant-Appellant. )
                                       )

         Appeal from the Idaho Industrial Commission. Referee Alan Reed Taylor.

         The decision of the Industrial Commission is affirmed. No attorney’s fees are
         awarded to respondent. Costs are awarded to respondent.

         Kirkendall Law Office, Boise, for appellant. Lawrence E. Kirkendall argued.

         Ludwig, Shoufler & Miller, Boise, for respondent. Daniel A. Miller argued.
                        ____________________________________

W. JONES, Justice

                             I. STATEMENT OF THE FACTS
       Perry “Joe” Fowble (Fowble) is a former truck driver who filed a claim against the Idaho
State Special Indemnity Fund (ISIF), alleging that he was totally and permanently disabled due
to the combined effects of his previous injuries and his most recent injury.       The Referee
concluded that Joe Fowble was indeed totally and permanently disabled as an “odd lot” worker,




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and apportioned liability between his employer’s surety and ISIF. The Industrial Commission
upheld the finding and ISIF accordingly appeals. 1
        Throughout his career, Fowble was employed at several locations:
        •   He worked at a potato processing plant in 1969.
        •   During most of the 1970’s he performed auto body work at Peterson Motors,
            Anderson Buick, and Miller Stephan.
        •   From 1979-1981, he worked at his own auto body shop.
        •   During the first part of the 1980’s, he began driving his own logging trucks.
        •   He hauled meat and potatoes for Armour Meats in 1986. At this job, Fowble often
            was required to unload containers exceeding 200 pounds.
        •   About 1994, Fowble began working for Navajo Express hauling beef from Boise to
            Ontario. He was not required to load or unload that freight. In September of 2001,
            Navajo Express terminated Fowble’s employment.
        •   Finally, in June 2003, Fowble began work as a truck driver for Snoline Express.
        Fowble’s most recent injury occurred on September 18, 2003 while in the employ of
Snoline Express. Fowble struck his knee after slipping and falling while unloading a carton of
flowers at Wal-Mart. As a consequence, Fowble’s knee was injured, and a tooth was knocked
out, another knocked loose. Dr. George Nicola treated Fowble, administering steroid knee
injections and ordering physical therapy. Fowble’s knee swelled and worsened due to the
physical therapy.      Dr. Nicola permitted Fowble to return to work on December 1, 2003.
Eventually, Fowble was forced to undergo arthroscopic surgery performed by Dr. Robert
Walker. Subsequent attempts at rehabilitation were unsuccessful. Dr. Walker forbade Fowble
from continuously lifting more than 35 pounds and from occasionally lifting 50 pounds.
        While recovering, Fowble sought employment by consulting with Danny Ozuna, an
Industrial Commission rehabilitation consultant. Despite submitting at least 100 applications
between March and December of 2004, Fowble enjoyed no success in his pursuit of
employment. He filed for Social Security Disability benefits on December 15, 2004. The
Referee concluded that Fowble’s left knee was worse than his right, and that his condition is
worse than before the accident at Wal-Mart. In fact, Fowble’s knee becomes swollen and causes

1
 The surety for Fowble’s employer has settled the workers’ compensation claim with Fowble and accordingly is not
part of this appeal.



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pain after an hour and a half of engaging in the everyday task of grocery shopping. In addition,
on January 28, 2004, Fowble had “a considerable amount of thigh atrophy,” and Dr. Walker
believed that Fowble’s symptoms would improve with further strengthening.
       Because of various factors including Fowble’s physical condition, vocational
rehabilitation expert Barbara Nelson believed that Fowble was totally and permanently disabled.
She determined through the Wide Range Achievement Test that Fowble could read at a third
grade level and spell at a second grade level. He therefore was functionally illiterate and unable
to complete job applications without assistance. Moreover, Douglas Crum, ISIF’s own expert,
maintained that Fowble possessed limited transferable skills and that his career prospects were
limited to entry-level jobs that, at best, paid nominally better than minimum wage.
       Prior to Fowble’s most recent injury, he sustained several other injuries:
       •   In 1969, he injured both knees and fractured an ankle after being struck by several
           falling boxes of French fries while he was in the midst of unloading freight for
           Carnation. The injury necessitated surgery from which Fowble recovered well.
       •   In 1991 Fowble was involved in an automobile accident that resulted in disk
           herniations and cervical fusion surgery. After two years, he eventually recovered
           from the surgery and noticed no significant residual limitations.
       •   On January 3, 1998, he injured his right knee in a slip-and-fall incident while
           employed by Navajo Express. Fowble underwent additional surgery as a result of this
           injury, returning to work within three months.
       •   On April 16, 2001, while still employed for Navajo, he re-injured his knees hauling a
           trailer that he erroneously believed to be secured to his cab.           When the trailer
           unexpectedly dropped, he was thrust forward, which caused his knees to smash into
           the dashboard. This accident resulted in surgery on his left knee.
       Dr. Peterson determined that Fowble’s right knee impairment was 10% of the lower
extremity, due to the 1998 injury. In 2001, Dr. Friedman rated Fowble’s left knee impairment at
2% of the whole person. Prior to the 2003 accident, Fowble’s whole person impairment totaled
6% according to the Referee. Also prior to the 2003 accident, Dr. Peterson issued a medical
statement as follows:




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          I have reviewed the independent medial (sic) examination done by Dr. Friedman.
          I agree with his findings (sic) specifically he does have a pre-existing
          degenerative condition to his knees, (sic) that alone may make it impossible for
          him to return to his driving occupation. I agree that he doesn’t need any specific
          permanent restrictions or limitation and would expect him to improve over time.

           Dr. Walker concluded that the 2003 accident caused permanent impairment of 5% of the
whole person, whereas Dr. Nicola maintained that no impairment resulted from that accident.
Walker opined that the 5% impairment was due to thigh atrophy that was separate from
preexisting degenerative changes, stating that due to “thigh muscle atrophy, [Fowble] is judged
to have a 5% impairment of the whole person, due to the 4 cm difference in thigh circumference.
Mr. Fowble also has preexisting degenerative changes of the articular cartilage which were not
included in his impairment rating as they preexisted his industrial injury,” and further stated that
“[o]f the 5% impairment of the whole person, there is no apportionment due to a preexisting
medical condition.” Fowble had attempted to improve his thigh atrophy, but only enjoyed
limited progress. The Referee sided with Dr. Walker because Dr. Nicola’s treatment produced
negative effects that prompted Fowble to return to Dr. Walker for treatment.
          Based on the foregoing facts, the Referee further concluded that Fowble was 65%
permanently disabled, and that he was an “odd lot” employee after the 2003 injury but not
before.


                                                 II. ISSUES
Issue 1: Whether the Commission’s finding that Fowble met his medical burden of proof was
clearly erroneous.

Issue 2: Whether the Commission’s finding that Fowble was not an “odd lot” employee before
the 2003 accident was clearly erroneous.

Issue 3: Whether Fowble is entitled to costs or attorney’s fees.


                                  III. STANDARD OF REVIEW
          When reviewing a decision of the Industrial Commission, this Court exercises
          free review over questions of law, but reviews questions of fact only to determine
          whether substantial and competent evidence supports the Commission's findings.
          Substantial and competent evidence is relevant evidence which a reasonable mind
          might accept to support a conclusion. It is more than a scintilla of proof, but less



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       than a preponderance. All facts and inferences will be viewed in the light most
       favorable to the party who prevailed before the Industrial Commission.

Stolle v. Bennett, 144 Idaho 44, __, 156 P.3d 545, 548-49 (2007) (internal quotations and
citations omitted).
       Moreover, the Supreme Court “will not disturb the Commission’s conclusions on the
weight of the evidence unless they are clearly erroneous.” Wheaton v. Indus. Special Indem.
Fund, 129 Idaho 538, 541, 928 P.2d 42, 45 (1996). It may set aside the Commission’s order or
award if:
       (1) the commission’s findings of fact are not based on any substantial competent
       evidence; (2) the commission has acted without jurisdiction or in excess of its
       powers; (3) the findings of fact, order or award were procured by fraud; or (4) the
       findings of fact do not as a matter of law support the order or award.

I.C. § 72-732; Page v. McCain Foods, Inc., 145 Idaho 302, __, 179 P.3d 265, 268 (2008).


                                 IV. LEGAL FRAMEWORK
       The provisions of workers’ compensation laws are to be liberally construed in favor of
the claimant, as the humane purposes they seek to serve leave no room for narrow, technical
construction. Kinney v. Tupperware Co., 117 Idaho 765, 769, 792 P.2d 330, 334 (1990). Idaho
Code § 72-424 provides that evaluation of permanent impairment “is a medical appraisal of the
nature and extent of the injury or disease as it affects an injured employee’s personal efficiency
in the activities of daily living, such as self-care, communication, normal living postures,
ambulation, elevation, traveling, and nonspecialized activities of bodily members.” As the
ultimate fact-finder, the Commission determines the extent of impairment, not a physician whose
opinions are advisory only. Urry v. Walker and Fox Masonry, 115 Idaho 750, 755, 769 P.2d
1122, 1127 (1989). But, the “causal relationship of an injury to the claimant’s employment must
be supported by at least some medical proof.” Politte v. Dept. of Transp., 126 Idaho 270, 273,
882 P.2d 437, 440 (1994). The claimant’s burden is met when he submits proof of causation “to
a reasonable degree of medical probability,” with “medical probability” being defined as “having
more evidence for than against.” Jensen v. City of Pocatello, 135 Idaho 406, 412, 18 P.3d 211,
217 (2000) (internal quotation omitted).




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         Idaho Code § 72-332(1) assigns liability to ISIF in circumstances in which a worker was
totally and permanently disabled due to an injury arising out of and in the course of his
employment, and the worker was already permanently physically impaired before the injury:
         If an employee who has a permanent physical impairment from any cause or
         origin, incurs a subsequent disability by an injury or occupational disease arising
         out of and in the course of his employment, and by reason of the combined effects
         of both the pre-existing impairment and the subsequent injury or occupational
         disease or by reason of the aggravation and acceleration of the pre-existing
         impairment suffers total and permanent disability, the employer and surety shall
         be liable for payment of compensation benefits only for the disability caused by
         the injury or occupational disease, including scheduled and unscheduled
         permanent disabilities, and the injured employee shall be compensated for the
         remainder of his income benefits out of the industrial special indemnity account.

         In order to trigger ISIF’s liability under I.C. § 72-332(1), the total and permanent
disability must be the result of the “combined effects” of the preexisting and subsequent
injuries. 2 If it is not, then ISIF is not liable. Bybee v. State, Indus. Special Indem. Fund, 129
Idaho 76, 81, 921 P.2d 1200, 1205 (1996). Regarding the “combined” requirement, the test is
“whether, but for the industrial injury, the worker would have been totally and permanently
disabled immediately following the occurrence of that injury.” Id. In order to be characterized
as “totally disabled,” a worker does not have to be literally totally disabled or unable to engage in
any activity worthy of compensation. Arnold v. Splendid Bakery, 88 Idaho 455, 463, 401 P.2d
271, 276 (1965). If he can perform only services so limited in quality, quantity, or dependability
that no reasonably stable market for those services exists, the worker is totally disabled. Id. Such
is the definition of an “odd lot” worker. Reifsteck v. Lantern Motel & Cafe, 101 Idaho 699, 700,
619 P.2d 1152, 1153 (1980).
         There are three methods of proving odd lot status. The proponent of the existence of odd
lot status must demonstrate: (1) the other types of employment that the worker attempted; (2)
that the worker, vocational counselors, employment agencies, or job services have
unsuccessfully searched for work for the worker; or (3) that any efforts of the employee to find
suitable employment would be futile. Dehlbom v. State, Indus. Special Indem. Fund, 129 Idaho
579, 582, 930 P.2d 1021, 1024 (1997). If the Commission finds that a worker falls within the odd

2
  This provision also requires three other elements not at issue here: (1) that there was a preexisting impairment; (2)
that the impairment was manifest; (3) that the impairment was a subjective hindrance. Bybee v. State, Indus. Special
Indem. Fund, 129 Idaho 76, 80, 921 P.2d 1200, 1204 (1996).



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lot category, it has made a factual determination; therefore, the factual finding will not be set
aside if supported by substantial and competent evidence. Reifsteck at 701, 619 P.2d at 1154. 3 If
the Commission finds that ISIF proved that the worker was an odd lot worker prior to the
subsequent injury, ISIF has successfully established a defense, as ISIF has disproved the
“combined” requirement of I.C. § 72-332(1). Bybee at 81-82, 921 P.2d at 1205-06.
         A claimant must presumptively establish that he was not an odd lot worker prior to the
last injury, a task that may be accomplished by “showing that [he] was working regularly at a job
at the time of injury.” Id. at 82, 921 P.2d at 1206. ISIF may overcome the presumption by
demonstrating that the claimant’s actual employment was due to a business boom, an employer’s
sympathy, temporary good luck, or a superhuman effort. Id. Additionally, since odd lot status
requires that no suitable occupation be available to the worker, ISIF must show that the search
for other suitable employment would have been futile. Id. at 82-83, 921 P.2d at 1206-07.
                                                 V. ANALYSIS
Issue 1: Whether the Commission’s finding that Fowble met his medical burden of proof was
clearly erroneous.
         ISIF objects to Dr. Walker’s medical finding that Fowble’s thigh atrophy was responsible
for the additional medical impairment, because Fowble also suffered from a preexisting
degenerative condition that may have been responsible for the additional lifting restrictions Dr.
Walker imposed, which means that it cannot possibly be determined that the restrictions related
to the thigh atrophy as opposed to the degenerative condition. However, given the fact that
Fowble was determined to be additionally impaired due to his thigh atrophy, as well as the
temporal proximity of the additional restrictions to the most recent accident, it is reasonable to
conclude that the most recent accident was the source of the additional lifting restrictions.
Therefore, it is reasonable to conclude that the most recent accident combined with the previous
conditions to place Fowble within the odd lot classification. Such a finding is supported by
medical evidence and it is not clearly erroneous to conclude that the medical evidence favors a
finding that Fowble fell within the odd lot category, especially given that the Commission need
only take contrary medical evidence as advisory.


3
  A claimant’s odd lot status is a question of law only when the evidence is undisputed and leaves open only one
interpretation as to whether the claimant possesses odd lot status. McCain Foods, Inc., 145 Idaho at __, 179 P.3d at
273.



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       Even if it is true that the degenerative condition may have caused the worsened condition,
that fact serves only as contrary evidence that the most recent accident caused Fowble’s
increased impairment. ISIF should not be able to escape liability every time it can present
evidence that “something else” may have caused a claimant’s injury. The degenerative condition
indeed may have caused the injury, but it also is possible that it did not, and substantial
competent evidence supports the Commission’s conclusion that it did not cause the injury.


Issue 2: Whether the Commission’s finding that Fowble was not an “odd lot” employee before
the 2003 accident was clearly erroneous.
       Substantial and competent evidence supports the Commission’s conclusion that Fowble
was not an odd lot worker prior to the injury, but was an odd lot employee afterward. Because
Fowble was employed at the time of his injury, it was ISIF’s burden to demonstrate that he was
already an odd lot employee. ISIF cites the evidence that supports the conclusion that Fowble
was an odd lot employee at the time of the accident (e.g., Fowble’s statement that he returned to
truck driving because “there wasn’t nothing else to go back to”). The contrary evidence that he
was not odd lot prior to the accident, though, is supported by substantial competent evidence.
The sufficiency of the evidence is found within Dr. Walker’s records as well as vocational
rehabilitation expert Barbara Nelson’s testimony regarding this exact point. Moreover, Dr.
Peterson stated that Fowble’s condition after the Navajo accident was likely to improve, and his
prediction that Fowble might not be able to return to the trucking occupation proved false. The
Court therefore will not reweigh the evidence, since odd lot status determination is a question of
fact, and the Commission’s conclusions are supported by substantial and competent evidence.
       ISIF argues that the odd lot doctrine should be extended to include a worker who returns
to unsuitable employment. In other words, ISIF argues that if the only work available to a
worker is unsuitable for him, then the worker was already odd lot before he accepted the
employment. However, the fact that a worker returned to unsuitable employment does not
necessarily render him an odd lot worker. It may be true that in some cases a worker returned to
unsuitable work because he was an odd lot worker, but in other cases a worker may have
returned to such work without being odd lot. If a party wishes to prove that someone is an odd
lot worker, that party should do so by proving that the worker’s return to unsuitable employment
required a superhuman effort. In other words, it is already possible to prove odd lot status by



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demonstrating that the worker returned to unsuitable employment, but it must be done by
demonstrating that the worker’s efforts were superhuman. In the present case, ISIF failed to
meet that burden of proof.

Issue 3: Attorney’s fees.
       Fowble seeks attorney’s fees under Idaho Appellate Rule 11.1. This rule states the
following:
       Every notice of appeal, petition, motion, brief and other document of a party
       represented by an attorney shall be signed by at least one (1) licensed attorney of
       record of the state of Idaho, in the attorney's individual name, whose address shall
       be stated before the same may be filed. A party who is not represented by an
       attorney shall sign the notice of appeal, petition, motion, brief or other document
       and state the party’s address. The signature of an attorney or party constitutes a
       certificate that the attorney or party has read the notice of appeal, petition, motion,
       brief or other document; that to the best of the signer’s knowledge, information,
       and belief after reasonable inquiry it is well grounded in fact and is warranted by
       existing law or a good faith argument for the extension, modification, or reversal
       of existing law, and that it is not interposed for any improper purpose, such as to
       harass or to cause unnecessary delay or needless increase in the cost of litigation.
       If the notice of appeal, petition, motion, brief, or other document is signed in
       violation of this rule, the court, upon motion or upon its own initiative, shall
       impose upon the person who signed it, a represented party, or both, an appropriate
       sanction, which may include an order to pay to the other party or parties the
       amount of the reasonable expenses incurred because of the filing of the notice of
       appeal, petition, motion, brief or other document including a reasonable attorney’s
       fee.

       This rule serves to sanction attorneys who violate the certification that they made when
signing a notice of appeal. We cannot say that this appeal was so far outside the realm of
reasonability that it warrants a sanction on the losing attorney. Fees therefore are not awarded.
                                       VI. CONCLUSION
       For the foregoing reasons, the Commission’s decision is affirmed and attorney’s fees are
not awarded to Respondent-Fowble. Costs to Respondent.


       Chief Justice EISMANN, Justices BURDICK, J. JONES AND HORTON, CONCUR.




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