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Gary Brown v. the Home Depot

March 7, 2012

GARY BROWN, CLAIMANT-APPELLANT,
v.
THE HOME DEPOT, EMPLOYER,
AMERICAN HOME ASSURANCE COMPANY, SURETY, STATE OF IDAHO
INDUSTRIAL SPECIAL INDEMNITY FUND,
DEFENDANTS-RESPONDENTS.



Appeal from the Industrial Commission of the State of Idaho.

The opinion of the court was delivered by: Horton, Justice.

2012 Opinion No. 49

Stephen Kenyon, Clerk

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

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 pre-existing 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.

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 pre-existing 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 pre-existing 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 pre-existing 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.

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 ...


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