1 IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 35923
FILADELFO FUNES,

Claimant

- Appellant,

v. AARDEMA DAIRY, Employer, and STATE INSURANCE FUND, Surety,

Defendants

- Respondents ) ) ) ) ) ) ) ) ) ) Boise, August 2010 Term

2010 Opinion No. 112

Filed: November 24, 2010
Stephen Kenyon, Clerk

Appeal from the Industrial Commission of the State of Idaho.

The decision of the Industrial Commission is affirmed

. Greg J. Fuller, Twin Falls, for appellant.
Eberle, Ber lin, Kading, Turnbow & McKlveen, Chtd., Boise, for respondent s

.

SUBMITTED ON THE BRIEFS

_______________________________________________
HORTON, Justice
Mr. Filadel fo Funes (Funes) sustained an on

- the

- job injury in January 2005 . Funes argued before the Idaho Industrial Commission (Industrial Commission or Commission) that his injuries resulted in either permanent total disability or a substantial permanent partial d isability. The Industrial Commission found that Funes was not totally disabled but had suffered a 25% permanent partial disability. Funes appeals, arguing that the Industrial Commission erred in its calculation or, in the alternative, that the Industrial Commission erred in not finding Funes to be
an “odd l ot” worker for whom no other employment is regularly available. Aardema Dairy (Aardema) , Funes‟ former employer, and the State Insurance Fund, Aardema‟s surety, seek attorney fees on appeal under Idaho Appellate Rule 11.2. 1 We affirm, but do not award attorney
fees.

1 Aardema Dair y cites to I.A.R. 11.1. The previous I.A.R. 11.1 was renumbered as I.A.R. 11.2 on March 19, 2009, effective July 1, 2009.2 I . FACTUAL AND PROCEDURAL BACKGROUND
Funes was born in Honduras and moved to the United States in the late 1990s. He speaks only Spanish and does not read or write in any language. Befor e comi ng to the United States,
Funes drove a tax i and truck. In January 2005, while working at Aardema Dairy, Funes picked up a newborn calf and injured his back

. Following initial medi c al care, Funes was referred to Dr. David Verst for ongoing care. On May 2, 2005, Dr. Verst performed lumbar surgery. On May 19, Dr. Verst noted that Funes‟ neurological exam was normal and that Funes reported only mild back pain. The diminished pain continued through June 27, when Dr. Verst released Funes to

return to w ork with restrictions.
Dr. Verst re

- evaluated Funes on July 21, 2005
, and Funes claimed that he was unable to return to light duty work

. Funes‟ complaints continued through August 2005, notwithstanding the fact that the pain was not corroborated by any sign of recurrent herniation . On August 23, 2005, Dr. David Christensen conducted an MRI that resulted in Dr. Christensen‟s diagnosis of right sacroiliitis or right sacroiliac joint (SI) d y sfunction. Dr. Christensen felt that Funes could return to light

- duty wor k with weight restrictions. On November 10, 2005, Funes was treated by
Dr. Clinton Dill é who noted that Funes‟ symptoms appeared to be “greatly exaggerated.” Despite Funes ‟ continued treatment
, his complaints of pain increased. Dr. Verst eventua lly
determined that he had no additional recommendations for treatment and released Funes from his

care . Dr. Ve rst then referred Funes to Dr. K. Cheri Wiggins who treated Funes from March 2006 to February 2007. Dr. Wiggins noted that Funes demonstrated “ regionalization and pain behaviors” alongside “symptom magnification.” Funes returned to Dr. Verst in March 2007
, and
Dr. Verst found that Funes‟ symptoms were greater than indicated by objective MRI find ings. On April 12, 2007
, Aardema Dairy and the St ate Insurance Fund arranged for Funes to be
evaluated in an Independent Medical Examination (IME) by a panel including orthopedic surgeon Dr. Joseph Daines, psychiatrist Dr. Eric Holt, and ne urologist Dr. Richard Wilson. The IME panel determined that Fune s could perform light

- to

- medium work activities
, with lifting limited to 50 pounds occasionally and 25 pounds on a regular basis , with limited bending and stooping

. Dr. Verst later responded to a questionnaire stating that he agreed with the IME ‟s
conclus ions. Funes was also evaluated by neurologist Dr. Michael O‟Brien on September 11, 2007. Dr. O‟Brien agreed that Funes was medically stable but disagreed with previous partial permanent impairment (PPI) ratings made by Dr. Wi ggins (12%) and Dr. Verst (10 %) . Dr.3

O‟Brie n‟s opinion was that Funes should receive a 20% PPI rating. Dr. Verst testified in a post

hearing depositio n that , in his opinion
, Funes‟ neck symptoms we re not related to the industrial injury and that he did not see a basis for the 20% PP I rating assigned by Dr. O‟Brien.
B efore th e Industrial Commission , Funes argued that he was medically disabled from returning t o any sort of work , that his PPI was at least 10% and as high as 20%
, and that his permanent partial disability (PPD) was sub stantially in excess of PPI. He also argued that he should be reimbursed for a variety of medical costs. The evidence considered by the Industrial Commission included testimony by Funes, exhibits submitted by Funes, exhibits submitted by Aardema Dairy an d the post

- hearing deposition of Dr. David Verst. The exhibits submitted by
Funes included : medical records of St. Benedicts Family Medical Center; m edical records and reports of St. Benedicts Fa mily Clinic and Dr. Gary Meyers; r eports of Jerome Physi cal Therapy and Sports Medicine; records of Drs. David Christensen, David Verst, K. Che ri Wiggins, and Michael O‟Brien; F unes‟ 2003 and 2004 tax returns; billings by Dr. Wiggins and pharmaceutical billings for Lyrica ; 2 the records of Mr. Greg Taylor of the Ind ustrial Commission‟s
Rehabilitation Division ; and Funes‟ first, second
, and third supplemental answers to Aardema‟s interrogatories and request for production. The exhibits submitted by Aardema included records and reports of Drs. Thomas H. Zepeda, David M. Christensen, David Verst, K. Cheri Wiggins, Clinton Dillé, and Richard Wilson
, along with a radiology report from Magic Valley Regional Medical Center and a list of benefits paid. The Industrial Commission found that Funes was entitled to $1,536.22 i n unpaid medical expenses, that Aardema and the State Insurance Fund were not entitled to reimbursement for temporary di s ability benefits already paid, and that Funes was entitled to attorney fees for the unreasonable denial of payment of medical bills. T he Industrial Commission further found that Funes was not permanently disabled “either by the 100% method or as an odd

- lot worker” and was entitled to a whole person PPD of 25%. Funes filed a motion for reconsideration of the
Industria l Commision‟s order. The C ommission denied that motion on October 21 , 2008. Funes now appeals.

2 Dr. Wiggins prescribed Lyrica for pain management.4 II . STANDARD OF REVIEW The standard of review in cases appealed from the Industrial Commission is strictly circumscribed by statute. Idaho Code § 72

- 732 provides that this Cour t may only overturn a
decision of the Industrial Commission where: (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; (4) The findings of fact do not as a matter of law support the order or award. The standard of review based on I.C. § 72

- 732 has been articulated by this Court as follows:
When this Court reviews a decision of the Industrial Commission, it exercises free review over questions of law, but reviews questions of fact only to determine whether substantial and competent e vidence supports the Commission‟ s findings. Substantial and competent evidence is relevant evidenc e that a reasonable mind might accept to support a conclusion. Because the Commission is the fact finder, its conclusions on the credibility and weight of the evidence will not be disturbed on appeal unless they are clearly erroneous. This Court does not w eigh the evidence or consider whether it would have reached a different conclusion from the evidence presented. Whether a claimant has an impairment and the degree of permanent disability resulting from an industrial injury are questions of fact.
Eacret v. Clearwater Forest Indus. , 136 Idaho 733, 735, 40 P.3d 91 , 93 (2002) (citations omitted) (quoted in Bradford v. Roche Moving & Storage, Inc.
, 147 Idaho 733, 736, 215 P.3d
453 , 456 (2009)). “ Substantial evidence is more than a scintilla of proof, but less than a preponderance. It is relevant evidence that a reasonable mind might accept to support a conclusion.” Jensen v. City of Pocatello , 135 Idaho 406 , 412 , 18 P.3d 211 , 217 (2000) (quoting Zapata v. J.R. Simplot Co.
, 132 Idaho 513, 515, 975 P.2d 1178, 11 80 (1999 ) ).
II I. ANALYSIS
A. The Industrial Commission’s d etermination that Funes suffered a 25% partial permanent disability is supported by substantial and competent evidence.
Assessment of disability under Idaho worker‟s compensation law is calculated according

to the following factors. “P ermanent impairment” is the “ anatomic or functional abnormality or loss after maximal medical rehabilitation has been achieved and which abnormality or loss, medically, is considered stable or nonprogressive at the t ime of evaluation. ” I.C. § 72

- 422. A degree of permanent disability is calculated based on the extent to which “ the actual or presumed 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

- 423.5

“ Total and permanent disability may be proven either by showing that the clai mant‟ s permanent impairment together with nonmedical factors totals 100% or by showing that the claimant fits

w ithin the definition of an odd

- lot worker. ” Christ ensen v. S.L. Start & Assoc. , Inc. , 147 Idaho 289, 292, 207 P.3d 1020 , 1023 ( 2009 ) (citing Jarvis v. Rexburg Nursing Ctr. , 136 Idaho 579,
583

- 84 , 38 P.3d 617, 621

- 22 (2001) ). Funes makes two arguments d isputing the Industrial Commission‟s findin g of a 25% permanent partial disability

. 3 First, he argues that the find ing of a 25% PPD ignored Dr. Verst ‟s finding that Mr. Funes‟ “ job opportunities are very limited because of his lack of education, inability to speak English and work history focused on labor.” Second, Funes argues that despite a finding of “symptom exaggeration” by the Industrial Commission, the Commission otherwise ignored any finding of chronic pain. We reject Funes‟ first argument, reg arding the Commission‟s finding regarding Funes‟ job opportuni ties. The Commission applied the standard reiterated in Graybill v. Swift & Co. of

“ whether the physical impairment, taken in conjunction with non

- medical factors, has reduced
the claimant's ca

pacity for gainful activity.” 115 Idaho 293, 294, 766 P.2d 763
, 764 (198 8).
This standard incorporates relevant non

- medical factors including “ the diminished ability of the afflicted employee to compete in an open labor market within a reasonable geograp hical area considering all the personal and economic circumstances of the employee, and other factors as the commission may deem relevant

. . . . ” I.C. § 72

- 430. The Industrial Commission considered Funes‟ background and language skills alongside its con sideration of the labor market and concluded that Funes suffered a 25% disability . Because there is substantial and competent evidence to support the Commission‟s finding, Funes‟ first argument fails. The second argument, regarding the Commission‟s non

- c onsideration of the pain factors is slightly more complex

. This Court has previously held that “ a permanent disability rating need not be greater than the impairment rating if, after consideration of the non

- medical factors
in I.C. § 72

- 425, the claimant ‟ s „ probable future abilit y to engage in gainful activity‟ is accurately reflected by the impairment rating. ” Graybill , 115 Idaho at 294, 766 P.2d at 764. In Graybill , the Court noted the Commission‟s finding that “ if an impairment evaluatio n had been
bas ed solely upon a „discrete physiological deficit,‟ without considering subjective limitations such as chronic pain, then it would be appropriate to separately consider pain in arriving at the

3 Funes‟ further argument that he is an odd

- lot worker is treated in Sectio n III.B., infra

.6

disability evaluation. ” Id

. at 295, 766 P.2d at 765. Pain may be considered as a medical factor, a

non

- medical factor, or both
, but it must be considered. However, Funes is incorrect in contending that the Commission failed to consid er Funes‟ complaints of chronic pain

. T h e Industrial Commission based its evaluat ion of PPI on Funes‟ claims of “debilitating chronic pain

. ” T he Commission based its decision in part on Dr. Verst‟s responses to a February 18, 2006 questionnaire
, which requested an assessment based on the
AMA Guides to the Evaluation of Permanent Impai rment

. The AMA Guides inclu de an entire chapter devoted to assessments based on pain. AMA Guides to the Evaluation of Permanent Impairment ch. 18 (5th Ed.) ; see also Pomerinke v. Excel Trucking Transport, Inc. , 124 Idaho 301, 307, 859 P.2d 337 , 343 (1993 ) (“[T] he Commission in the present case cited the AMA Guides merely in support of its supposition that the medical panels included pain in their impairment ratings. ”). Thus, contrary to Funes‟ claim, there is substantial and competent
evidence in the rec ord that Funes‟ objective pain was considered by the Industrial Commission in its calculation of “a 10% whole person PPI as a result of his occupational injury.”
We find that the Industrial Commission used the correct legal standards for determining
Fun es‟ PPD , that the Commission did consider Funes‟ pain in determining the calculation of his impairment, and that the Commission‟s determination of Funes‟ PPD was based on substantial and competent evidence.
B. The Industrial Commission’s finding that Funes was not an odd l ot worker was supported by substantial and competent e vidence

. Funes further claims that the Industrial Commission erred by rejecting his claim of being an “odd lot” worker. An odd lot employee is someone “ who is so injured that he can p erform no services other than those which are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist [such that he] may well be classified as totally
disabled. ” Arnold v. Splendid Bakery , 88 Idaho 455, 463 , 401 P.2d 271, 276 (1965) ; see also Jarvis v. Rexburg Nursing Ctr. , 136 Idaho 579, 584, 38 P.3d 617, 622 (2001)

. “A claimant may establish a prima facie case of odd

- lot disability status as a matter of law only if „the evidence is undisputed and is reaso nably susceptible to only one interpretation.‟ The burden of proving a prima facie case of odd

- lot status is on the claimant.” Boley v. State, Indus. Special Indem. Fund , 130 Idaho 278, 281, 939 P.2d 854, 857 (1997) (quoting Lethrud v.
Indus. Special Inde m. Fund , 126 Idaho 560, 563, 887 P.2d 1067, 1070 (1995)). The Boley Court
went on to note that a determination of the nature or availability of employment is a fact

- finding7

that will not be disturbed on a showing that substantial and competent evidence ex ists in the
record. Boley , 130 Idaho at 281, 939 P.2d at 857. In this case, the Industrial Commission made a finding that alternative employment opportunities existed, citing “driving jobs without loading/unloading requirements and [ ] various types of r estaurant work.” By concurring with the IME panel‟s determination that Funes “ is able to perform light to medium type w ork with permanent restrictions
, ” the Commission specifically
considered the labor market for someone in Funes‟ condition

. W hile Funes argues that his pain is a basis for finding him to be an odd lot worker, Funes‟ pain was taken into consideration by
the Commission and the Commission identified types of work that the various physicians
involved agreed he could perform. These findings we re based upon the substantial and competent evidence necessary to support the Commission‟s finding. We therefore conclude that
the Industrial Commission did not err in finding that Funes is not an odd lot worker. C. We deny Aardema ’s request for at torney fees under I.A.R. 11.2

. Aardema argues that it is entitled to attorney fees under I.A.R. 11.2. Aardema argues that
both Talbot v. Ames Constr uction , 127 Idaho 648, 904 P.2d 560 (1995) , and Stolle v. Bennett
, 144 Idaho 44, 156 P.3d 545 (2007), support al lowing attorney fees in worker‟s compensation cases. Particularly, Aardema points to the Court‟s finding in Stolle that “[t]his Court has awarded attorney‟ s fees when the appealing party is simply asking the Court to reweigh the evidence and credibility d eterminations. ” 144 Idaho at 51, 156 P.3d at 552. The Court in Talbot relied on two factors: first, the admission during oral argument that substantial and competent evidence existed for the Commission‟s finding. 127 Idaho at 653, 904 P.2d at 565. Secon d, the Court found “ that [Talbot] presented no legal arguments as a basis for his appeal

. . . .” Stolle
, 144 Idaho at 51, 156 P.3d at 552 (describing the findings in Talbot ). In Stolle , these factors were
combined with a low dollar amount at issue and e xtensive argument regarding attorney fees. Id. Idaho Appellate Rule 11.2 “ serves to sanction attorneys who violate the certification that they made when signing a notice of appeal” and warrants attorney fees where an appeal “ was so far outside the real m of reasonability that it warrants a sanction on the losing attorney. ” Fowble v. Snoline Exp., Inc. , 146 Idaho 70, 77, 190 P.3d 889, 896 (2008). This Court has also noted that even where claims were dubious, “ sanctions under Rule 11.1 would not be award ed where the Court could not conclude that the appeal was interposed for an improper purpose. ” Bradford v. Roche Moving & Storage, Inc.
, 147 Idaho 733, 737, 215 P.3d 453 , 457 (2009). We n ote that this8

appeal has been decided on the briefs and that all br iefing submitted on Funes‟ behalf was prepared by an attorney who died during the pendency of this appeal. T he purposes underlying the sanctions of I.A.R. 11.2 would not be advanced by imposing a sanction against the deceased

. In view of Funes ‟ limited e ducation and illitera cy, we are unable to determine that he bears responsibility for the legal arguments advanced on his behalf. For these reasons, we decline to award attorney fees under I.A.R. 11.2.
I V. CONCLUSION
We affirm the Industrial Commission‟s determination s that Funes suffered a 25% PPD
and that Funes is not an odd lot worker

. W e deny Aardema‟s request for attorney fees

. Costs to Respondents.

Chief Justice EISMANN, Justices BURDICK, J. JONES and Justice Pro Tem TROUT
CONCUR

.