(dissenting) — In its unpublished opinion (Spring v. Department of Labor & Indus., 28 Wn. App. 1034 (1981)), the Court of Appeals observed that "since there is nothing in the record to the contrary and observing the words used in the findings of fact and the order of dismissal that the court did consider the merits, we must assume it did." I agree. As did the Board of Industrial Insurance Appeals, the trial court, and the Court of Appeals, I would uphold the Department of Labor and Industries which awarded the plaintiff 42 percent of the maximum allowable for unspecified disabilities.
The majority cites extensively from Kuhnle v. Department of Labor & Indus., 12 Wn.2d 191, 120 P.2d 1003 (1942), and Fochtman v. Department of Labor & Indus., 7 Wn. App. 286, 499 P.2d 255 (1972). While I agree both cases are relevant to the matter before the court, I believe the majority misapplies them both. Kuhnle established the rule that
if an accident leaves the workman in such a condition that he can no longer follow his previous occupation or any other similar occupation, and is fitted only to perform "odd jobs" or special work, not generally available, the burden is on the department to show that there is special work that he can in fact obtain.
Kuhnle, at 198-99. This burden applies only when the claimant is fitted to do nothing but odd jobs or special work. The meaning of the Kuhnle rule was clearly stated by the Court of Appeals in its unpublished opinion:
If the employee or the claimant can do light work of a general nature, then the presumption is that his inability to obtain employment is due to fluctuations in the labor market and is not due to the consequences of the accident. In that circumstance the burden is on the claimant to show there is no work he can obtain.
If the accident leaves the workman so injured he is fit only for odd jobs or special work not generally available *922in the labor market, then the department or the employer must show that this special employment is available. In Kuhnle the court reversed, holding there was sufficient evidence in the record to justify submission of the case to the jury and the trial court erred in deciding as a matter of law that the claimant was not permanently and totally disabled. But that court did not decide as a matter of law the workman was totally permanently disabled, which claimant Spring sought in his motion for summary judgment.
In Fochtman, the court found that a prima facie case of total disability can be made (1) when the claimant establishes he was able to work prior to the injury but unable to work afterwards due to pain and the injury; (2) when medical experts have testified to the loss of function and limitations in the claimant's ability to work; and (3) when vocational experts have concluded the worker is not employable in the competitive labor market. The Fochtman court, while stating "[w]e do not pass on the merits of the case" (Fochtman, at 293), found that there was a prima facie case of total disability, that this was a question of fact and that the case should go to the jury.
Fochtman refused to adopt a rule which would require a medical rating of the disability in order to establish permanent total disability. Rather, it stated the rule to be that the medical rating of the disability considered with the opinion of the vocational consultant, may establish permanent total disability. The Fochtman court carefully considered the characteristics of total disability and permanent total disability:
It is a hybrid quasi-medical concept in which there are intermingled in various combinations, the medical fact of loss of function and disability, together with the inability to perform and the inability to obtain work as a result of his industrial injury. A workman may be found to be totally disabled, in spite of sporadic earnings, if his physical disability, caused by the injury, is such as to disqualify him from regular employment in the labor market. Indeed, if the injury has left the workman so disabled that he is incapable of becoming a workman of *923acceptable capacity in any well-known branch of the labor market — if his capacity to work is no longer a merchantable article in the labor market — it is incumbent upon the department to show that such special employment can, in fact, be obtained by him. Kuhnle v. Department of Labor & Indus., supra; 2 A. Larson, The Law of Workmen's Compensation §§ 57 and 57.71 (1971).
Proof of permanent total disability is more individualized than proof of permanent partial disability. The testimony necessarily requires a study of the whole man as an individual — his weakness and strengths, his age, education, training and experience, his reaction to his injury, his loss of function and other relevant factors that build toward the ultimate conclusion of whether he is, as a result of his injury, disqualified from employment generally available in the labor market. In the ultimate determination of whether the injured workman can maintain gainful employment in the labor market with reasonable continuity we find the testimony of a vocational or employment expert both relevant and admissible.
Fochtman, at 294-95.
In both Kuhnle and Fochtman, in contrast to this case, the trial courts had not decided the cases on the merits. Here it is plainly stated by the court both in its findings of fact and in its order of dismissal that the case was decided on the merits. Neither Kuhnle nor Fochtman require that the mere conclusion of a vocational expert as to the total disability of the claimant requires the finding of permanent total disability as a matter of law. The trier of fact has the right to select those witnesses believed to be more credible and is not bound by the conclusion of the vocational expert. That is exactly what occurred in this case.
The correct analysis and disposition of this case was made by the Court of Appeals whose conclusions I quote:
In this case, the court made the following finding of fact No. 5:
Plaintiff has not established a total inability to perform any type of light or sedentary work, and he could physically perform such gainful employment on a reasonably continuous basis on August 5, 1976.
The court also reached conclusion of law No. 2:
*924Plaintiff has failed to made [sic] a prima facie case because of failure to establish total inability to perform any type of light or sedentary work.
Claimant complains of finding of fact No. 6, made by the trial court:
The only expert testimony purporting to show total disability from all employment incorporates conclusions regarding plaintiff's ability to obtain work.
The court then states in conclusion of law No. 4:
Plaintiff's expert testimony is legally insufficient to establish total and permanent disability because it relies in part upon plaintiff's ability to obtain gainful employment.
Claimant then argues that under the odd-lot doctrine the burden is upon the defendant, not the claimant, to show the availability of work for the claimant. The trial court in this instance made a conclusion of law No. 3:
The defendant did not, on the basis of this record, have any burden of showing the availability of light or sedentary work to the plaintiff.
It appears the court decided this matter on the merits and found the claimant's labor capability was such that he could perform light or sedentary work, thus believing the testimony of the three medical doctors to that effect. Therefore, conclusion of law No. 3 is correct that the burden is upon the claimant to show nonavailability of light or sedentary work and not on the defendant to do so.
Conclusion of law No. 4 appears to us to be possibly erroneous if it is to be interpreted that the plaintiff's expert testimony, along with the medical doctors' testimony, is legally insufficient in every case to establish total permanent disability. It is incorrect if applied to an odd-lot situation, but not incorrect if applied to the situation where the claimant is able to do light and sedentary work on a reasonably continuous basis. Construed with conclusion of law No. 2, No. 4 is not reversible error.
The court's finding that plaintiff has not established a total inability to perform any type of light or sedentary work and that he could physically perform such gainful employment on a reasonably continuous basis on August 5, 1976, forms the basis for a conclusion that plaintiff does not come within the odd-lot doctrine and thus has the burden of showing such employment was not avail*925able. It is only after a worker has established his odd-lot status that the department or the employer must come forward with a job opportunity.
In view of the state of the record presented to us on appeal, we must conclude the trial court reached a permissible conclusion in a trial on the merits and probably reached the same conclusion erroneously on the defendant's motion for summary judgment.
Spring v. Department of Labor & Indus., Court of Appeals unpublished opinion.
I agree with the Court of Appeals and dissent.
Brachtenbach, C.J., and Stafford, J., concur with Dolliver, J.