Warehime v. State Ex Rel. Wyoming Workers' Compensation Division

THOMAS, Justice,

concurring.

I concur in the disposition of this case by reversal and remand with directions that the case be remanded to the hearing examiner for issuance of an order awarding additional benefits consistent with this opinion. I was not satisfied that the majority opinion, while it articulated the evidence supporting a mistake by the initial finder of fact, directly addressed the justification for the total permanent disability.

The parties did not present or argue the impact in this case of the “odd lot” doctrine. As that rule is traced through Schepanovich v. U.S. Steel Corporation, 669 P.2d 522 (Wyo.1983); Rose v. Westates Construction Company, 703 P.2d 1084 (Wyo.1985); and City of Casper v. Bowdish, 713 P.2d 763 (Wyo.1986), it appears to me that the “odd lot” doctrine justifies the conclusion that Warehime, in fact, was 100% totally disabled. It was mistakenly believed that he could benefit from a vocational rehabilitation program so that he might then be able to do 10% of the jobs listed in the Directory of Occupation Titles. That hope was not realized, however, and, in my judgment, the record demonstrated that Warehime had shown obvious physical *297impairment coupled with other facts such as mental capacity, education, training, or age which would, prima facie, place him in the odd lot category. The burden of proof then would shift to the employer to show the availability of employment for which Warehime reasonably was suited. Viewed in that perspective, the evidence does substantiate Warehime’s entitlement to permanent total disability.