Combs v. Kelly Logging

BAKES, Justice,

dissenting:

I dissent from the holding by the majority that as a matter of law the Missoula labor market cannot be included in claim*699ant’s “reasonable geographic area” within which his employability must be assessed. What constitutes an employee’s “reasonable geographic area” is a question of fact to be determined by the Industrial Commission after “considering all the personal and economic circumstances of the employ-ee_” I.C. § 72-430 (emphasis added). Here the “economic circumstances of the employee” were that for years he had lived in Salmon, but made his living working in the Missoula, Montana, area. In Finding of Fact XXIX, the commission found:

“Of additional significance is the fact that at the time of his accident and for an extended period of time prior to that, although Claimant’s home and family remained in Salmon, Claimant actually spent five out of seven days living in, or at least based out of, a motel in Missoula, Montana. We think these circumstances constitute those types of ‘personal and economic circumstances of the employee’ which the legislature has directed that we consider in assessing Claimant’s permanent disability under I.C. § 72-430. We therefore conclude that it is appropriate to include the labor market of Mis-soula, Montana, in Claimant’s ‘reasonable geographic area’ within which his employability must be assessed, since Claimant was not truly earning his living through work done in the Salmon area at the time of his accident or for some time prior to that. In other words, it does not seem unreasonable at this point to require Claimant to seek suitable medium and light duty work in Missoula, Montana or areas a comparable distance from Salmon which would allow him to return home to Salmon on the weekends, since this is exactly the type of arrangement under which he was gainfully employed prior to his injury. The record is devoid of any evidence that Claimant has sought such work in Missoula or areas a comparable distance from Salmon, nor is there any evidence that no labor market exists within those areas for medium and light duty work.” (Emphasis in original.)

Where there is substantial competent evidence to support the commission’s factual finding, such finding will stand on appeal. Idaho Const, art. 5, § 9; I.C. § 72-732(1); Johnson v. Bennett Lumber Co., 115 Idaho 241, 766 P.2d 711 (1988).

The majority opinion simply overlooks the fact that substantial competent evidence supports the commission’s finding. For many years preceding the accident, Combs voluntarily chose, for whatever reasons, not to work in his home town. Combs chose instead to make a city, several hours’ driving distance away, his place of employment.

The majority so narrowly constricts its reading of I.C. § 72-430 as to actually judicially modify the statute. By requiring the Industrial Commission to only consider the geographic area around an employee’s “home”, the majority directly contradicts the requirement of I.C. § 72-430 that “all the personal and economic circumstances of the employee” (emphasis added) be considered when factually determining the employee’s “reasonable geographic area.”

The narrow reading of I.C. § 72-430 presumes, as a matter of law, that all employees work at or near their homes. As the commission recognized, many employees in today’s mobile society choose to work away from their homes, returning periodically to be with their families. Indeed, many types of employment require away-from-home performance, e.g., trucking, shipping, busing, flying and traveling sales. Likewise, many jobseekers voluntarily choose to work in one place while making their home elsewhere for economic reasons {e.g., relatively better pay or promotion opportunities in the work area) and for personal reasons {e.g., relatively better living conditions at home or, perhaps, no desire to live at home).

While Combs’ injury prevented him from performing the type of work he performed while in Missoula, there is nothing in the record which indicates that it impaired his ability to continue to work in Missoula. If his injury prevented him from performing heavier duty employment which pays a higher hourly rate, that was evidence *700which the commission should, and did, consider in arriving at its factual findings. However, it is error for this Court to exclude the commission from considering that relevant evidence.

SHEPARD, C.J., concurs.