dissenting.
After a close review of the record, it is clear that the Industrial Commission’s decision is not supported by substantial and competent evidence. Therefore, I dissent.
The Industrial Commission’s conclusions of law are freely reviewable by this Court. Taylor v. Soran Rest., Inc., 131 Idaho 525, 527, 960 P.2d 1254, 1256 (1998). Factual findings will be upheld if supported by substantial and competent evidence. Id.
In the present case, the Commission adopted the referee’s findings of fact, but not the conclusions of law or recommendation. In its decision, the Commission found that the facts to which Seufert testified established that he had not proven odd lot status. The Commission held that Seufert did not provide enough facts to establish that he had looked for other employment. It also found that Seufert had tried to find work in areas that exceeded his physical capabilities, Seufert had not met with a vocational rehabilitation expert to help him find other employment, and that Seufert had not provided any evidence of what light, sedentary jobs were available in St. Maries.
As the majority notes, the findings of fact are undisputed in this case.
Seufert testified that he had looked for employment in Washington and Idaho as a logger, carpenter, and mechanic, but that either no one was hiring, or no one would hire him due to his injuries. He testified that he needed to take frequent breaks, could not stand for very long, walked with a cane, and needed to guard his skin graft against temperature changes. Seufert, Henry Larson, Old Farm Tree Service, and its surety all agreed at the hearing that Seufert was totally and permanently disabled following the industrial accident. The referee found that Seufert had established odd lot status through the third method, futility.
Seufert is a sixty-year old man who did not complete high school. Seufert lives in St. Maries, Idaho, a logging and milling town with a population of approximately 2,500 people. He has been employed in the logging industry almost all of his life. He suffered severe injuries following a motorcycle accident, but he returned to a heavy labor position in the logging industry for over fifteen years. Heavy manual labor in the logging industry or as a mechanic is the type of work for which Seufert is trained. After suffering an industrial accident that caused extensive damage to his left leg, he looked for other employment, although he testified no one would hire him because of his injuries. He did not offer evidence of what light duty employment might be available.
The Commission’s findings appear to be based on its belief that Seufert is able to *596work. Yet, that conclusion is not supported by substantial and competent evidence in the record. The Commission parsed Seufert’s testimony in an effort to meet the substantial and competent evidence standard. The Commission noted that Seufert did not meet with a vocational rehabilitation expert, but this Court has not required that of a claimant in order to prove odd lot status. Even if Seufert had met with a vocational rehabilitation expert, it is highly unlikely that continuous employment would have been found in the St. Maries area for Seufert. Lighter jobs at a fast food restaurant or convenience store involve a great amount of standing. Janitorial work involves standing and bending. The Commission’s finding that Seufert must enter a new profession, after almost forty years as a logger, at an age when many are considering retirement, and with employment-limiting injuries, is contrary to the purpose of the odd lot doctrine.
The evidence in the record supports Seufert’s claim that he is totally and permanently disabled under the odd lot doctrine. Because I would find that Seufert did establish total and permanent disability under the odd lot doctrine, I would also find that apportionment should be calculated pursuant to I.C. § 72-332. I would reverse the Commission’s decision in this case.