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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Leigh v. Seekins Ford (05/12/2006) sp-6011
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| MARK LEIGH, | ) |
| ) Supreme Court No. S- 11270 | |
| Appellant, | ) |
| ) Superior Court No. 4FA-02-387 CI | |
| v. | ) |
| ) O P I N I O N | |
| SEEKINS FORD and LIBERTY | ) |
| NORTHWEST INSURANCE | ) No. 6011 - May 12, 2006 |
| COMPANY, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Richard D. Savell, Judge.
Appearances: James M. Hackett, Law Office of
James M. Hackett, Fairbanks, for Appellant.
Constance E. Livsey, Holmes Weddle & Barcott,
PC, Anchorage, for Appellees.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
After injuring his back while employed by Seekins Ford,
Mark Leigh unsuccessfully claimed permanent total disability
(PTD) benefits under the Alaska Workers Compensation Act. He
argues on appeal that Seekins Ford did not rebut the presumption
of compensability that, he claims, arose from evidence that
debilitating pain and pain medication kept him from working and
rendered futile efforts to find suitable employment. We conclude
that the Alaska Workers Compensation Board did not make
sufficient findings addressing Leighs evidence that he was
incapacitated by pain and pain medication. We therefore vacate
the superior court decision that affirmed the boards denial of
PTD benefits and remand for further proceedings.
II. FACTS AND PROCEEDINGS
Mark Leigh worked at Seekins Ford in Fairbanks from
1976 until February 1995, when he injured his back while working
as a service mechanic. After two back surgeries, Leigh returned
to Seekins Ford in a supervisory capacity. In August 1996 Leigh
underwent a third back surgery and has not returned to work. He
moved to and currently resides in Snowflake, Arizona, where he
had his fourth and most recent back surgery in March 1998. In
March 1999 a panel of doctors conducted an independent medical
examination and concluded that Leigh could work and attend
classes with some restrictions.
Leigh applied to the Alaska Workers Compensation Board
for permanent total disability (PTD) benefits in May 1999. At
the board hearing, Leigh presented evidence that he has
restricted motion in his back and suffers from depression, and
offered rehabilitation therapist Robert Sullivans report that
Leigh cannot return to work due to the effects of necessary
narcotic pain medications. Numerous friends, family members, and
co-workers also testified about Leighs pain and inability to
work. Seekins Ford offered contrary medical evidence; it also
offered testimony from rehabilitation counselor Betty Cross that
suitable work was available to Leigh.
The board found that Leigh had triggered the
presumption of compensability. It then found that Seekins Ford
had rebutted the presumption by producing evidence that [Leigh]
has the physical and mental abilities to perform regularly and
continuously available work that is available in the area.
Finally, it concluded that Leigh failed to prove his PTD status
by a preponderance of the evidence. It therefore denied his claim
for PTD benefits.
The superior court affirmed. Focusing on the medical
evidence that persuaded the board that Leigh had the physical and
mental capacity to work, the superior court held that Seekins
Ford presented sufficient evidence to rebut the presumption of
compensability. The superior court upheld the boards
determination that Leigh did not prove his claim by a
preponderance of the evidence and held that Seekins Fords
evidence of a regular, stable market for jobs suiting Leighs
abilities was sufficient.
Leigh appeals.
III. DISCUSSION
A. Standard of Review
In appeals from the board, we apply the substantial
evidence standard of review for questions of fact.1 Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.2 Whether the amount
of evidence is substantial is a question of law.3 We apply the
reasonable basis standard of review for questions of law
involving agency expertise, but apply the substitution of
judgment standard of review for questions of law outside the
agencys expertise.4 Whether the board made sufficient findings
is a question of law that we review de novo.5
B. The Board Procedurally Erred in Reaching Its Conclusion
that Leigh Was Not Permanently and Totally Disabled.
Alaska Statute 23.30.120(a)(1) establishes a
presumption for workers compensation purposes that injuries are
compensable.6 For the presumption to attach, the employee first
must establish a preliminary link between the disability and the
employment. After the employee demonstrates the link, the
employer may rebut the presumption with substantial evidence that
the employee is not PTD.7 To rebut the presumption of
compensability, an employer must show that there is regular and
continuously available work in the area suited to the employees
capabilities, i.e., that [he or she] is not an odd lot worker.8
If the employer presents substantial evidence that the employee
is not PTD, the presumption disappears and the employee must
prove [his or her] PTD claim by a preponderance of the evidence.9
The parties agree that Leigh was injured on the job and
that the presumption of compensability attaches. Leigh advances
two reasons for his contention that Seekins Ford failed to adduce
substantial evidence to rebut the presumption of compensability.
First, he argues that Seekins Ford did not present substantial
evidence to rebut alternative presumptions of compensability that
he argues were raised by evidence of his chronic pain and the
futility of searching for work. Second, he argues that Seekins
Ford presented insufficient evidence of regular and continuously
available work in the statutorily defined labor market.
1. The boards findings that Leigh could work were
insufficient to support its conclusion that he was
not totally and permanently disabled even though
he was suffering from severe, debilitating pain.
In defining permanent total disability, Alaska has
adopted the odd-lot doctrine, which states that total disability
may be found in the case of workers who, while not altogether
incapacitated for work, are so handicapped that they will not be
employed regularly in any well-known branch of the labor market.10
Leigh contends that he established alternative presumptions of
odd-lot status by demonstrating that he suffered from continuous,
severe and debilitating pain11 and that any search for employment
would be futile.12 Reasoning that Seekins Ford did not rebut
these presumptions, Leigh concludes that he is entitled to PTD
status.
Neither of Leighs alternative presumptions has been
recognized as established in Alaska law. Given the broad scope
of the statutory presumption of compensability,13 it is not
apparent from the present case that additional or alternative
presumptions are necessary to protect Alaskan workers. Nor is it
apparent how the alternative presumptions would benefit Leigh.
It seems likely that evidence sufficient to rebut Alaskas
statutory presumption of compensability would also rebut the
presumption Leigh would base on evidence that any search for
employment would be futile,14 or that he is incapacitated by pain.
Likewise, it is not apparent why evidence of a debilitating
medical condition caused by an employment injury would not give
rise to the statutory presumption. In any event, the parties
agree that the compensability of Leighs claim is presumed, and
the board found that the presumption of compensability attached
to Leigh. It is therefore not necessary to decide here whether
the alternative presumptions Leigh proposes are justified or
permitted under the Alaska Workers Compensation Act. Leighs
claim was unsuccessful not because the board failed to apply the
presumption in his favor, but because it found that Seekins Ford
had overcome that presumption and that Leigh ultimately had not
proved his claim by a preponderance of the evidence.
We therefore turn to the real crux of Leighs appeal.
Even if it does not create a presumption of compensability,
evidence of Leighs chronic pain and of the effects of pain
medication remains relevant to determining by a preponderance of
the evidence whether he is permanently and totally disabled.
Leigh argued before the board, and offered evidence to support
those arguments, that his chronic pain and the resulting pain
medication prevented him from obtaining employment.
The board must make findings on all contested issues.15
When deciding whether the issue was truly a contested one, we
must examine the record to determine if there are sufficient
indicia of factual development on the point in contention . . .
more than a bald assertion of a theory of recovery for which the
record contains no evidentiary basis of support. 16 When the
claimant introduces evidence that chronic pain prevents him or
her from working, the board must therefore make findings that
address whether that pain, either by itself or in combination
with other circumstances, including the effect of pain
medication, renders the claimant permanently and totally
disabled.
In this case many of the medical professionals noted
serious pain, and one specifically concluded that Leigh was not
exaggerating the pain. The board observed that Leighs treating
Arizona neurosurgeon, Dr. Stephen Ritland, wrote in December 1999
that [w]ith the ongoing medication required and with the ongoing
chronic pain and associated limitations, I do not believe that
[Leigh] would be effectively employable. The board also noted
that numerous friends, family members and coworkers testified
about Leighs pain and inability to work, despite his motivation
to work. Leigh took narcotic pain medication, and there was
evidence that these medications prevented him from working.
There was also circumstantial evidence permitting a
contrary conclusion, that pain and pain medications would not
prevent him from working. For example, as the board noted, a
psychological counseling chart indicated that Leigh was quite
active and mentioned activities including riding a motorcycle,
landscaping, doing computer work, fishing and shopping.
Nonetheless, even though the board discussed evidence
of chronic pain and the effects of narcotic pain medication, it
ultimately made no findings directly addressing the effects of
Leighs chronic pain and the narcotic pain medication on his
ability to work or the availability of suitable jobs.
Furthermore, it is difficult to reconcile the comments
in Dr. Ritlands December 1999 report (quoted by the board and
also set out above) with the boards statements (made at two
places in its decision) that Dr. Ritland concluded [that Leigh]
is neither physically, nor psychiatrically, precluded from work,
and that he is presently able to perform work in the sedentary
and light ranges. As the board noted earlier in its decision,
Dr. Ritland had predicted in 1998, after performing Leighs fourth
surgery, that Leigh would be able to perform light or light to
moderate work. Thus, Dr. Ritlands April 21, 1998 clinic note
stated that Leigh would be limited to light, or light to
moderate, activity in the long term, but that for retraining
purposes he could start on things such as reading and book work.
That note ultimately stated that whether [Leigh] would be limited
to strictly light activity or light to moderate activity would
depend on his recovery over the next 3 to 6 months. But six
months later, Dr. Ritland noted that Leigh is not ready to return
to work. . . . I dont anticipate that he will be able to return
to physical work. If he does return to work, I would anticipate
sedentary or office type work at some point in the future.
The board also found it significant that Dr. Ritland
had agreed in August 1999 with the conclusion, contained in the
report of the employer independent medical evaluation (EIME),
that Leigh could perform limited work. But the evidence shows
that in June 1999 Dr. Ritland agreed only with the EIME reports
conclusions about objective indications and limitations, and in
his clinic note of August 24, 1999 he wrote that it is difficult
to consider employment because [Leigh] does not tolerate sitting
or standing for more than a short period of time. Dr. Ritland
consistently distinguished between objective physical limitations
and subjective limitations associated with pain and pain
medication. His December 1999 clinic note expressed his opinion
that with the ongoing medication required and with the ongoing
chronic pain and associated limitations, I do not believe that he
would be effectively employable. In January 2001 he disagreed
that Leigh could perform the activities described in the job
analysis, given subjective limitations resulting from chronic
pain and narcotics. Dr. Ritlands statements that Leigh could do
some work were based on his assessment of the objective status of
Leighs back; after mid-1999 he appears to have invariably
qualified those statements with his opinion that chronic pain and
the effects of narcotic pain medication rendered Leigh
effectively unemployable.
It might have been permissible for the board, in
weighing the evidence, to have accorded little weight to Dr.
Ritlands opinion that chronic pain and the effects of pain
medication prevented Leigh from obtaining regular employment.
But the board did not do so explicitly. Nor did it explain why
it chose to credit Dr. Ritlands statements that Leigh could
perform light and sedentary work while disregarding his seemingly
more comprehensive opinion that Leigh was effectively
unemployable.
Leighs claim that chronic pain and the effects of
narcotic pain medication prevent him from obtaining employment
was an important part of his claim for PTD benefits. We express
no opinion whether substantial evidence would support a finding
that chronic pain and the effects of narcotic pain medication do
not render Leigh permanently and totally disabled. But the board
touched on evidence of chronic pain and narcotic pain medication
in relatively summary fashion. And it did not squarely address
Leighs contention that, in light of physical limitations, his
chronic pain and the required pain medication rendered him
incapable of regular employment or retraining. The board may
have thought that this contention was necessarily resolved by its
conclusion that Leigh was not psychiatrically precluded from
work. But in our view that conclusion does not dispose of his
claim that pain and pain medication prevented him from being
employed. We therefore vacate the superior courts appellate
decision that affirmed the boards denial of PTD benefits, and
remand for further proceedings. On remand the board must resolve
Leighs contentions about the effect of his ongoing pain and his
pain medication on his employability.17
2. Seekins Ford did not present substantial evidence
that work within Leighs abilities was regularly
and continuously available in the relevant labor
markets described in AS 23.30.180(a).
Leigh also argues that Seekins Fords evidence of
regular and continuously available work in the area is not
substantial because the employer did not conduct a labor market
survey in accordance with AS 23.30.180(a).18 That statute
provides that [i]n making [the PTD] determination the market for
the employees services shall be (1) area of residence; (2) area
of last employment; (3) the state of residence; and (4) the State
of Alaska.19
We interpret statutes so that no part will be
inoperative or superfluous, void, or insignificant.20 The list of
relevant labor markets in AS 23.30.180(a) would be superfluous if
evidence from the national labor market were sufficient to
demonstrate that regular employment was continuously available.
We have held that the requirement that the employer provide
evidence of regular and continuously available work in the
statutorily defined market has been satisfied by surveys of
specific and relevant markets.21 This implies that evidence about
the specific market is required. Moreover, as a general
proposition, we note that conditions affecting employment markets
in Alaska are sufficiently different from conditions affecting
employment markets in other parts of the country that evidence
specific to Alaska is normally required when Alaska is a relevant
labor market under AS 23.30.180(a).
In this case, Leigh relocated to Snowflake, Arizona.
The Snowflake area and the state of Arizona are therefore
relevant labor markets under AS 23.30.180(a)(1) and (3). But
because neither this court nor presumably the board has a great
deal of knowledge about job markets in Snowflake or Arizona, we
are unwilling to assume that they mirror national trends absent
specific evidence to that effect. Evidence that suitable regular
employment is continuously available elsewhere in the United
States generally does not prove regular and continuously
available employment in the labor markets specified by AS
23.30.180(a), absent evidence that the pertinent labor markets
are similar to the national market.
Seekins Ford presented the testimony of rehabilitation
counselor Betty Cross as evidence of regular and continuously
available work in the relevant labor markets. Leigh argues that
this testimony is insufficient to support the boards finding that
Seekins Ford successfully rebutted the presumption of
compensability. Cross had reviewed Leighs file and catalogued
his abilities, but had not spoken with Leigh or examined him.
She identified a number of jobs Leigh could perform despite his
limitations.22 But rather than testify that these jobs were
available in the labor markets described by AS 23.30.180(a),
Cross testified simply that these jobs were available to Leigh in
the real world. Cross testified that the positions of auto
rental clerk and airline security representative are available in
airports across this country. She testified that food and
beverage order clerks may find work in fast food restaurants and
other establishments. Because there are airports and fast food
restaurants in Alaska and Arizona, by implication these jobs are
available within the labor markets described by AS 23.30.180(a).23
Cross also testified that surveillance monitors are employed in
most major retail establishments, including a Sears store in
Anchorage.
Cross did not expressly testify that regular and
continuously available employment existed in the specific labor
markets listed in AS 23.30.180(a). It may be inferable from her
testimony that Cross believed that the sorts of jobs she
discussed are indeed available in the statutory markets pertinent
to Leigh. Although the evidence is sufficiently nonspecific that
we do not feel compelled to draw that inference, the board may
have done so. The board did not reject Crosss evidence as
insufficient, and did not fault the absence of specific surveys
of the pertinent markets. We note that market survey evidence is
often offered by employers. We have not held that a failure to
offer evidence of surveys of the statutorily specified employment
markets necessarily results in a failure to rebut the presumption
of compensability, even though the employer only offers other,
more general, evidence of employment availability.24 Because we
have not so held, and because we are remanding for consideration
of Leighs claim that pain and pain medication made him
unemployable, we also remand for consideration of the adequacy of
the labor market evidence. On remand Seekins Ford may present
specific evidence of regular and continuously available
employment in the relevant labor markets listed in the statute.25
Leigh also argues that Seekins Ford failed to rebut the
presumption of compensability because it did not present
sufficient evidence that jobs were actually available to him.
Our cases have not required employers to show job availability to
satisfy the statute. We decline here to adopt the United States
Court of Appeals for the Ninth Circuits apparent requirement that
under the federal Longshore and Harbor Workers Compensation Act
the employer identify a specific job as available.26 Other
circuits have not construed the Act to contain that requirement.27
We are not persuaded that the fortuity of a specific positions
availability at any given time determines that a regular market
for the job exists. Instead, the proper focus must remain on
whether the employer has presented substantial evidence that
there are jobs reasonably available in the relevant labor market
that the employee could realistically obtain and hold.28
Here, as we saw above, Cross testified that openings
occur for the jobs that she identified as suitable for Leigh.
She did not, however, testify that Leigh had a realistic chance
of obtaining and holding these jobs. On remand, Seekins Ford
will have the opportunity to supplement Crosss testimony with
additional evidence on this point.
Leigh additionally argues that by relying only on the
medical evidence and Crosss deposition testimony, the board
erroneously placed the burden of proof on Leigh to disprove the
universal negative of not being employable at any work.29 The
boards conclusion that an employer has successfully rebutted the
presumption of compensability may be based on medical evidence
and expert testimony of the availability of suitable jobs. And
once the employer adduces substantial evidence to rebut the
presumption of compensability, the burden of proving PTD status
by a preponderance of the evidence is properly shifted to the
claimant.30 Moreover, the presumption of compensability shifts
only the burden of production, not the burden of persuasion.31 On
remand, more specific evidence of regular and continuously
available jobs suiting Leighs abilities in the statutorily
defined job markets may help focus both parties arguments about
whether Leigh is permanently and totally disabled. Leigh will
therefore not be required to disprove, as he fears, a universal
negative.
V. CONCLUSION
We therefore REMAND to the superior court with
instructions to VACATE the boards decision and to REMAND to the
board for further proceedings consistent with this opinion.
_______________________________
1 Blanas v. Brower Co., 938 P.2d 1056, 1059 (Alaska
1997).
2 Cowen v. Wal-Mart, 93 P.3d 420, 424 (Alaska 2004)
(internal quotation marks omitted); see also Miller v. ITT Arctic
Servs., 577 P.2d 1044, 1049 (Alaska 1978).
3 Veco, Inc. v. Wolfer, 693 P.2d 865, 869 (Alaska 1985).
4 Robinson v. Municipality of Anchorage, 69 P.3d 489, 493
(Alaska 2003).
5 See Bolieu v. Our Lady of Compassion Care Ctr., 983
P.2d 1270, 1276 (Alaska 1999) (remanding because of the Boards
failure to make reviewable findings of fact concerning a
contested issue). Cf. L.G. v. State, Dept of Health & Soc.
Servs., 14 P.3d 946, 950 (Alaska 2000) (holding that whether
superior courts findings comport with requirements of Indian
Child Welfare Act is reviewed de novo as question of law).
6 AS 23.30.120 provides that (a) In a proceeding for the
enforcement of a claim for compensation under this chapter it is
presumed, in the absence of substantial evidence to the contrary,
that (1) the claim comes within the provisions of this
chapter . . . .
7 Carlson v. Doyon Universal-Ogden Servs., 995 P.2d 224,
227 (Alaska 2000).
8 Id. at 229 (internal quotation marks omitted).
9 Id. at 227.
10 Id. at 228 (quoting Olson v. AIC/Martin J.V., 818 P.2d
669, 674 (Alaska 1991)).
11 Kester v. Colonial Manor of Custer, 571 N.W.2d 376, 381
(S.D. 1997).
12 See Jarvis v. Rexburg Nursing Ctr., 38 P.3d 617, 622
(Idaho 2001).
13 Meek v. Unocal Corp., 914 P.2d 1276, 1279-80 (Alaska
1996) (holding that presumption of compensability applies to all
claims under workers compensation statute, including claims for
PTD benefits).
14 Compare Kester, 571 N.W.2d at 381 (requiring as
rebuttal showing that there is suitable employment available in
the claimants community that will accommodate claimants
limitations) with Carlson, 995 P.2d at 229 ([A]n employer must
show that there is regularly and continuously available work in
the area suited to the employees capabilities, i.e., that [he or
she] is not an odd lot worker.) (internal quotation marks
omitted).
15 See Bolieu, 983 P.2d at 1276 (remanding because of the
Boards failure to make reviewable findings of fact concerning a
contested issue).
16 Id. at 1275 (quoting Davis v. Dist. of Columbia Dept of
Employment Servs., 542 A.2d 815, 820 (D.C. 1988)).
17 Leigh argues that Seekins Ford did not rebut the
presumption of compensability arising from his showing of
alternative grounds for odd-lot PTD entitlement. He therefore
concludes that he is entitled to a remand for an award of
benefits. We do not regard these theories as stand-alone grounds
for conferring PTD benefits on Leigh. These theories necessarily
require assessment of what Dr. Ritland regarded as subjective
considerations. We think the board had to decide whether the
evidence supported these subjective considerations.
18 As a preliminary matter, we note that Leighs brief does
not document the preservation of this issue before the board and
the superior court. An unsupported statement at oral argument
that the issue had been preserved would not satisfy the
controlling rule. See Alaska R. App. P. 212(c)(8)(B) (Appellants
brief shall indicate the pages of the record where each point on
appeal was raised in the trial court. If the point on appeal was
not raised in the trial court, the brief shall explain why the
point is raised for the first time on appeal.). Because we do
not ordinarily consider arguments raised for the first time on
appeal, Crittell v. Bingo, 83 P.3d 532, 536 n.19 (Alaska 2004),
it is important that an appellant explain exactly how and where
each issue on appeal was preserved in proceedings below.
Fortunately for appellant, appellees counsel candidly stated at
oral argument that the appellant had preserved the issue below.
We therefore consider the merits of this argument.
19 AS 23.30.180(a).
20 See City of St. Marys v. St. Marys Native Corp., 9 P.3d
1002, 1008 (Alaska 2000) (internal quotation marks omitted)
(interpreting state statute regulating municipal taxation).
21 See Carlson v. Doyon Universal-Ogden Servs., 995 P.2d
224, 229 (Alaska 2000) (evidence of Anchorage labor market
survey); Summerville v. Denali Ctr., 811 P.2d 1047, 1051 (Alaska
1991) (evidence of Anchorage labor market survey).
22 Cross testified that Leigh could work as an auto rental
clerk, gate guard, surveillance system monitor, food and beverage
order clerk, charge account clerk, parking enforcement officer,
and airline security representative.
23 We note that the court could take judicial notice of
the fact that there are airports, fast food restaurants, and
department stores in Alaska and Arizona. See Alaska R. Evid.
201(b) (A judicially noticed fact must be one not subject to
reasonable dispute in that it is either (1) generally known
within this state or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonably be questioned.).
24 However, as Professor Larson has noted, it should not
be enough to show that claimant is physically capable of
performing light work, and then round out the case for non-
compensability by adding a presumption that light work is
available. 4 Arthur Larson, Larsons Workers Compensation Law
84.01[3] (2000). Professor Larson bases this view on the well-
known fact of modern economic life that the demand for unskilled
and semiskilled labor has been rapidly declining and recognition
that the great bulk of the persistent hard-core unemployment of
the United States is in these categories. Id.
25 Cf. Robles v. Providence Hosp., 988 P.2d 592 (Alaska
1999). We there remanded for award of benefits after holding
that the employer, by failing to offer evidence of availability
of work, failed to overcome the presumption of compensability.
Id. at 598. Here Seekins Ford offered at least some evidence on
the issue.
26 See, e.g., Hairston v. Todd Shipyards Corp., 849 F.2d
1194, 1196 (9th Cir. 1988).
27 See, e.g., Bunge Corp. v. Carlisle, 227 F.3d 934, 941
(7th Cir. 2000); Trans-State Dredging v. Benefits Review Bd., 731
F.2d 199, 201 (4th Cir. 1984); New Orleans (Gulfwide) Stevedores
v. Turner, 661 F.2d 1031, 1042-43 (5th Cir. 1981); Air Am., Inc.
v. Dir., Office of Workers Comp. Programs, 597 F.2d 773, 779 (1st
Cir. 1979).
28 Accord Carlisle, 227 F.3d at 941 (requiring employer to
show that there were jobs Carlisle was capable of performing and
that those jobs were reasonably available in the community in
which Carlisle was able to compete and whether they could
realistically be secured). The United States Court of Appeals for
the Fifth Circuit has also stated that:
Job availability should incorporate the
answer to two questions. (1) Considering the
claimants age, background, etc., what can the
claimant physically and mentally do following
his injury, that is, what types of jobs is he
capable of being trained to do? (2) Within
this category of jobs that the claimant is
reasonably capable of performing, are there
jobs reasonably available in the community
for which the claimant is able to compete and
which he could realistically and likely
secure.
29 See Lyons v. Indus. Special Indem. Fund, 565 P.2d 1360,
1363 (Idaho 1977).
30 Carlson, 995 P.2d at 227.
31 See Veco, Inc. v. Wolfer, 693 P.2d 865, 869 (Alaska
1985).
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