Opinion
No. 5-643 / 04-1819
Filed November 23, 2005
Appeal from the Iowa District Court for Pottawattamie County, James Heckerman, Judge.
Petitioner appeals from the district court's ruling on judicial review affirming the workers' compensation commissioner's decision. AFFIRMED.
Jacob J. Peters of Peters Law Firm, P.C., Council Bluffs, for appellant.
James W. Nubel of Burns Law Firm, Omaha, Nebraska, for appellee.
Considered by Mahan, P.J., and Hecht and Vaitheswaran, JJ.
Sam Guarino appeals from the district court's ruling on judicial review affirming the workers' compensation commissioner's decision. He contends the commissioner erred in apportioning his workers' compensation benefits. We affirm.
I. Background Facts and Proceedings.
The relevant facts of this case are not in dispute. Guarino began working for Griffin Pipe Products, Inc. ("Griffin Pipe") in March of 1989. He has worked in various positions at the company, most recently as cement liner.
Guarino has suffered four injuries while employed at Griffin Pipe. In 1989 he suffered a sprain to his right ankle, resulting in an eight- to ten-percent impairment rating to the right lower extremity. Guarino received no work restrictions as a result of the injury. In 1995 he injured his lower back which necessitated surgery. This injury resulted in an impairment rating of twelve percent of the whole person and a lifting restriction. Guarino was eventually awarded a twenty-five-percent industrial disability for the injury.
On January 16, 1999, Guarino tore his left rotator cuff and again underwent surgery. He was assigned an eight-percent permanent partial impairment rating of the upper left extremity and restricted from working overhead more than occasionally. Under Iowa's full responsibility rule, Guarino was found to have a thirty-five-percent industrial disability. Griffin Pipe was ordered to pay 175 weeks of compensation beginning October 23, 1999. Guarino returned to his position as cement liner with two modifications made to his work station in light of his impairments.
On January 8, 2000, Guarino suffered an injury to his right shoulder. He underwent surgery in March 2000, achieved maximum medical improvement on January 9, 2001, and was given a rating of fifteen-percent permanent partial impairment of the upper right extremity.
The deputy commissioner awarded Guarino an additional seventy-percent industrial disability for the right shoulder injury and gave no credit for the industrial disability paid earlier for the back and left shoulder. Griffin Pipe appealed to the workers' compensation commissioner.
The commissioner found Guarino's 2000 right shoulder injury caused a ten-percent loss of earning capacity in comparison to his condition immediately prior to the injury. The commissioner also determined Guarino's 1999 left shoulder injury caused a ten-percent loss of earning capacity when measured separately. Guarino's back injury resulted in a twenty-five-percent loss of earning capacity. The commissioner found Guarino's overall loss of earning capacity to be forty-five percent after adding together all three injuries.
The commissioner also found that Guarino's 2000 right shoulder injury occurred during the period in which compensation was payable for the 1999 left shoulder injury. Under Iowa Code section 85.36(9)(c) (2001), the commissioner then apportioned Guarino's benefits equally between the 1999 left shoulder injury and the 2000 right shoulder injury. Because the award made in the case of the 1999 injury exceeded Griffin Pipe's liability for that injury in the case at bar, the commissioner credited it toward Griffin Pipe's liability in this case.
Guarino appealed to the district court, arguing the commissioner erred in his method of apportionment. The district court found substantial evidence to support the commissioner's award and affirmed.
II. Scope and Standard of Review.
We review a district court's review of agency action for correction of errors of law. Midwest Auto. III, L.L.C. v. Iowa Dep't. of Transp., 646 N.W.2d 417, 422 (Iowa 2002). Our review is limited to determining whether the district court correctly applied the law in exercising its section 17A.19(8) (2003) judicial review function. Herrera v. IBP, Inc., 633 N.W.2d 284, 287 (Iowa 2001). We apply the standards of section 17A.19 to the agency action and determine whether our conclusions are consistent with those of the district court. Brown v. Quik Trip Corp., 641 N.W.2d 725, 727 (Iowa 2002).
III. Analysis.
Iowa Code section 85.36(9)(c) provides:
In computing the compensation to be paid to any employee who, before the accident for which the employee claims compensation, was disabled and drawing compensation under the provisions of this chapter, the compensation for each subsequent injury shall be apportioned according to the proportion of the disability caused by the respective injuries which the employee shall have suffered.
This section applies where an employee suffers a compensable injury while the employee is incapacitated to work because of another compensable injury and is receiving disability or healing period benefits. Mycogen Seeds v. Sands, 686 N.W.2d 457, 466 (Iowa 2004).
The commissioner found section 85.26(9)(c) applied because the right shoulder injury occurred during the period during which compensation was payable for the left shoulder injury. Guarino argues this finding was in error because although compensation was payable for the left shoulder injury at the time of the right shoulder injury, he was not incapacitated to work. We disagree.
In Mycogen Seeds, the claimant, Sands, was found to be permanently partially disabled with a forty-percent permanent disability resulting from a 1995 injury. Id. at 462. Sands had returned to work with a lifting restriction when he injured himself again. Id. at 460. Sands was also entitled to compensation for his first injury at the time the second occurred. Id. at 467. Given these facts, our supreme court determined the apportionment statute applied. Id. at 468. The circumstances are substantially similar here, where Guarino had previously been permanently partially disabled and had returned to work with modifications to accommodate his disability. Guarino injured himself during the time he was still entitled to receive compensation for the earlier injury. We find no error in the conclusion that section 85.26(9)(c) applies to this case. Accordingly, we affirm.
Although we do not agree with the commissioner's method of apportioning the compensation for permanent partial disability between the two injuries, we agree with the final result and will not disturb the calculations on appeal.
AFFIRMED.
Vaitheswaran, J., concurs; Hecht, J., concurs in part and dissents in part.
I respectfully dissent because I believe the agency erred in its interpretation of the applicable law. The commissioner's appeal decision regarding apportionment of disability benefits is based on statutory interpretation. Mycogen Seeds v. Sands, 686 N.W.2d 457, 464 (Iowa 2004). The legislature has not delegated special powers to the agency to interpret Iowa Code section 85.36(9)(c) (2003). Id. Accordingly, this court need not give deference to the commissioner's interpretation and may substitute its judgment de novo for that of the agency. Id.
The "full responsibility rule" does not apply to this appeal if, before the injury for which he currently claims compensation, Guarino "was disabled and drawing compensation." See Iowa Code § 85.36(9)(c). Guarino first contends the commissioner erred in interpreting the statute in such a way as to make it applicable to this case. In particular, Guarino contends section 85.36(9)(c) has no application in this case because he was working and therefore not "disabled" at the time of his January 8, 2000 injury. I believe this contention is foreclosed by our supreme court's interpretation of the term "disabled" in Mycogen Seeds, 686 N.W.2d at 467 (interpreting "disability" in the context of section 85.36(9)(c) to refer to entitlement to workers' compensation benefits including permanent partial disability benefits, and concluding one is considered to be "drawing compensation" during periods for which benefits are owed by the employer even if they are not actually being received by the claimant). Because Guarino's entitlement to permanent partial disability benefits for the 1999 injury (thirty-five percent permanent partial disability or 175 weeks of permanent partial disability) overlapped chronologically with his entitlement to such benefits for his 2000 injury, the agency correctly concluded apportionment was required in this case. I therefore concur with the majority's decision to the extent that it affirms the agency's determination that section 85.36(9)(c) has application to this case.
This common law rule extant at the time of the agency's decision held that an employer's liability for work-related industrial disability was not apportioned or diminished if the claimant had previously sustained a distinct unscheduled work-related injury resulting in disability. Second Injury Fund v. Nelson, 544 N.W.2d 258, 265 (Iowa 1995). Under the law prevailing at the time of the agency's decision in this case, unless a statute required apportionment of industrial disability, "the employer [was] generally held liable for the entire disability resulting from the combination of [a] prior disability and the [disability arising from a subsequent] injury." Celotex Corp. v. Auten, 541 N.W.2d 252, 254 (Iowa 1995) (citation omitted). Thus, as of January 8, 2000, unless § 85.36(9)(c) required apportionment, an employer could be required to compensate a claimant for a work-related earning capacity loss of seventy percent notwithstanding the claimant had previously been compensated for the loss of thirty-five percent of his earning capacity.
The agency filed its appeal decision on June 24, 2004. The Iowa Legislature subsequently repealed this statute. See 2004 Iowa Acts ch. 1001.
I dissent, however, because I believe the agency's application of section 85.36(9)(c) to the facts in this case was wholly unjustifiable. See Iowa Code § 17A.19(10)(m) (authorizing the court to reverse agency action based on a "wholly unjustifiable application of law to fact that has clearly been vested . . . in the discretion of the agency"). Although section 85.36(9)(c) required the commissioner to apportion the overlapping disability benefits for the 1999 and 2000 injuries, I believe the commissioner erred when he attempted to do so. The statute permitted apportionment of only overlapping permanent disability entitlements. In this case, only the 1999 and 2000 entitlements overlapped and were subject to apportionment. The 1995 entitlement did not overlap and was not properly subject to apportionment. I would reverse because I conclude the commissioner's apportionment analysis resulted in the erroneous apportionment of the 1995 entitlement.
The commissioner's apportionment analysis erroneously attributed twenty-five percent of the disability resulting from the 1999 injury to the 1995 back injury. While it is undisputed that Guarino was found in the 1995 contested case to have suffered a twenty-five percent loss of earning capacity, that loss and the resulting entitlement to disability benefits did not overlap with Guarino's entitlement to disability benefits for the 1999 or the 2000 injuries. In the absence of an overlap, the disability arising from the 1995 injury was not subject to apportionment arising from the 2000 injury. The "fresh start" principle adopted by our supreme court calls into serious question the validity of the commissioner's ex post bifurcation of the 1999 disability award.
The author of a noted workers' compensation treatise has noted that the capacities of a human being cannot be arbitrarily and finally divided and written off by percentages. The fact that a man has once received compensation for 50 percent of total disability does not mean that ever after he is in the eyes of compensation law but half a man, so that he can never again receive a compensation award going beyond the other 50 percent of total. After having received his prior payments, [a worker] may, in future years, be able to resume gainful employment. In the words of the Colorado court, he may have resumed employment as a `working unit.' If so, there is no reason why a disability which would bring anyone else total permanent disability benefits should yield him only half as much.
2 Arthur Larson, The Law of Workmen's Compensation § 59.42(g)(3), at 594-99 (1994) (citation omitted). Our supreme court adopted this "fresh start" reasoning as a basis for the full-responsibility rule. See Floyd v. Quaker Oats, 646 N.W.2d 105, 110 (Iowa 2002) (citing Celotex Corp. v. Auten, 541 N.W.2d 252, 254 (Iowa 1995)). After the appeal decision was filed in this case, our legislature repealed § 85.36(9)(c) and expressed its intent to modify the fresh start and full responsibility rules. That subsequent legislative action has no significance in this case.
Guarino returned to work after the 1995 injury. Given our supreme court's pronouncements on the fresh start principle, we should not assume, as the commissioner's apportionment analysis did, that the 1999 injury caused only a ten percent loss of earning capacity. This is especially true when the agency's final award for the 1999 injury expressly found that injury caused a thirty-five percent disability.
I would reverse and remand this case to the agency for new findings both as to (1) the extent of Guarino's disability caused by the 2000 injury, and (2) the apportionment of the disability caused by the 1999 and 2000 injuries. I would order a new industrial disability determination because I believe the commissioner's finding of forty-five percent disability was inseparably intertwined and driven by the wholly unjustifiable apportionment analysis. I would specifically direct the commissioner to first undertake a new disability analysis for the 2000 injury by applying the well-established industrial disability criteria to the existing record, without reference to section 85.36(9)(c) or principles of apportionment. After finding the extent of Guarino's industrial disability, the commissioner should apportion only the disability arising from the 2000 and 1999 injuries.