Court of Appeals Issues Decision on Full Responsibility, Healing Period

In Waldinger Corporation v. Mettler, No. 0-647 (Iowa App. Nov. 24, 2010), the court addressed issues of apportionment in scheduled member cases, healing period issues, and issues involving the Second Injury Fund.  Of particular interest is the court's approach to healing period, which appears to deny the possibility of intermittent healing periods.

Claimant was in the military and suffered a number of injuries prior to returning to his work as a plumber at Waldinger.  Before starting that employment, claimant was provided a 20% impairment rating from VA for leg injuries, and 10% for right knee injuries.  Considering impairments to his spine, as well as tinnitus, claimant was found to have a 70% total impairment, which entitled him to $1100 per month from the VA.

Claimant was able to perform his work with Waldinger when he began working.  Over time, he developed more problems with his right ankle, for which he had four surgeries.  This injury forced him out of a job as a plumber, and he was ultimately reemployed as a school teacher after he had completed his bachelor's degree.  At hearing, the agency awarded a 15% impairment for the right lower extremity, and did not apportion this with the earlier VA injury to the right leg.  Healing period benefits were denied because claimant had reached MMI on 4/6/05 (although one of the surgeries was conducted after that date).  Claimant was also awarded a 15% industrial award against the Fund, for the right leg injury, and earlier injuries to the arms.  The decision found that the disabilities did not appear to have diminished claimant's earning capacity (although his actual salary as a teacher, on a yearly basis, was much less than his wages as a plumber).

On appeal, the commissioner reversed on the healing period issue, awarding benefits from 9/18/07 to 12/18/07.  The decision was affirmed on all other issues.  The district court found that multiple healing period benefits were possible, and also found that because claimant's earnings as a teacher were less, the level of industrial disability needed to be redetermined.  No apportionment for the right leg injury was allowed.

Apportionment.  The court first addressed the apportionment issue, finding that an employer must take full responsibility for compensating a workplace injury which aggravated a preexisting condition.  The court further found that the employer was not entitled to apportionment unless the preexisting ankle injury produced a discrete and ascertainable degree of disability.  The court found that the employer failed to show that a particular percentage of disability would have resulted from the preexisting injuries.  Furthermore, the court found that under the familiar holding that the employer takes an employee as they find them (citing Bearce v. FMC Corp., 465 N.W.2d 531, 536 (Iowa 1991)), Walding took Mr. Mettler subject to his preexisting injuries.

Healing Period.  Defendants contended on review that under Ellingson v. Fleetguard, Inc., 599 N.W.2d 440, 447 (Iowa 1999), claimant was not entitled to healing period following his fourth surgery.  Defendants argued that since claimant had earlier reached maximum medical improvement, healing period was not appropriate.  The court finds that no evidence was presented to dispute that maximum medical improvement had been reached prior to the fourth surgery, and denied healing period benefits.  In reaching this conclusion, the court did not discuss the apparently contradictory opinion of the Supreme Court in Teel v. McCord394 N.W.2d 405 (Iowa 1995), in which the court concluded that intermittent healing periods were possible.  The court also did not address the factual distinctions between Ellingson and Mr. Mettler's situation, since the claimant in Ellingson did not have surgery following the initial injury, and essentially claimed healing period benefits for days off work following a finding of MMI.  Mettler would appear to stand for the proposition that there is no such thing as an intermittent healing period, which is directly contradictory to the law at the agency level.


Fund Benefits.  The court found that because the agency had considered the actual income to be earned by claimant, substantial evidence supported the agency's factual conclusions.  The court believed that substantial evidence supported the 15% industrial disability finding, and reversed the district court on this issue.


With the exception of the healing period discussion, Mettler does not break any new ground.  The healing period discussion is quite troublesome, however, as it would change years of practice before the agency.  There is nothing in the statute that indicates that a new healing period cannot be started when a claimant is unable to work due to the original work injury, as Mr. Mettler was following his fourth surgery.  Although the achievement of MMI may end an initial healing period, this does not necessarily mean that future healing periods are precluded, and yet this is what the court in Mettler decides.  Claimant further review by the Supreme Court and the court granted further review on February 23, 2011.  The IAJ Core Group has filed an amicus brief in support of the claimant's position in Mettler, and as of March 14, 2011 it is unknown whether the amicus brief will be considered.  

Comments

Popular posts from this blog

Court of Appeals Affirms Denial of Workers' Compensation Benefits; Rules on Credit Issue

2021 Workers' Compensation Appeal Decisions

2024 Workers' Compensation Appeal Decisions