Neifert, Byrne & Ozga, P.C.

Welcome to the blog for Neifert, Byrne & Ozga, P.C., devoted to developments in the field of workers' compensation in the State of Iowa. We hope the blog provides helpful information to users, including updates of Iowa Supreme Court and Court of Appeals cases of interest to claimants and workers' compensation practitioners.

Neifert, Byrne & Ozga represents only injured workers in workers' compensation claims in Iowa. This blog is meant to provide accurate and updated information on state of workers' compensation claims in our state. Should you have further questions, please contact us at Neifert, Byrne & Ozga, P.C, 1441 29th Street, Suite 111, West Des Moines, IA 50266. Tel. 888-926-2117 (toll free). Visit us on the web at www.nbolawfirm.com or www.iowa-workers-comp.com.

Saturday, March 3, 2012

Supreme Court Issues Decision On Suitable Work For Truck Drivers

Neal v. Annett Holdings, 814 NW2d 512 (Iowa 2012) represents the first time the Iowa Supreme Court has addressed issues regarding suitable work for truck drivers, who are often required to perform light duty work at a home terminal which may be hundreds or even thousands of miles away from the claimant's home.  The divided court concluded, in a 4-3 decision, that light duty work offered to a claimant who lived 387 miles from the terminal, and had family in his home state, was not suitable work under the circumstances.

The evidence at hearing demonstrated that when claimant was driving, he was able to return home every weekend and occasionally during the week to his wife and three children.  Under the light duty work program, claimant was able to return only once every other weekend.  The arbitration decision found that the light duty work was suitable and that claimant had a 15% industrial disability for his shoulder injury.  On appeal, the commissioner found that claimant had not been offered suitable work because the work was located 387 miles from his residence.  The industrial disability was increased to 60%.  The commissioner held that "being away from the support of your wife and family, especially while recovering from a serious work injury, is not an insignificant matter."

The district court affirmed the industrial disability finding, but concluded that since 85.33(3) did not define suitable work in terms of its location, the commissioner had erred in concluding the work was not suitable.

In determining the suitable work question, the court noted that the interpretation of 85.33(3) had not been delegated to the commissioner, and thus the court did not owe deference to the agency's interpretation of that provision.  The court first noted that the statutory phrase "suitable work consistent with the employee's disability" was not, as the district court found, satisfied if the work offered was consistent with the employee's disability.  The court noted that the definition was twofold - the work must be both suitable and consistent with the employee's disability.  Because suitable work was not defined in the statute, it fell to the court to define this phrase.  The court undertook a survey of the law in other states, including both workers' compensation and unemployment provisions, as well as workers' compensation treatises and the Restatement of Agency.   The ultimate conclusion from this evaluation was that the geographic location of the work offered was a consideration in determining whether the work was suitable ("in short, it is clear that geographic proximity is commonly considered as a relevant factor in workers' compensation statutes."). 

After concluding this survey, the court found that the commissioner had committed no legal error in concluding that the work offered to claimant had not been suitable.  The court noted that before the injury claimant had ordinarily spent each weekend at home with his family and occasionally returned during the week.  To work in Des Moines, claimant would have had to cut his time at home in half.  Furthermore, the court found that there was no condition of employment that required claimant to agree to relocation as a condition of employment.  The court found that substantial evidence supported the commissioner's position.

On the issue of industrial disability, the court affirmed the 60% award on substantial evidence grounds.  The court found that although claimant could still work as a truck driver, there was other work he could not perform, and he could not perform his prior work (at the time of the injury) as a flatbed truck driver.  The court noted that claimant was relatively older (47) making it more difficult for him to move to another job.  The court noted that earning capacity contemplated more than a determination of what an employee can or cannot do - it includes consideration of claimant's actual employability and the extent to which claimant can realistically compete for jobs.  The court also noted that the commissioner routinely engages in determinations of industrial disability and "has a special expertise in the area that is entitled to respect by a reviewing court."

Justice Mansfield, joined by Justices Cady and Waterman, dissented.  The dissent indicates that the majority had invalidated a "seemingly reasonable temporary rehabilitation and light-duty work program."  The dissent insistent that this program was well-designed to serve the needs of both an Iowa employer and its employees.  The dissent says that the majority "takes an unduly formalistic approach" to the suitable work issue.  The dissent finds that not allowing the employer to set up a program such as that devised by TMC "makes it difficult to have a centralized program."  The dissent also indicates that the majority ignored the specific facts of the case, because his work already took him away from home overnight.  The dissent agreed that the phrase "suitable work consistent with the employee's disability" was a two part test.  Although geography could be considered under the minority view, it should not have been a predominant factor in this case, largely because claimant was a trucker.  The dissent concluded that work it was acceptable for an employee to be made to travel temporarily "so long as that work is offered in good faith to meet the needs of the company and the travel is at the employer's expense."  On the issue of industrial disability, the dissent would also have reversed, because there was no substantial evidence to support the conclusion that there was a 60% industrial loss.

Neal would appear to be emblematic of a different world view between the majority and the dissenters.  While the majority interprets the statute in light of its effect on the employee, the dissent is focused on the needs of the employer.  The statement in the dissent that as long as the work program is set up in good faith to "meet the needs of the company" appears to totally ignore the employee's interest in having any life outside of work.   Furthermore, the dissent appears to indicate that the majority held that all such programs are invalid, which does not appear to be what was said in the majority opinion.  The majority clearly held that the work program run by the company was not suitable in the circumstances of the case.  It may be that Neal presages coming battles over the interpretation of the workers' compensation statute.

Supreme Court Holds That Surgery Itself Is Not Sufficient To Establish Industrial Disability

In Westling v. Hormel Foods Corp., 810 NW2d 247 (Iowa 2012), claimant developed shoulder problems and what was originally disagnosed as a partial rotator cuff tear, which was followed by surgery.  The operative report noted significant fraying of the anterior and superior labrum, as well as inflammation along the subscapularis muscle, but no rotator cuff tear was found.  Claimant was released with no restrictions, and the surgeon concluded that the surgery did not cause claimant to have a permanent impairment.  Claimant subsequently retired.

Dr. Mary Shook performed an IME for claimant, and Dr.Shook attributed pain to arthritis and not overuse.  She concluded that claimant's current symptoms are not from repetitive tasks due to work assignments.  Dr. Shook concluded there was a 2% impairment in claimant's right shoulder and 3% in the left shoulder, both caused by arthritis.  Claimant was found to have no permanent impairment at the commissioner level.  On rehearing before the commissioner, claimant argued that the commissioner needed to decide for 85.34(2) purposes, whether the definition of permanent impairment contained in the AMA Guides was synonymous with the judicial definition of functional disability.  The commissioner did not find persuasive claimant's argument that the surgery would have resulted in some impairment.  The commissioner concluded claimant had failed to demonstrate either permanent physical impairment or a permanent disability caused by the work injury.

The court initially concluded that the interpretation of 85.34(2) was not vested in the commissioner, and thus the commissioner was owed no deference on this point.  Claimant indicated to the court that because the surgery had caused permanent derangement of bodily structures, the commissioner could not find that no permanent physical impairment resulted from this injury.  The court noted that the AMA Guides were "not conclusive evidence on the extent of permanent impairment."  The court also noted that in determining permanent partial disability for unscheduled injuries, "the commissioner must assess whether the injury diminished the injured worker's earning capacity."   Although functional disability is a factor in determining industrial disability, it is not conclusive.

Because the commissioner erred in finding there was no work-related physical impairment (there would have been no surgery without the work injury even though a rotator cuff tear was not found), claimant contended that there was not only a physical impairment but industrial disability.  The court rejected this argument.  First, according to the court, the record did not conclusively establish that the shoulder surgery caused permanent physical impairment.  The surgeon, for example, opined that claimant did not suffer permanent physical impairment because of the surgery.  Because the Guides are not conclusive evidence as to the definition of permanent impairment, the commissioner did not err in finding on the record that Westling failed to prove a permanent physical impairment.  Second, the court found there was no error in finding there was no industrial disability.  This was supported by substantial evidence according to the court.  The Supreme Court therefore affirms the decision of the commissioner.

As a practical matter, when both the treating physician and IME physician conclude that there is no permanent physical impairment as a result of the work injury, it is going to be a difficult proposition to establish either a permanent impairment or industrial disability.  The facts of the case were not such that claimant's position was supported, and the mere fact that there had been a surgery was not enough to salvage claimant's position in light of the fact that his own IME doctor had been unable to relate impairment to the work injury.  On the positive side, the court reaffirms that the AMA Guides are only guides, and are not determinative on the issue of impairment or disability.