Court of Appeals Reverses District Court, Reduces Permanent Total Disability Award to 70%
In Kent v. Diamond Shine Management Services, Inc., No. 11-1041 (Iowa App. April 25, 2012), the Court of Appeals reiterated the importance of the substantial evidence standard in judicial review actions. Mr. Kent had suffered injury to his bilateral shoulders, resulting in a 6% BAW rating to one shoulder, and a 4% BAW rating to the other shoulder, according to the IME doctor. Work restrictions were in the 40 pound occasional lifting category. Claimant presented evidence that his reading and math skills were consistent with students in the upper elementary level. Claimant also presented evidence from a vocational expert that he was unable to perform any activity in the labor market. Following the end of the discovery period, claimant moved to add an odd lot claim, which was rejected by the hearing deputy. At the time of hearing, claimant was working, but had suffered a loss of income from $12.00 per hour to $7.50 per hour and was working only part-time. Defendants' vocational expert concluded that claimant could perform work, including work as a cook or bartender, which claimant had done before.
The hearing deputy indicated that neither vocational expert was probative of the issues in the case, and awarded a 40% industrial disability. This was increased on appeal to the commissioner to 70%. The commissioner also refused to consider the matter as an odd lot claim. Finally, the commissioner concluded that payment for the vocational expert was not appropriate as a sanction for defendants' failure to admit certain requests for admission (apparently payment for the VE was not attempted under 876 IAC 4.33(6)).
At the district court level, the court concluded that the decision of the agency was not sufficiently detailed to determine whether the 70% award was appropriate, and remanded to the agency. The agency affirmed its initial ruling. The court also indicated that it was error to refuse to consider the odd lot claim. The agency affirmed the 70% award, and after considering the odd lot claim, rejected that claim, finding that claimant had not made a prima facie showing of odd lot. The case returned to the district court.
In the second district court action, the court found that the agency had not correctly applied the factors relating to industrial disability and concluded that claimant had established permanent total disability, as well as finding that permanent total disability was appropriate under an odd lot analysis.
The Court of Appeals noted that the analysis was whether substantial evidence supported the decision of the agency. The court noted that the commissioner had addressed the relatively small impairment ratings, and the ability of claimant to occasionally lift significant amounts of weight. The court found that the agency's finding that claimant retained some residual ability to compete for employment was supported by substantial evidence. The court also concluded that even under the odd lot doctrine, there was substantial evidence to support the agency's conclusion that claimant had not made a prima facie case of showing odd lot. The court concluded that by relying on defendants' vocational expert, there was substantial evidence to support a finding that claimant had not made his prima facie case. The Court of Appeals also concluded that the district court had stepped outside of its role in making a factual finding that claimant's vocational expert was to be preferred over that of defendants' expert.
On the issue of the costs of the VE, claimant argued that because defendants had denied that the claim was to be considered industrially, VE costs should be awarded. This was rejected by the agency, which concluded that the VE was not in a position to indicate whether the claim was scheduled or unscheduled. The Court of Appeals found that the VE costs were not "reasonable costs incurred" in proving that the action was industrial. The court found that there was no abuse of discretion in denying VE costs as a sanction for failing to admit the existence of an industrial disability.
The hearing deputy indicated that neither vocational expert was probative of the issues in the case, and awarded a 40% industrial disability. This was increased on appeal to the commissioner to 70%. The commissioner also refused to consider the matter as an odd lot claim. Finally, the commissioner concluded that payment for the vocational expert was not appropriate as a sanction for defendants' failure to admit certain requests for admission (apparently payment for the VE was not attempted under 876 IAC 4.33(6)).
At the district court level, the court concluded that the decision of the agency was not sufficiently detailed to determine whether the 70% award was appropriate, and remanded to the agency. The agency affirmed its initial ruling. The court also indicated that it was error to refuse to consider the odd lot claim. The agency affirmed the 70% award, and after considering the odd lot claim, rejected that claim, finding that claimant had not made a prima facie showing of odd lot. The case returned to the district court.
In the second district court action, the court found that the agency had not correctly applied the factors relating to industrial disability and concluded that claimant had established permanent total disability, as well as finding that permanent total disability was appropriate under an odd lot analysis.
The Court of Appeals noted that the analysis was whether substantial evidence supported the decision of the agency. The court noted that the commissioner had addressed the relatively small impairment ratings, and the ability of claimant to occasionally lift significant amounts of weight. The court found that the agency's finding that claimant retained some residual ability to compete for employment was supported by substantial evidence. The court also concluded that even under the odd lot doctrine, there was substantial evidence to support the agency's conclusion that claimant had not made a prima facie case of showing odd lot. The court concluded that by relying on defendants' vocational expert, there was substantial evidence to support a finding that claimant had not made his prima facie case. The Court of Appeals also concluded that the district court had stepped outside of its role in making a factual finding that claimant's vocational expert was to be preferred over that of defendants' expert.
On the issue of the costs of the VE, claimant argued that because defendants had denied that the claim was to be considered industrially, VE costs should be awarded. This was rejected by the agency, which concluded that the VE was not in a position to indicate whether the claim was scheduled or unscheduled. The Court of Appeals found that the VE costs were not "reasonable costs incurred" in proving that the action was industrial. The court found that there was no abuse of discretion in denying VE costs as a sanction for failing to admit the existence of an industrial disability.
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