In Menard v. Jones, No. 12-0027 (Iowa App. Sept. 6, 2012), the court of appeals addressed two issues. The defendants appealed a question of whether claimant had reached maximum medical improvement, and claimant appealed a question relating to part-time. On rate, the court in Swiss Colony v. Deutmeyer had indicated that in part-time cases, there needed to be evidence of what type of work was part-time in the industry in which the claimant was engaged. The court in Jones indicated that the fact that claimant was hired to work on 4 hours a day (and that the employer admitted he was part-time), was not enough to actually establish that he was only performing part time work under the statute. Since there was no evidence in the record to establish what full time employment was in claimant's field, the court concluded that the case had to be remanded on this issue.
On the maximum medical improvement issue, both the treating physician and IME doctor had recommended further treatment to determine whether there was nerve entrapment. On this evidence, the commissioner concluded that claimant had not reached MMI, and accordingly found a running healing period. Menard's appeals this issue, and according to the court, asked the court to reweigh the evidence. The court concludes that under the substantial evidence test, this is not its role The court also indicated that an issue that had not been raised before the commissioner (in this case whether claimant's failure to note a back injury on his application form) could not be raised for the first time on appeal.
Judge Doyle dissented with respect to the rate issue. He found that because Menard's had stipulated that the work was part-time, it was in fact part time, and that there was no need to go back to the agency to determine the amount of hours worked by other claimants in the same industry. He distinguished Swiss Colony by indicating that in that case, there was a real question about what was considered full time work in that industry. Here, there was an admission by the employer that claimant was part-time, was not entitled to benefits because he was part-time, and Judge Doyle believed this made a difference. Judge Doyle would have affirmed the decision of the agency on this portion of the claim.
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