Court of Appeals Decides Case Involving English Language Skills, Industrial Disability and Motivation

In Merivic, Inc. v. Gutierrez, No. 12-0240 (Iowa App. Nov. 15, 2012), the Iowa Court of Appeals declined to overturn the commissioner's holding in Lovic v. Construction Products, Inc., No. 5015390 (App. Dec. 27, 2007).  The Lovic decision had concluded that a lack of English language skills was a factor to be determined in considering the extent of industrial disability, and also concluded that the failure of a claimant to learn English was not to be considered in determining the client's motivation to work.  Both Gutierrez and Lovic were handled by Jamie Byrne of Neifert, Byrne & Ozga.

Gutierrez involved a welder who had injuries to his shoulder and arm.  Claimant English language skills were minimal, and there was conflicting testimony presented at hearing over how easy or difficult it was to learn English for persons who were not native English speakers.  Claimant lost his job as a welder as a result of his injuries, and the commissioner determined that that he was permanently and totally disabled.  As a part of  the decision, the agency concluded that claimant's English language skills were one of the factors to be considered in determining whether claimant was permanently and totally disabled, citing Lovic.  The agency also indicated that under Lovic, a claimant was not to be penalized for failing to learn English.

Defendants argued at the agency that Lovic, which had not been appealed beyond the agency level, should be overturned.  The agency rejected this contention, and the district court found that regardless of claimant's English language skills, claimant was permanently and totally disabled.  On appeal, the Court of Appeals noted that defendants' argument was that Lovic was "incorrectly reasoned" and "incorrectly decided."  The court found this was an impermissible collateral attack on an unappealed agency decision, and declined to consider the merits of the Lovic case.  The court noted that "Merivic essentially seeks to turn back the clock to the pre-Lovic era when the commissioner accepted a claimant’s failure to learn English as a basis for reducing the claimant’s award. That ship has sailed."

The court went on to find that the conclusions of the commissioner that the claimant was permanently and totally disabled were supported by substantial evidence, and were not illogical, irrational or wholly unjustifiable."  The court noted that the agency had credited claimant's vocational expert over that of defendants, and found that this reliance was supported by substantial evidence. The commissioner also noted that the English language abilities of claimant were not the salient factor in making a determination of PTD.  Nonetheless, the agency considered this as a factor, and the court noted that consideration of this factor was "entirely appropriate."  The court noted that it was up to the commissioner to balance the industrial disability factors, and that the ultimate decision of the commissioner was supported by substantial evidence.

Gutierrez is an important case in establishing that a claimant's English language skills are a consideration in determining the degree of industrial disability, and that the lack on English language skills does not, per se, mean that a claimant is not motivated.  Although the court declined to address the validity of Lovic, by indicating that Lovic represented the policy of the agency, it cemented that case as the means under which the commissioner will consider language claims in the future.