In McCarthy v. Jeld-Wen, Inc., No. 13-0636 (Iowa App. Dec. 18, 2013), the Court of Appeals affirmed the commissioner's findings that claimant was not permanently and totally disabled due to a respiratory injury and also affirmed the decision that claimant's tinnitus did not arise out of his employment. Claimant was awarded an 80% industrial disability by the commissioner and was also awarded healing period benefits. The court affirmed in the face of claimant's appeal and defendants' cross-appeal.
Claimant was exposed to isocyanates at work, and although defendants admitted this fact, they claimed he was not entitled to healing period or permanency benefits. Defendants denied claimant's tinnitus.
On the tinnitus question, the court concludes that substantial evidence supported the commissioner's finding without discussion, citing Rule of Court 21.26(1)(a), (b), (d) and (e). On the question of healing period, defendants question whether claimant was capable of performing substantially similar employment which would have ended the temporary period. The commissioner had concluded that claimant was not capable of performing substantially similar employment, finding that he could no longer perform his job at Jeld-Wen given his chemical exposures. Claimant's testimony and the testimony of two doctors was that claimant had continued breathing problems even without chemical exposures. Dr. Hartley testified that claimant could go back to any job that did not have isocyanate exposures. The district court affirmed the award of healing period benefits, and the court of appeals did the same, on substantial evidence grounds. The court also noted that when claimant was laid off, he sought out work, and there was no evidence he refused to perform substantially similar work.
On claimant's appeal, the court found, with limited comment, that the decision that claimant had an 80% industrial disability was supported by substantial evidence. The court cited Rule 21.26.
Judge Vogel dissented on the substantial evidence question concerning temporary benefits. She did not find substantial evidence that claimant was unable to return to his work due to his injury. She stated that the record was devoid of a medical opinion declaring claimant could not work. She further indicated that "without a definitive expert report indicating McCarthy could not work as of July 31, 2009" the agency erred in commencing healing period benefits on that date. The judge indicated that the statutory language of section 85.34, which indicates a healing period is paid "beginning on the first day of disability after the injury" requires such a definitive expert report, although there are not cases explicitly saying as much.