Supreme Court Denies Further Review in Case Involving English Language Skills and Motivation

On February 22, 2013, the Supreme Court denied further review in Merivic v. Gutierrez, No. 12-0240, a case that had earlier been heard by the Iowa Court of Appeals.  See Merivic v. Gutierrez, No. 12-0240 (Iowa App. Nov. 15, 2012).  In Merivic, the court of appeals concluded that the decision of the commissioner in Lovic v. Construction Products, Inc., No. 5015390 (App. Dec. 27, 2007), was appropriate.  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.  In Merivic, the employer had directly attacked Lovic as being wrongly decided, and urged the court to find that Lovic was not controlling.  The decision of the court of appeals found that the employer's position was an impermissible collateral attack on the Lovic case, and rejected the challenge made by the employer.

The denial of further review in Merivic insures that Lovic remains good law at the commissioner's level, and also implies that the appellate courts do not disagree with commissioner's conclusions in Lovic.  This is important in any case in which a claimant's English language skills are at issue.  In many cases, the employer faults the employee for not learning English, and argues that the lack of language skills should not be considered in determining the extent of industrial disability.  Merivic and Lovic conclude that English language skills can be taken into account, and further conclude that the lack of English language skills should not be seen in a negative light in terms of motivation.  Both Merivic and Lovic are fact specific, but both are supportive of the conclusion that the failure to learn English cannot used negatively against claimants.

Jamie Byrne of Neifert, Byrne & Ozga handled both Lovic and Merivic.