Court of Appeals Affirms PTD Award for Claimant in Make Work Job
Wal-Mart Stores v. Henle, Nos. 13-0366 & 13-0721 (Iowa App. January 9, 2014) involved a claimant who had a serious injury when a sixty pound stack of plastic totes fell 15 feet, striking her head and left shoulder. Following treatment, claimant returned to work at Wal-Mart, working four hour days. She was continued as a full-time employee and received partial disability benefits. She often missed work because of her headaches, and these days were considered as excused absences, "which was an exception to the company's usual attendance policy.
The deputy found claimant permanently and totally disabled and ordered benefits beginning on May 30, 2006, "but for those dates when the employer has provided claimant with accommodated employment." The claim was affirmed on appeal. Wal-Mart filed a petition for judicial review, and claimant moved for entry of judgment under section 86.42. Ultimately, the decision was affirmed and the judgment was entered, with a stay of proceedings being denied.
On appeal the the Court of Appeals, Wal-Mart argued that under Burton v. Hilltop Care Center, 813 N.W.2d 250 (Iowa 2012), the agency's decision interwove the factual findings and conclusions of law to such an extent that judicial review was impossible. The court demurred, finding that "we see no Burton problems in this case." The court concluded that the decision was controlled in large part by the deference the workers' compensation commissioner was accorded in factual matters, noting that "we will only disturb the commissioner's finding of permanent total disability if it is not supported by substantial evidence."
The court noted that the judicial review proceedings and 86.42 resulted in two separate proceedings. On the 86.42 question, the employer argued that the district court improperly awarded judgment because the decision of the commissioner read as though no benefits were owed during any period where claimant had part-time employment. Although claimant argued that error had not been preserved on this issue, the court concluded that the appeal of the benefits awarded was sufficient. On the 86.42 question, the court found that judgment was appropriate because the language of the decision was clear that TPD benefits were owed when claimant was working part time. The court characterized Wal-Mart's position that no benefits were owed as "extreme."
On the merits of the permanent total disability question, the employer argued that on the facts claimant was not PTD, and also argued that because claimant had been earning wages, she could not be considered PTD. The employer urged that by "synthesizing" Murillo v. Black Hawk Foundry, 571 N.W.16 (Iowa 1997), Quaker Oats v Ciha, 552 N.W.2d 143 (Iowa 1996) and Thilges v. Snap-On Tools, 528 N.W.2d 614 (Iowa 1995), there was an obligation for the agency to consider evidence of continued employment as proof that there was some level of earning capacity. The court rejected this argument. They noted that an employer's accommodation may only be factor into an industrial disability award "if the commissioner finds a position equivalent to the newly created job is available in the competitive labor market." Citing Murillo. The court noted that Murillo stated that an accommodation could be considered only to the extent that the newly created job discloses that the worker has a discerned earning capacity. The court declined to reconsider the rulings in Murillo, Thilges and Ciha, since these were Supreme Court opinions.
The court also noted that the employer seemed to argue that only if a claimant were 100% disabled could permanent total disability be found. The court, citing Diederich v. Tri-City Ry. Co. of Iowa, 258 N.W. 899 (Iowa 1935), rejected this contention, noting that industrial disability does not require a state of absolute helplessness. The court concluded that substantial evidence supported the agency's finding of permanent total disability. The court noted that Dr. Pollpeter had limited claimant to four hours of work per day, and that Dr. Hines found a 41% BAW impairment and concluded claimant could not work a 40 hour week or eight hour day. The court found that claimant's accommodated work situation was not generally available in the marketplace. The accommodation, according to the court, did not undermine the disability rating.
Henle seems likely to be a case which will be the subject of further review to the Supreme Court. Although the cases cited in Henle clearly support the decision of the Court of Appeals, the Supreme Court has not definitively indicated that one can be permanently and totally disabled while still working. Henle could be the opportunity for the court to weigh-in definitively on this issue.
An Application for Further Review was filed in Henle and denied on July 16, 2014.
The deputy found claimant permanently and totally disabled and ordered benefits beginning on May 30, 2006, "but for those dates when the employer has provided claimant with accommodated employment." The claim was affirmed on appeal. Wal-Mart filed a petition for judicial review, and claimant moved for entry of judgment under section 86.42. Ultimately, the decision was affirmed and the judgment was entered, with a stay of proceedings being denied.
On appeal the the Court of Appeals, Wal-Mart argued that under Burton v. Hilltop Care Center, 813 N.W.2d 250 (Iowa 2012), the agency's decision interwove the factual findings and conclusions of law to such an extent that judicial review was impossible. The court demurred, finding that "we see no Burton problems in this case." The court concluded that the decision was controlled in large part by the deference the workers' compensation commissioner was accorded in factual matters, noting that "we will only disturb the commissioner's finding of permanent total disability if it is not supported by substantial evidence."
The court noted that the judicial review proceedings and 86.42 resulted in two separate proceedings. On the 86.42 question, the employer argued that the district court improperly awarded judgment because the decision of the commissioner read as though no benefits were owed during any period where claimant had part-time employment. Although claimant argued that error had not been preserved on this issue, the court concluded that the appeal of the benefits awarded was sufficient. On the 86.42 question, the court found that judgment was appropriate because the language of the decision was clear that TPD benefits were owed when claimant was working part time. The court characterized Wal-Mart's position that no benefits were owed as "extreme."
On the merits of the permanent total disability question, the employer argued that on the facts claimant was not PTD, and also argued that because claimant had been earning wages, she could not be considered PTD. The employer urged that by "synthesizing" Murillo v. Black Hawk Foundry, 571 N.W.16 (Iowa 1997), Quaker Oats v Ciha, 552 N.W.2d 143 (Iowa 1996) and Thilges v. Snap-On Tools, 528 N.W.2d 614 (Iowa 1995), there was an obligation for the agency to consider evidence of continued employment as proof that there was some level of earning capacity. The court rejected this argument. They noted that an employer's accommodation may only be factor into an industrial disability award "if the commissioner finds a position equivalent to the newly created job is available in the competitive labor market." Citing Murillo. The court noted that Murillo stated that an accommodation could be considered only to the extent that the newly created job discloses that the worker has a discerned earning capacity. The court declined to reconsider the rulings in Murillo, Thilges and Ciha, since these were Supreme Court opinions.
The court also noted that the employer seemed to argue that only if a claimant were 100% disabled could permanent total disability be found. The court, citing Diederich v. Tri-City Ry. Co. of Iowa, 258 N.W. 899 (Iowa 1935), rejected this contention, noting that industrial disability does not require a state of absolute helplessness. The court concluded that substantial evidence supported the agency's finding of permanent total disability. The court noted that Dr. Pollpeter had limited claimant to four hours of work per day, and that Dr. Hines found a 41% BAW impairment and concluded claimant could not work a 40 hour week or eight hour day. The court found that claimant's accommodated work situation was not generally available in the marketplace. The accommodation, according to the court, did not undermine the disability rating.
Henle seems likely to be a case which will be the subject of further review to the Supreme Court. Although the cases cited in Henle clearly support the decision of the Court of Appeals, the Supreme Court has not definitively indicated that one can be permanently and totally disabled while still working. Henle could be the opportunity for the court to weigh-in definitively on this issue.
An Application for Further Review was filed in Henle and denied on July 16, 2014.
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