Court of Appeals Reverses PTD Finding in Odd Lot Case Finding Claimant Did Not Attempt to Procure Employment
In GITS Manufacturing Co. v. Frank, No. 13-0665 (Iowa App. Jan. 9, 2014), the Court of Appeals, taking a very aggressive stance on substantial evidence, concluded that the commissioner's finding that claimant was an odd lot employee was not supported by substantial evidence, largely because claimant had not sought other employment following her injury.
Claimant suffered a cumulative lung injury from her work as a welder at GITS. The evidence demonstrated that claimant was limited to sedentary work, and the deputy concluded that there was insufficient evidence to demonstrate that she could complete job retraining and go back to work at her age and with her physical condition. The deputy found that claimant was an odd lot employee, and this finding was affirmed on appeal., and by the district court.
The court noted that the issue before it was whether the decision of the agency was supported by substantial evidence. The court first addressed the odd lot doctrine, and noted that under Guyton, once claimant established a prima facie case of unemployability, the burden of production shifted to the employer to show that some kind of suitable work is "regularly and continuously available to the worker." The employer argued that claimant had not make her prima facie case because she failed to put forth evidence of any effort to seek employment and she did not offer evidence of her inability to be employed.
The court indicated that Guyton found that it was normally incumbent on the injured worker to demonstrate a reasonable effort to seek employment. Claimant had not done so in this case, as she was on social security disability. The court also noted that in Nelson the court had indicated that proof of a job search was not an absolute prerequisite, and further held that the prima facie case need only be such to generate a fact question as to the employee's ability to be employed. Defendants argued that the testimony of Susan McBroom, a vocational rehabilitation specialist, demonstrated that claimant could be employed. The court found that McBroom's testimony, combined with the fact that no doctor had indicated claimant should not apply for sutiable work, and evidence that claimant took care of her goats at home, demonstrated that there was work she could perform. The court also noted that the agency had concluded that claimant did not appear to be motivated to work. The court found that "there was no evidence in the record from which the agency could find Frank could not complete retraining." The court also rejected the agency's findings that working around the home was "quite different than working a full-time schedule as an employee of some business." The court concluded that there was no evidence for this conclusion.
The court did not address cases that indicate that a worker is not required to be bedridden in order to be permanently and totally disabled, instead focusing on whether claimant could be gainfully employed, citing Myers v. F.C.A. Services, Inc., 592 N.W.2d 354, 356 (Iowa 1999). The court found that the only evidence to support claimant's contention that she met her burden was self-contradictory. The court concluded that she had not met her burden to demonstrate that she had no prospect of steady employment. The claim was reversed and remanded to the agency for determination of claimant's industrial disability.
A secondary issue was presented on whether the credit to the employer from a long-term disability payment was correct. Claimant alleged this issue was not preserved for review, and the court agreed, finding that the employer did not challenge the amounts alleged by claimant before the agency.
The moral of this tale appears to be that a claimant must attempt to find work, even if another agency has found that claimant disabled. The decision also indicates that in an odd lot situation, it is a good idea to have a vocational expert testify that claimant is unemployable. In Ms. Frank's case, no vocational expert appears to have issued a report for claimant, although there should have been some vocational testimony in the social security case which found that claimant was disabled. If there was such evidence, it was not cited in the decision of the court. It would not be surprising to see a request for further review on this case, as the court intrudes into the agency's fact-finding role.
NOTE: The Supreme Court granted further review in Gits and reversed the decision in October, 2014.
Claimant suffered a cumulative lung injury from her work as a welder at GITS. The evidence demonstrated that claimant was limited to sedentary work, and the deputy concluded that there was insufficient evidence to demonstrate that she could complete job retraining and go back to work at her age and with her physical condition. The deputy found that claimant was an odd lot employee, and this finding was affirmed on appeal., and by the district court.
The court noted that the issue before it was whether the decision of the agency was supported by substantial evidence. The court first addressed the odd lot doctrine, and noted that under Guyton, once claimant established a prima facie case of unemployability, the burden of production shifted to the employer to show that some kind of suitable work is "regularly and continuously available to the worker." The employer argued that claimant had not make her prima facie case because she failed to put forth evidence of any effort to seek employment and she did not offer evidence of her inability to be employed.
The court indicated that Guyton found that it was normally incumbent on the injured worker to demonstrate a reasonable effort to seek employment. Claimant had not done so in this case, as she was on social security disability. The court also noted that in Nelson the court had indicated that proof of a job search was not an absolute prerequisite, and further held that the prima facie case need only be such to generate a fact question as to the employee's ability to be employed. Defendants argued that the testimony of Susan McBroom, a vocational rehabilitation specialist, demonstrated that claimant could be employed. The court found that McBroom's testimony, combined with the fact that no doctor had indicated claimant should not apply for sutiable work, and evidence that claimant took care of her goats at home, demonstrated that there was work she could perform. The court also noted that the agency had concluded that claimant did not appear to be motivated to work. The court found that "there was no evidence in the record from which the agency could find Frank could not complete retraining." The court also rejected the agency's findings that working around the home was "quite different than working a full-time schedule as an employee of some business." The court concluded that there was no evidence for this conclusion.
The court did not address cases that indicate that a worker is not required to be bedridden in order to be permanently and totally disabled, instead focusing on whether claimant could be gainfully employed, citing Myers v. F.C.A. Services, Inc., 592 N.W.2d 354, 356 (Iowa 1999). The court found that the only evidence to support claimant's contention that she met her burden was self-contradictory. The court concluded that she had not met her burden to demonstrate that she had no prospect of steady employment. The claim was reversed and remanded to the agency for determination of claimant's industrial disability.
A secondary issue was presented on whether the credit to the employer from a long-term disability payment was correct. Claimant alleged this issue was not preserved for review, and the court agreed, finding that the employer did not challenge the amounts alleged by claimant before the agency.
The moral of this tale appears to be that a claimant must attempt to find work, even if another agency has found that claimant disabled. The decision also indicates that in an odd lot situation, it is a good idea to have a vocational expert testify that claimant is unemployable. In Ms. Frank's case, no vocational expert appears to have issued a report for claimant, although there should have been some vocational testimony in the social security case which found that claimant was disabled. If there was such evidence, it was not cited in the decision of the court. It would not be surprising to see a request for further review on this case, as the court intrudes into the agency's fact-finding role.
NOTE: The Supreme Court granted further review in Gits and reversed the decision in October, 2014.
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