In Norton v. Hy-Vee, No. 16-1299 (Iowa App. Nov. 8, 2017), claimant's back and neck injury resulted in a 25% loss in hours in her work as a pharmacy tech. Despite the injuries, she continued to work and was described as a motivated and valuable employee both before and after the injury. Claimant argued that she was permanently and totally disabled, inasmuch as she would not have been able to work absent the accommodations provided by Hy-Vee. The employer argued that claimant did not have a significant industrial disability because she continued to work. The deputy and commissioner found that claimant was entitled to a 70% industrial disability. The commissioner found that the award of permanent disability was based on claimant's ability to continue as a pharmacy tech and her ability to find new employment should she leave Hy-Vee. The district court affirmed, finding that the agency had correctly interpreted decisions focusing on claimant's ability to earn in the competitive job market.
On appeal, claimant argued that the agency incorrectly made a downward adjustment of industrial disability based on Hy-Vee's accommodations of her work restrictions. The court agreed with claimant that Gallardo did not be interpreted as the Supreme Court's approval of a downward adjustment to industrial disability based on an employer's accommodations of work restrictions. Similarly, Overholser could not be interpreted to support such a downward adjustment. The court indicated that industrial disability was to be based on the injured worker's earning capacity, without regard to accommodation. The court agreed with claimant that an injured worker's performance of accommodated work, without more, cannot be used to reduce a worker's industrial disability rating. But the performance of accommodated work could be considered in assessing industrial disability if the work is transferable to the competitive job market and discloses a discerned earning capacity.
Although the court agreed with claimant as to the state of the law regarding accommodated work, it concludes that the commissioner correctly interpreted that law. The commissioner noted that claimant was a valuable member of the pharmacy team and had developed unique skills. The commissioner also noted that claimant would probably find employment, even with her restrictions, should she leave Hy-Vee. The court also indicates that a review reopening proceeding would be available to claimant in the future if there were a change in her condition or earning capacity in the future. Claimant also points to the fact that her case has been cited by the commissioner for the proposition that a downward departure based on accommodated work is permissible. The court finds that these cases are not before it and does not lead to the conclusion that the commissioner's interpretation was incorrect. The decision of the agency was affirmed.
Judge Tabor dissented, indicating that the caselaw demonstrates that loss of earning capacity should be viewed in terms of the present ability of claimant to earn in the competitive job market without regard to accommodations. Judge Table found that the commissioner had specifically considered claimant's accommodations in making its determination of a 70% industrial award. The accommodation should not have been considered at all, even if her ability to find a job after Hy-Vee was considered.
Given the extended discussion of the issues by both the majority and dissent, and the commissioner's citation of Norton to justify downward reductions based on accommodations, it is quite likely that this case will wind up before the Supreme Court on further review.
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