Court of Appeals Concludes Claimant Preserved Error on Industrial Disability Benefits Issue

 Schoenberger v. Zephyr Aluminum Products No. 22-1613 (App. April 12, 2023)

Claimant suffered an injury to his left shoulder, resulting in a rotator cuff repair.  Testing demonstrated tha tclaimant had ulnar neuropathy at the left elbow, which an IME found was a sequela to the original injury.  The deputy found claimant failed to demonstrate an injury that extended into the body as whole and 76 weeks of benefits were awarded due to the shoulder injury.  Claimant appealed, arguing that he had established an industrial disability.  The appeal decision failed to specifically address whether his injury qualified as industrial because it constituted a combined shoiulder and arm injury.  The district court found that error on this issue had not been preserved as claimant had not "previously and explicitly raised the question of a combined shoulder and arm injury or secured a ruling thereon."

On appeal, claimant contended that raising his industrial disability argument before the commissioner was sufficient.  The Court noted that in order to preserve the issue, claimant must raise the issue at the earliest possible opportunity.  The Court also noted, however, that the agency rule at 4.28(7) provides that failing to obtain a ruling from the deputy commissioner " is not fatal so long as the matter was raised."

The Court notes that claimant raised the issue of industrial disability before the deputy. The employer argued that adding a whole new body part for consideration with respect to the nature and extent of the injury was not an alternative theory encompassed in the determination of whether a shoulder injury alone constituted an industrial injury.  The Court of Appeals concluded that the "broad scope" of 4.28(7) supported a contrary conclusion.  The Court noted that the sequela injury to the elbow had been presented by claimant and agreed with claimant's argument that the argument that the two injuries resulted in industrial disability was "additional ammunition for the same argument," not a new argument on appeal.  The Court therefore finds that the issue was presented for review and remands to the agency for determination of the merits.

Note:  The Court of Appeals noted that the commissioner did not find the issue waived, but failed to address the issue altogether.  The Court indicated that "in such circumstances, we encourage claimants to file an application for rehearing pursuant to rule 876-4.24 of the Iowa Administrative Code."  Parties to workers' compensation cases should follow this advice in order to avoid dismissal because of a failure to preserve error.

Judge Greer dissented, finding that since the deputy concluded that claimant suffered only a single injury (to the shoulder), claimant could not be entitled to industrial disability benefits.  She would find that substantial evidence supported the conclusion that claimant had not demonstrated an elbow injury and thus had not demonstrated an entitlement to industrial disability.