Supreme Court Holds That Surgery Itself Is Not Sufficient To Establish Industrial Disability
In Westling v. Hormel Foods Corp., 810 NW2d 247 (Iowa 2012), claimant developed shoulder problems and what was originally disagnosed as a partial rotator cuff tear, which was followed by surgery. The operative report noted significant fraying of the anterior and superior labrum, as well as inflammation along the subscapularis muscle, but no rotator cuff tear was found. Claimant was released with no restrictions, and the surgeon concluded that the surgery did not cause claimant to have a permanent impairment. Claimant subsequently retired.
Dr. Mary Shook performed an IME for claimant, and Dr.Shook attributed pain to arthritis and not overuse. She concluded that claimant's current symptoms are not from repetitive tasks due to work assignments. Dr. Shook concluded there was a 2% impairment in claimant's right shoulder and 3% in the left shoulder, both caused by arthritis. Claimant was found to have no permanent impairment at the commissioner level. On rehearing before the commissioner, claimant argued that the commissioner needed to decide for 85.34(2) purposes, whether the definition of permanent impairment contained in the AMA Guides was synonymous with the judicial definition of functional disability. The commissioner did not find persuasive claimant's argument that the surgery would have resulted in some impairment. The commissioner concluded claimant had failed to demonstrate either permanent physical impairment or a permanent disability caused by the work injury.
The court initially concluded that the interpretation of 85.34(2) was not vested in the commissioner, and thus the commissioner was owed no deference on this point. Claimant indicated to the court that because the surgery had caused permanent derangement of bodily structures, the commissioner could not find that no permanent physical impairment resulted from this injury. The court noted that the AMA Guides were "not conclusive evidence on the extent of permanent impairment." The court also noted that in determining permanent partial disability for unscheduled injuries, "the commissioner must assess whether the injury diminished the injured worker's earning capacity." Although functional disability is a factor in determining industrial disability, it is not conclusive.
Because the commissioner erred in finding there was no work-related physical impairment (there would have been no surgery without the work injury even though a rotator cuff tear was not found), claimant contended that there was not only a physical impairment but industrial disability. The court rejected this argument. First, according to the court, the record did not conclusively establish that the shoulder surgery caused permanent physical impairment. The surgeon, for example, opined that claimant did not suffer permanent physical impairment because of the surgery. Because the Guides are not conclusive evidence as to the definition of permanent impairment, the commissioner did not err in finding on the record that Westling failed to prove a permanent physical impairment. Second, the court found there was no error in finding there was no industrial disability. This was supported by substantial evidence according to the court. The Supreme Court therefore affirms the decision of the commissioner.
As a practical matter, when both the treating physician and IME physician conclude that there is no permanent physical impairment as a result of the work injury, it is going to be a difficult proposition to establish either a permanent impairment or industrial disability. The facts of the case were not such that claimant's position was supported, and the mere fact that there had been a surgery was not enough to salvage claimant's position in light of the fact that his own IME doctor had been unable to relate impairment to the work injury. On the positive side, the court reaffirms that the AMA Guides are only guides, and are not determinative on the issue of impairment or disability.
Dr. Mary Shook performed an IME for claimant, and Dr.Shook attributed pain to arthritis and not overuse. She concluded that claimant's current symptoms are not from repetitive tasks due to work assignments. Dr. Shook concluded there was a 2% impairment in claimant's right shoulder and 3% in the left shoulder, both caused by arthritis. Claimant was found to have no permanent impairment at the commissioner level. On rehearing before the commissioner, claimant argued that the commissioner needed to decide for 85.34(2) purposes, whether the definition of permanent impairment contained in the AMA Guides was synonymous with the judicial definition of functional disability. The commissioner did not find persuasive claimant's argument that the surgery would have resulted in some impairment. The commissioner concluded claimant had failed to demonstrate either permanent physical impairment or a permanent disability caused by the work injury.
The court initially concluded that the interpretation of 85.34(2) was not vested in the commissioner, and thus the commissioner was owed no deference on this point. Claimant indicated to the court that because the surgery had caused permanent derangement of bodily structures, the commissioner could not find that no permanent physical impairment resulted from this injury. The court noted that the AMA Guides were "not conclusive evidence on the extent of permanent impairment." The court also noted that in determining permanent partial disability for unscheduled injuries, "the commissioner must assess whether the injury diminished the injured worker's earning capacity." Although functional disability is a factor in determining industrial disability, it is not conclusive.
Because the commissioner erred in finding there was no work-related physical impairment (there would have been no surgery without the work injury even though a rotator cuff tear was not found), claimant contended that there was not only a physical impairment but industrial disability. The court rejected this argument. First, according to the court, the record did not conclusively establish that the shoulder surgery caused permanent physical impairment. The surgeon, for example, opined that claimant did not suffer permanent physical impairment because of the surgery. Because the Guides are not conclusive evidence as to the definition of permanent impairment, the commissioner did not err in finding on the record that Westling failed to prove a permanent physical impairment. Second, the court found there was no error in finding there was no industrial disability. This was supported by substantial evidence according to the court. The Supreme Court therefore affirms the decision of the commissioner.
As a practical matter, when both the treating physician and IME physician conclude that there is no permanent physical impairment as a result of the work injury, it is going to be a difficult proposition to establish either a permanent impairment or industrial disability. The facts of the case were not such that claimant's position was supported, and the mere fact that there had been a surgery was not enough to salvage claimant's position in light of the fact that his own IME doctor had been unable to relate impairment to the work injury. On the positive side, the court reaffirms that the AMA Guides are only guides, and are not determinative on the issue of impairment or disability.
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