Court of Appeals Finds that Claimant Failed to Preserve Error on Alleged Shoulder/Arm Issues; Affirms Denial of Temporary Benefits

 Archer Daniels Midland v. Williams, No. 22-2075 (Iowa App. Dec. 20, 2023) 

Claimant had an injury to the shoulder which he claimed extended beyond the shoulder to the body as a whole.  During the course of litigation, the Supreme Court decided Deng and Chavez, which addressed the issues concerning the shoulder that applied in this litigation.  At the district court level, Claimant shifted his approach to indicate that he had suffered a shoulder/arm injury, which should have been treated industrially.  Because Deng and Chavez had not been decided by the courts while claimant's case was being litigated, and this was the only issue raised before the commissioner, no decision was reached by the agency on the shoulder/arm issue.

The Court concludes that error was not preserved, as claimant did not pursue the shoulder/arm issue until he reached the district court.  The district court had concluded that claimant preserved the issue because "the parties have always disputed whether Williams' injury qualified as a scheduled-member shoulder injury or a body-as-a-whole disability."  The Court of Appeals rejects this approach, noting that judicial review is limited to "questions considered by the agency." Because the agency had never been presented with this issue, error was not preserved.  The Court finds that the "specifics of Williams' argument are factually different such that neither the agency nor ADM were alerted to it until it was raised on judicial review."  It was claimant's responsibility to raise the issue before the agency and having failed to do so, the issue was waived.

The commissioner also denied claimant's claim for healing period benefits.  The employer had claimant find work within his restrictions, but claimant missed 52 days of work when he was experiencing shoulder pain and calling in sick.  The commissioner found that claimant did not have "license to just call in when his injured body part is particularly sore and then later claim healing period for those dates."  The Court finds there was substantial evidence to support the decision that the work offered to Williams was suitable.  The Court then concludes that the fact that the employer did not put the offer of suitable work in writing under 85.33(3)(b) was not applicable because the employer was  not claiming claimant refused suitable work.  Rather, according to the Court, claimant's "undisputed return to work made any failure to put the offer of work in writing inconsequential."  The Court concludes that "the statute is clear that an employee is entitled to healing period benefits only until the employee returns to work."  Once an employee returns to work the written offer of suitable work is no longer applicable. The Court speicifically rejects claimant's argument that "to find his return to work discontinued his healing period would create unfair results by punishing employees who accept unsuitable work and allow employers to act unscrupulously." The Court concluded it could not read in an exception to the statute to avoid potential undesirable outcomes. No mention is made by the Court of the liberal construction of statutes in workers' compensation cases.