TORY R. BENNETT, Petitioner-Appellee, vs. THE DEXTER COMPANY, Employer AND EMCASCO INSURANCE COMPANY, Insurance Carrier, Respondents-Appellants.
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IN THE COURT OF APPEALS OF IOWA
No. 6-1087 / 06-1086
Filed April 11, 2007
TORY R. BENNETT,
Petitioner-Appellee,
vs.
THE DEXTER COMPANY, Employer
AND EMCASCO INSURANCE COMPANY,
Insurance Carrier,
Respondents-Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Jefferson County, Daniel P. Wilson,
Judge.
Respondents appeal a district court decision which reversed the ruling of
the workers’ compensation commissioner. REVERSED.
Steven E. Ort of Bell, Ort & Liechty, New London, for appellants.
Janece Valentine of Valentine Law Office, P.C., Fort Dodge, for appellee.
Considered by Miller, P.J., and Baker, J., and Brown, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).
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BROWN, S.J.
I.
Background Facts & Proceedings
On November 23, 1994, Tory Bennett, then age twenty-two, lost his right
arm while employed as a production worker for The Dexter Company. After his
injury, Bennett first worked as a security guard for a short period of time, then
returned to work at Dexter as a forklift operator. In 1997, Bennett was awarded
workers’ compensation benefits based on a sixty-five percent industrial disability
rating.
In January 1999, Dr. J. L. Marsh recommended Bennett leave his job at
Dexter because he needed to twist his body to drive a forklift, resulting in
considerable pain.
Dr. Marsh recommended Bennett engage only in “strictly
sedentary work where he is able to work straight in front of him.” Bennett did not
immediately follow this advice and continued working at Dexter until March 2000.
Bennett then admitted himself to the psychiatric department at the
University of Iowa Hospitals and Clinics. Bennett was diagnosed with a major
depressive disorder, post-traumatic stress disorder, and pain disorder.
Dr.
Janeta Tansey, a physician, and Dr. Carol Parker, a psychologist, recommended
that Bennett not return to work at Dexter due to the risk of recurrence of his
psychiatric symptoms.
Dr. Parker stated Bennett’s emotional problems were
causally related to his 1994 injury. Dr. Parker recommended simple, routine
work for Bennett.
Bennett did not return to work at Dexter.
He worked part-time as a
bartender but could not perform all of the job duties. He also had seasonable
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employment at a turtle farm operated by a friend.
Again, Bennett could not
perform all of the job duties. A vocational counselor recommended that based on
Bennett’s interests and abilities he could obtain employment as a security guard,
forklift driver, or livestock producer.
Bennett sought additional workers’ compensation benefits in reviewreopening proceedings, claiming his physical and mental condition had declined
since the original award.
After an administrative hearing, a deputy workers’
compensation commissioner determined Bennett was “able only to perform
simple work tasks in a sedentary position that does not require turning his body
at any time.”
The deputy concluded Bennett should be considered totally
disabled under the odd-lot doctrine, and awarded benefits accordingly.
The workers’ compensation commissioner determined Bennett was not an
odd-lot employee, stating “Tory did not introduce evidence that makes a prima
facie showing of permanent total disability by a bona fide effort to find work or
otherwise.”
The commissioner concluded Bennett was entitled to increased
benefits, however, and determined he had a seventy-five percent industrial
disability.
Bennett filed a petition for judicial review. The district court determined
the commissioner had used the wrong standard in determining whether Bennett
was an odd-lot employee. In Guyton v. Irving Jensen Co., 373 N.W.2d 101, 106
(Iowa 1985), the supreme court had stated that in order to come within the oddlot doctrine an employee should demonstrate a reasonable effort to secure
employment. The court later amended this standard in Second Injury Fund v.
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Nelson, 544 N.W.2d 258, 267 (Iowa 1995), by stating that proof of a search for
employment was “not an absolute prerequisite if the employee introduces other
substantial evidence that he has no reasonable prospect of steady employment.”
(Emphasis in original). Important factors to consider in determining whether an
employee comes within the odd-lot doctrine are physical impairment, intelligence,
education, training, ability to be retrained, and age. Nelson, 544 N.W.2d at 268.
The district court concluded the commissioner had misstated the
applicable standard in odd-lot cases by using the Guyton “job search” standard
only, rather than analyzing the facts under the evolved analysis in Nelson. The
court then applied the facts of the case under the Nelson standard and
determined Bennett was an odd-lot employee.
The court reversed the
commissioner and reinstated the decision of the deputy.
The case next came before the Iowa Court of Appeals. We agreed with
the district court that the commissioner had used the wrong standard to
determine whether Bennett was an odd-lot employee, stating:
The commissioner clearly determined Bennett did not come within
the odd-lot doctrine because he had not made a bona fide effort to
find work. Furthermore, there is no indication the commissioner
considered any other relevant factors, such as Bennett’s education
or ability to be retrained, prior to rejecting Bennett’s odd-lot theory.
Bennett v. Dexter Co., No. 03-1684 (Iowa Ct. App. Aug. 26, 2004).
We
concluded, however, that the appropriate remedy was to remand the case to the
commissioner for application of the correct standard to determine whether
Bennett came within the odd-lot doctrine. Id.
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On remand, the commissioner stated he believed the court of appeals had
misinterpreted his original decision. The commissioner went on to find:
Tory did not make a bona fide effort to obtain permanent
employment that is consistent with his abilities. That is not the end
of the analysis, however. Tory failed [to] carry his burden to make
a prima facie showing of total disability because he did not
introduce evidence showing that he is incapable of obtaining and
performing steady work in any well-known segment of the
competitive employment market. None of the other possible
methods were in evidence such as an expert opinion from a
vocational consultant, an assessment from a physician or through
any other lay or expert evidence.
. . . [Bennett] graduated from high school and performed
acceptably. . . . Tory was found to have average intellectual skills
and the records do not indicate that he was found to be incapable
of competitive employment. A person with average intellectual
skills is generally considered to have capacity for learning and
retraining if reasonable effort is put forth. Tory has not put forth that
reasonable effort. Nothing explains why he could not work as a
security guard as he did for a time after losing his arm. Tory’s
insistence upon outdoor work is a self-imposed barrier to retraining
and to obtaining steady work that is consistent with his disability. It
was found that he had not made a bona fide effort to find
permanent, full-time work. Tory hunts and fishes but he works
when he needs to or wants to. Tory sustained a very serious injury
and disability. However, others with a similar disability are
employed and nothing in the record establishes that Tory is
incapable of being employed. Despite Tory’s lack of a serious
effort to find work that is permanent and consistent with the upper
limits of his abilities, he appears to have obtained work whenever
he made an effort to do so.
The commissioner again concluded Bennett did not come within the odd-lot
doctrine.
Bennett again filed a petition for judicial review. The district court found
the commissioner continued “to cast Tory’s failure to put forth a reasonable effort
to obtain employment (and retraining) as the determinative factor in this case.”
The court concluded the commissioner still had failed to correctly apply the law to
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the facts of the case. The court noted that when the commissioner commits an
error in applying the law to the facts, the court should remand for a new decision
unless the decision can be made as a matter of law. See Meyer v. IBP, Inc., 710
N.W.2d 213, 219-20 n.1 (Iowa 2006). The court then determined, as a matter of
law, that Bennett came within the odd-lot doctrine.
Dexter and its insurance carrier appeal the decision of the district court.
II.
Standard of Review
Our review is governed by the Administrative Procedure Act. Iowa Code
ch. 17A (2001); Acuity Ins. v. Foreman, 684 N.W.2d 212, 216 (Iowa 2004). We
review the district court’s decision by applying the standards of section 17A.19 to
the agency action to determine if our conclusions are the same as those reached
by the district court. University of Iowa Hosps. & Clinics v. Waters, 674 N.W.2d
92, 95 (Iowa 2004).
III.
Legal Error
The employer claims the district court erred in finding the commissioner
continued to use the wrong legal standard on remand. The case was initially
remanded to the commissioner because he had not used the analysis in Nelson,
544 N.W.2d at 268, to determine whether Bennett had made a prima facie
showing he came within the odd-lot doctrine.
On judicial review after the
commissioner’s remand decision, the district court found that although the
commissioner had cited to Nelson, he had not engaged in a genuine Nelson
analysis, and the court concluded the commissioner had not properly applied the
law in this case.
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Under the odd-lot doctrine, an employee is considered totally disabled if
the only services the worker can perform are “so limited in quality, dependability,
or quantity that a reasonably stable market for them does not exist.” Guyton, 373
N.W.2d at 105. An employee has the burden of production of evidence to make
a prima facie case showing the employee is not employable in the competitive
labor market.
Nelson, 554 N.W.2d at 267.
The employee must produce
substantial evidence he or she has no reasonable prospect of steady
employment.
Id.
Important factors to consider are the claimant’s physical
impairment, intelligence, education, training, ability to be retrained, and age. Id.
at 268.
If an employee produces substantial evidence deemed sufficient to create
a prima facie case the employee comes within the odd-lot doctrine, the burden
then shifts to the employer to produce evidence there is suitable employment for
the employee. Guyton, 373 N.W.2d at 106. The ultimate burden of persuasion,
however, remains with the employee. Michael Eberhart Constr. v. Curtin, 674
N.W.2d 123, 126 (Iowa 2004).
Our
review
of
the
commissioner’s
remand
decision
shows
commissioner properly applied the law regarding the odd-lot doctrine.
the
The
commissioner cited and discussed several factors which are relevant to an
analysis under Nelson, for example, Bennett’s physical impairment, his
intelligence, education, training, and ability to be retrained, as well as the
absence of expert testimony supporting Bennett’s position.
See Nelson, 544
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N.W.2d at 268. We conclude the district court erred in ruling the commissioner
continued to apply the wrong legal standard in this case.
IV.
Matter of Law
The employer contends the district court erred in finding, as a matter of
law, that Bennett came within the odd-lot doctrine. If the commissioner “has
rendered a finding that the claimant’s evidence is insufficient to support the claim
under applicable law, that negative finding may only be overturned if the contrary
appears as a matter of law.” Asmus v. Waterloo Community School Dist., 722
N.W.2d 653, 657 (Iowa 2006). A finding may be made as a matter of law if the
evidence is uncontroverted and reasonable minds could not draw different
inferences from the evidence. Bearce v. FMC Corp., 465 N.W.2d 531, 534 (Iowa
1991); Armstrong v. State of Iowa Bldgs. & Grounds, 382 N.W.2d 161, 165 (Iowa
1986).
Here, the commissioner determined Bennett had not presented a prima
facie case that he came within the odd-lot doctrine. As the district court noted,
that finding may be overturned only if the contrary appeared as a matter of law.
See Asmus, 722 N.W.2d at 657.
We determine the district court improperly
found Bennett came within the odd-lot doctrine as a matter of law. The evidence
was highly controverted on this issue, and, for the reasons we discuss in the
following division, reasonable minds could draw different inferences from the
evidence. We are unable to find that, as a matter of law, Bennett was incapable
of obtaining employment in any well-known branch of the labor market. See
Guyton, 373 N.W.2d at 105.
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V.
Substantial Evidence
We turn to the question of whether there is substantial evidence in the
record to support the commissioner’s conclusion Bennett did not present a prima
facie case to show he came within the odd-lot doctrine. We are bound by the
commissioner’s factual findings if they are supported by substantial evidence in
the record as a whole. Meyer, 710 N.W.2 at 218. Evidence is substantial when
a reasonable person could accept it as adequate to reach the same finding.
Asmus, 722 N.W.2d at 657. The question is not whether we agree with the
commissioner’s findings, but whether there is substantial evidence in the record
to support the findings made by the commissioner. Meyer, 710 N.W.2d at 218.
“The fact that an agency could draw two inconsistent conclusions from the
evidence presented to it does not mean that one of those conclusions is
unsupported by substantial evidence.” Armstrong Tire & Rubber Co. v. Kubli,
312 N.W.2d 60, 63 (Iowa Ct. App. 1981). We are instructed to liberally and
broadly construe the findings of the commissioner, as the commissioner, not the
appellate court, is charged with weighing the evidence.
Finch v. Schneider
Specialized Carriers, Inc., 700 N.W.2d 328, 330-331 (Iowa 2005)
In Nelson, the employee presented evidence from medical and vocational
experts that he could not work in the competitive job market.
Nelson, 544
N.W.2d at 268. As the commissioner noted, Bennett did not present “expert
opinion from a vocational consultant, an assessment from a physician or through
any other lay or expert evidence,” giving such an opinion. Bennett had medical
restrictions, but there was no medical evidence he was incapable of working.
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Also, a vocational assessment recommended employment as a security guard,
forklift driver, or livestock farmer, as types of employment within Bennett’s
interests and abilities. 1
Bennett testified at the administrative hearing he did not believe he would
have any problem working as a security guard. He also stated he would be able
to work as a clerk at a convenience store. He testified he had not continued to
participate in vocational rehabilitation because he did not like the jobs they
wanted him to do. Bennett stated he would prefer working outside and that he
rejected some employment because it was not outside work.
Based on the
evidence in the record, there is substantial evidence to support the
commissioner’s finding that Bennett had failed to present a prima facie case that
he was incapable of finding work in any established branch of the labor market.
We reverse the decision of the district court and reinstate the decision of
the workers’ compensation commissioner.
REVERSED.
1
It is unclear whether the author of this recommendation was aware there was a medical
recommendation against employment as a forklift operator.
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