OAKVIEW, INC. and IOWA LONG TERM CARE RISK MANAGEMENT ASSOCIATION , P etitioners - Appell ants , vs. ELIZABETH FERCH , Responde nt - Appell ee .
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IN THE COURT OF APPEALS OF IOWA
No. 8-403 / 06-1924
Filed October 29, 2008
OAKVIEW, INC. and IOWA LONG TERM
CARE RISK MANAGEMENT ASSOCIATION,
Petitioners-Appellants,
vs.
ELIZABETH FERCH,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Carla T. Schemmel,
Judge.
In this consolidated appeal, employer and its insurer appeal from the
district court‟s (1) denial of a stay of judgment pending appeal and (2) ruling on
judicial review affirming the workers‟ compensation commissioner‟s award of
permanent disability benefits and penalties.
AFFIRMED IN PART AND
REVERSED IN PART.
Michael L. Mock and Lori A. Brandau of Bradshaw, Fowler, Proctor &
Fairgrave, P.C., Des Moines, for appellants.
Corey J. L. Walker of Walker & Billingsley, Newton, for appellee.
Heard by Huitink, P.J., and Vaitheswaran and Potterfield, JJ.
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HUITINK, P.J.
Oakview, Inc. and its insurer, Iowa Long Term Care Risk Management
Association, (collectively Oakview) appeal the district court‟s judicial review ruling
affirming the workers‟ compensation commissioner‟s award of permanent partial
disability and penalty benefits to Elizabeth Ferch. Oakview argues that, as a
matter of law, an injured worker cannot prove entitlement to industrial disability
benefits under the circumstances presented. Oakview also contends that, as a
matter of law, it was fairly debatable whether Ferch sustained any industrial
disability related to her June 2001 neck injury and the penalty imposed was
therefore improper. Oakview argues that substantial evidence does not support
the finding of a causal connection between Ferch‟s November 2003 back injury
and a permanent disability. Finally, Oakview contends Iowa Code § 85.36(9)(c)
(2003) (apportionment of benefits)—not the full responsibility rule—governs
where two compensable injuries with the same employer result in overlapping
periods of disability.
In a separate appeal, Oakview contends the district court erred in refusing
to stay enforcement of the agency‟s award of workers‟ compensation benefits.
Oakview further argues that statutory interest pursuant to Iowa Code
section 85.30 does not apply to awards of penalty benefits under section 86.13.
The appeals were consolidated by order of the supreme court. We affirm
the district court‟s denial of a stay. We affirm the commissioner‟s finding of
industrial disability related to the 2001 neck injury and its method of apportioning
overlapping permanent partial disability benefits.
penalty benefits.
We reverse the award of
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I.
Background Facts and Proceedings
Elizabeth Ferch was born in 1957. She attended high school through the
tenth grade.
She did not graduate and does not have a GED.
She has,
however, earned certifications to be a nurse‟s aid (CNA) in 1978, a medication
aid (CMA) in the late 1980s, and a rehabilitation aid (CRA) in 2000. She has
worked as an assembler in a factory, and for Oakview as a CNA, a CMA, and as
a supervisor in housekeeping and laundry.
She received wages for these
various positions ranging from $7.40 to $12 per hour.
Ferch began working for Oakview in February 1998 as a nurse‟s aid and a
medications aid. Requirements for those jobs included being able to work with ill,
disabled, elderly, and emotionally upset/hostile people within Oakview. She was
required to be able to lift seventy-five pounds, and to push, pull, and move
equipment and supplies throughout the day.
When Ferch successfully bid for the position of housekeeping supervisor
in 1999, her job requirements included that she be able to lift fifty pounds and
push, pull, and move equipment and supplies throughout the day. Her beginning
salary in this supervisory position was $8.40 per hour.
Her performance
evaluation covering the period from January 1, 2000, through January 1, 2001,
noted she did an “excellent job.”
June 4, 2001 Neck Injury. On June 4, 2001, Ferch sustained an injury to
her neck.
Conservative treatment failed to resolve the complaints she was
having in her right arm, shoulder, and neck. She underwent several diagnostic
tests, including an EMG, an MRI, and a cervical myelogram.
The cervical
myelogram revealed a large lateral herniated disc at the C5-6 level, diffuse disc
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herniation at the C6-7 level, and minor degenerative changes at the C4-5 level.
On December 3, 2001, Ferch underwent surgery for her neck injury.
Dr. K. Douglas Green, a board eligible neurosurgeon, performed the surgery
consisting of a C5-6 and C6-7 anterior cervical discectomy, osteophytectomy,
fusion, and fixation with iliac crest bone grafting. He provided follow-up care. In
his final postoperative follow-up on February 20, 2002, he indicated the x-rays of
the cervical spine found the fixation devices were in good position and that Ferch
was doing well and was released to return to work without restrictions. Dr. Green
noted also that Ferch was having trouble swallowing and referred her to an ENT
physician.
On February 25, 2002, the ENT physician noted “mild sensory
innervations of pharynx associated with [cervical spine fusion] surgery.”
On December 20, 2001, as a result of this neck injury, Oakview issued
Ferch a check paying temporary workers‟ compensation weekly benefits for the
period beginning December 3, 2001, through February 20, 2002.
Ferch returned to her job at Oakview as a housekeeping supervisor
without restrictions. She also helped doing CNA work when necessary. She
testified that after she returned to work she could not tilt her head back to see
above her head, she had difficulty writing, and overhead work caused her pain.
On April 2, 2002, Ferch received a letter stating that because she had been
released to return to work without restrictions, she would not be receiving further
weekly benefits.
Oakview did not seek an impairment rating for Ferch.
permanent partial disability benefits were paid for the neck injury.
No
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On May 16 and September 18, 2003, Ferch missed work because of back
pain.
November 9, 2003 Back Injury. On November 9, 2003, while working at
Oakview, Ferch experienced a sharp pain when she squatted down to fill a shelf
with linen. She sought medical treatment on November 13 and 18 for back pain
which radiated down her left leg.
On November 20, 2003, Ferch saw
Dr. D.M. Cooper, who ordered a MRI. The MRI showed mild disc bulges at L4-5
and L5-S1 levels. He gave Ferch an epidural injection, placed her on light duty,
and told her to see a neurologist if she did not improve. She was released to
return to work with restrictions on December 4, 2003.
On December 10, 2003, Ferch was paid temporary weekly benefits for the
period of November 18 through December 3, 2003.
The epidural injection did not provide relief, and Ferch went to Dr. Bradley
Lister, an orthopedic surgeon, on December 19, 2003. Dr. Lister‟s report states
in part:
1. Low back pain status post work activities of October and
November 2003.
2. Lumbosacral spine strain and muscle pain status post the work
injuries of October and November 2003.
3. Lumboscral spine degenerative disc disease with disc bulges of
L4-L5 and L5-S1, but with no central canal stenosis and no
significant neuroforaminal compromise per the MRI of
November 24, 2003.
4. Status post a caudal epidural injection by Dr. Cooper on
December 1, 2003 without significant relief.
....
Today, I had a detailed discussion with Ms. Ferch about her back,
about the MRI, about the anatomy and the pain, discomfort and
symptoms. These were then correlated. I again went through the
MRI report, and this shows only the disc bulges without significant
herniations of the disc and without significant nerve impingement.
However, with inflammatory response and with the muscle spasms,
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the pain could be identifiable. The patient also has been having a
slow return to functional activities.
We discussed different
treatment options.
Dr. Lister then recommended steroid treatment; cautioned Ferch about heavy
lifting and strenuous work; told her to be careful about lifting, twisting, and
turning; and continued the light duty restrictions.
On January 6, 2004, Ferch was examined by Dr. Lynn Nelson, an
orthopedic surgeon, who noted her continued reports of pain.
Nelson
recommended a left L4 nerve root injection and a lifting restriction of ten pounds
and no repetitive bending or twisting. Dr. Christian Ledet administered the nerve
root injection that day.
On January 22, 2004, Ferch reported to Dr. Nelson that the injection had
not provided her relief. Dr. Nelson recommended a longer waiting period and
released her to work with a thirty-pound lifting restriction.
From February through April 2004 Ferch continued to report pain and saw
Dr. Steve Scurr, Dr. Lister, and Dr. Nelson. She continued to be on a thirtypound weight restriction.
On May 4, 2004, Ferch‟s attorney wrote to Oakview‟s insurer requesting a
letter to Dr. Green for an impairment rating for the 2001 cervical fusion and noted
that “[u]pon receipt of the impairment rating, all accrued benefits should be paid
in a lump sum.”
With respect to the November 2003 injury, an electromyography study
was done on May 19, 2004, showing no clear evidence of electrophysiological
evidence for a significant lumbrosacral radiculopathy or entrapment neuropathy
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in the left lower extremity. Dr. Scurr saw Ferch on May 20, 2004, and wrote in
his office note that he did not think there was anything more he could offer her.
Ferch submitted a letter to Oakview, dated May 20, 2004, in which she
resigned her position as housekeeping and laundry supervisor effective June 24,
2004. She stated that she was unable to perform her duties “due to the injury of
my back and hip.”
She noted her willingness to work as a “call in” for all
departments “if able.” Ferch did continue to work for Oakview on an as-needed
basis in various capacities. She was paid $8 an hour as a dietary aid and $10.95
an hour as a medicine aid. She also provided four to twenty-five hours per week
unpaid services to her husband‟s business doing billing and computer work.
On May 27, 2004, Ferch‟s attorney wrote a letter to Dr. Green requesting
that the doctor offer an opinion as to whether Ferch sustained a permanent
functional impairment for her cervical injury and surgery, and the extent of
impairment. In a letter dated June 23, 2004, Dr. Green wrote that using the AMA
Guides, Fifth Edition, Ferch had a twenty-five to twenty-eight percent impairment
of the whole person due to the cervical fusion and associated loss of motion at
the C5-6 through C6-7 levels.
A subsequent request to Oakview‟s insurer for permanent partial disability
benefits was rejected. Oakview claimed it was not liable for permanent partial
disability benefits since Ferch returned to work without restrictions after her neck
injury.
On August 4, 2004, Ferch was seen by Dr. John Kuhnlein for an
independent medical examination. Kuhnlein‟s report of August 18, 2004, rated
Ferch‟s impairment at twenty-eight percent to the whole person due to her neck
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surgery and difficulty swallowing. He recommended work restrictions relating
only to the cervical injury of lifting, pushing, pulling, and various weight
restrictions—all under fifty pounds.
On August 10, 2004, Ferch was seen by Dr. Donna Bahls for low back
and left leg pains. Bahls is board certified in physical medicine and rehabilitation.
Bahls assessment was “post lumbrosacral strain November 9, 2003, with low
back and left leg pain” and degenerative disc disease with potential left L3 and
L4 nerve root irritation. Bahls prescribed medication and imposed restrictions of
lifting more than thirty pounds. Bahls further noted that Ferch was to “[a]void
repetitive twisting, bending, and lifting.” These restrictions were continued on
September 7, 2004, at a follow-up visit.
On October 5, 2004, Bahls‟s office notes state that Ferch had achieved
maximum medical improvement in relationship to her symptoms from the
November 9, 2003 injury. Bahls concluded the previous work restrictions were
permanent and that Ferch was assigned a whole person impairment rating of five
percent.
By letter to Ferch‟s attorney dated January 11, 2005, Oakview‟s attorney
asserted that Bahls‟s opinion “raises an issue as to the causal relationship
between the November 2003 back strain and the recommended restrictions.”
Oakview‟s attorney reasserted Oakview‟s position “that in the absence of
permanent restrictions attributable to a work place injury, an employee may be
deemed to have sustained no industrial disability, despite the existence of a
functional impairment rating.”
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On January 14, 2005, the workers‟ compensation insurer paid Ferch
permanent partial disability benefits related to her back injury for the period
December 4, 2003, to May 28, 2004.
On January 26, 2005, Bahls signed a document which stated that Ferch‟s
low back pain and left leg symptoms were caused by the November 9, 2003
incident; that Ferch had a five percent whole body impairment because of her low
back injury and that Ferch‟s work injury was a material and substantial factor in
placing restrictions on her; that the restrictions were placed in part because of
her work injury and in part because of underlying degenerative spine disease;
and that Ferch had permanent restrictions of no lifting more than thirty pounds
and avoiding repetitive twisting, bending, and lifting.
On January 31, “in response to our recent telephone conference,”
Dr. Nelson wrote a letter to Oakview‟s attorney.
That letter held Nelson‟s
opinions that “[n]o permanent functional impairment is indicated for the
November 9, 2003 back strain”; the “thirty pound lifting restriction is reasonable
to lessen the risk of re-injury to Ms. Ferch‟s lumbar spine”; and no permanent
restrictions should be attributed to the November 9, 2003 back strain. Ferch‟s
requests for additional permanent partial disability benefits were rejected.
Correspondence between the parties‟ attorneys was substantial.
Agency Proceedings. Ferch filed a petition for workers‟ compensation
benefits on May 19, 2004. A hearing was held before a deputy commissioner.
Ferch testified that upon returning to work following her cervical fusion surgery
she had increased neck and shoulder pain with overhead work and so she
avoided that type of work. She had difficulty writing and had to ask for help doing
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work-related tasks. Ferch testified that following her “resignation” in June 2004,
she continued to work for Oakview on an as-needed basis. She stated that she
was able to do the CMA job without assistance, but needed some assistance to
the CNA job because of her back. She also worked as a dietary aid. She stated
she provided unpaid assistance to her husband‟s business. She testified that her
current symptoms from her back injury included lower back pain, left upper hip
pain, and numbness in the upper left hip and that she continued to take Flexeril,
Celebrex, and Trazadone as prescribed by Dr. Bahls.
imposed by Bahls continued in effect.
The work restrictions
She further testified she had been
occasionally caring for her mother who was undergoing cancer treatment in
Nebraska.
The deputy commissioner submitted an arbitration decision in which she
found: (1) Ferch‟s stipulated injury to her neck on June 4, 2001, caused a
permanent disability; (2) “although . . . a close question,” Ferch‟s stipulated injury
to her lower back on November 9, 2003 caused permanent disability of the lower
back; (3) Ferch has industrial disability related to the neck injury of twenty
percent, which entitled her to 100 weeks of permanent partial disability benefits
at a stipulated rate of $253.84 per week; (4) Ferch has an industrial disability of
thirty percent as a result of her successive work related injuries, which entitled
her to 150 weeks of permanent partial disability benefits at a stipulated rate of
$284.45; and (5) there was an “overlap” of 6.857 weeks in the permanent partial
disability periods and for that overlap period Oakview was to pay Ferch at the
higher rate.
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The deputy next considered Ferch‟s claim for penalty benefits for
Oakview‟s refusal to pay any permanent partial disability benefits related to the
2001 neck injury. The deputy wrote:
Defendants offer no direct evidence other than explanation from
their attorney why the benefits were not paid for the neck injury.
Claimant had a two level cervical fusion and an approximate twomonth healing period. Every doctor that was asked, Dr. Green and
Dr. Kuhnlein, opined that claimant had a functional impairment
rating of 25-28 percent. Despite claimant‟s surgery and the ratings
from these doctors in 2004, defendants paid no permanent partial
disability benefits for the neck injury. Given the facts that claim had
a two level fusion and every doctor thought claimant had a cervical
functional loss, defendants‟ reliance on the fact that claimant had
no permanent disability because she returned to work with no
restrictions is not reasonable.
Defendants have failed to
demonstrate a reasonable basis for failure to pay permanent partial
disability benefits. The delay (three years) in failure to pay … is
significant. . . . Claimant is entitled to a 50 percent penalty for
failure to pay any permanent partial disability benefits for the June
4, 2001 neck injury.
The deputy found, however, that Ferch‟s claim for additional permanent
partial disability benefits with regard to the November 2003 injury was fairly
debatable and no penalty would be awarded.
On inter-agency appeal, the commissioner affirmed the deputy‟s decision
with “additional analysis.” With respect to the penalty award, the commissioner
noted that “[i]n all but the rarest of industrial disability cases, the impairment
rating is the minimum level of compensation owed to a claimant by virtue that the
impairment rating signifies the extent of the claimant‟s loss of use of the whole
body.”
The commissioner concluded that by refusing to investigate whether
Ferch had sustained any level of permanent functional impairment, Oakview
could not reasonably determine Ferch had not sustained a loss of her earning
capacity. He concluded:
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it is not possible to adjust a workers‟ compensation claim in a
reasonable manner without asking the treating physician or other
well informed evaluating physician whether a claimant has
sustained some level of permanent impairment or disability as a
result of an injury and if so, how much, and what activity
restrictions are necessary as a result of the injury.
The commissioner found that reliance upon a physician‟s assistant‟s return to
work without restrictions was unreasonable. In light of the cervical fusion and a
two-month healing period and the functional impairment ratings of Drs. Green
and Kuhnlein, the commissioner concluded the failure to pay permanent partial
disability benefits for the neck injury warranted the penalty imposed.
District Court Proceedings.
Oakview sought judicial review of the
commissioner‟s decision in the district court. On March 9, 2007, the district court
affirmed in all respects. The district court held there was substantial evidence to
support the award of permanent partial disability benefits for the June 2001 neck
injury.
The district court further ruled the commissioner properly ruled “the
insurer did not have a reasonable basis for denial of benefits in this case, but
rather took unwarranted actions” to delay or avoid payment.
The court also
affirmed the award of permanent benefits related to Ferch‟s November 2003
injury. The district court finally ruled that the commissioner had correctly applied
the rules related to successive work-related injuries. Oakview appeals from this
ruling on judicial review.
During the pendency of the judicial review action and pursuant to Iowa
Code section 86.42, Ferch applied for judgment on the workers‟ compensation
commissioner‟s ruling. Oakview moved to stay the entry of judgment, claiming
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among other things that it would suffer irreparable harm should Ferch not be able
to repay any overpayment of benefits. The district court denied the stay.
On October 23, 2006, the district court, citing Rethamel v. Havey, 715
N.W.2d 263, 266 (Iowa 2006), denied Oakview‟s motion to reconsider, stating it
was without authority to alter the decision of the workers‟ compensation
commission.
Oakview filed a motion for enlargement of findings of fact and
conclusions of law, specifically asking the court to address whether interest was
to be awarded on the penalty benefits. No ruling was made in the district court
prior to Ferch‟s collection efforts. Oakview appealed.
The supreme court granted limited remand for the purpose of allowing the
district court to determine whether interest should apply to the commissioner‟s
award of penalty benefits. The district court concluded that interest pursuant to
Iowa Code section 85.30 applies to the award of penalty benefits. The appeal
from the ruling on judicial review and the appeal on the denial of motion for stay
were consolidated. We begin our discussion with the appeal from the ruling on
judicial review.
Scope and Standard of Review.
Our scope of review in workers‟
compensation cases is governed by the Iowa Administrative Procedure Act,
chapter 17A of the 2005 Iowa Code. Iowa Code § 86.26; Meyer v. IBP, Inc., 710
N.W.2d 213, 218 (Iowa 2006). Our review of the commissioner‟s decision is for
errors at law, not de novo. Finch v. Schneider Specialized Carriers, Inc., 700
N.W.2d 328, 330 (Iowa 2005). “Under the Act, we may only interfere with the
commissioner‟s decision if it is erroneous under one of the grounds enumerated
14
in the statute, and a party‟s substantial rights have been prejudiced.” Meyer, 710
N.W.2d at 218.
The district court acts in an appellate capacity to correct errors of law on
the part of the agency. Mycogen Seeds v. Sands, 686 N.W.2d 457, 463 (Iowa
2004).
In reviewing the district court‟s decision, we apply the standards of
chapter 17A to determine whether our conclusions are the same as those
reached by the district court. Clark v. Vicorp Rests., Inc., 696 N.W.2d 596, 603
(Iowa 2005).
Factual findings regarding the award of workers‟ compensation benefits
are within the commissioner‟s discretion, so we are bound by the commissioner‟s
findings of fact if they are supported by substantial evidence. Mycogen Seeds,
686 N.W.2d at 464-65. Because factual determinations are within the discretion
of the agency, so is its application of law to the facts. Clark, 696 N.W.2d at 604;
see also Meyer, 710 N.W.2d at 219 (stating the reviewing court should “allocate
some degree of discretion” in considering the agency‟s application of law to facts,
“but not the breadth of discretion given to the findings of facts”). We will reverse
the agency‟s application of the law to the facts if we determine its application was
“irrational, illogical, or wholly unjustifiable.” Meyer, 710 N.W.2d at 218.
Appeal of Workers’ Compensation Benefits.
June 4, 2001 Neck Injury. We first address Oakview‟s challenge to the
award of permanent partial disability benefits relating to Ferch‟s June 4, 2001
neck injury. Oakview contends that following the surgical fusion of her vertebrae,
Ferch sustained no industrial disability because she returned to work performing
her former duties on a full-time basis without medical restrictions. Relying upon
15
Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991), Oakview argues that under
these circumstances Ferch could not be found to have sustained an industrial
disability and we must, as a matter of law, reverse.
We believe Oakview reads Bearce too broadly. “Bearce does not stand
for the proposition that there can be no industrial disability when the employee
has returned to the same job.” Keystone Nursing Care Ctr. v. Craddock, 505
N.W.2d 299, 306 (Iowa 2005). In Keystone Nursing Care Center, the employer
argued “there is no disability from an injury that results in permanent functional
impairment when an employee is able to return back to work at his or her
occupation.” Id. at 305. The court noted that industrial disability does not rest
solely on functional impairment. Id. at 306. Nor are an employee‟s post-injury
earnings determinative.
Id.
The supreme court reinforced the principle that
industrial disability is a multifaceted issue requiring an analysis of the employee‟s
functional
impairment,
age,
education,
intelligence,
work
experience,
qualifications, ability to engage in similar employment, and adaptability to
retraining. See id. at 306. The court in Keystone Nursing Care Center held there
was substantial evidence in the record to support the agency‟s fact findings that
Craddock had a functional impairment and that the impairment restricted her
ability to perform certain customary job duties. Id.
Oakview complains there is no evidence to support a finding that Ferch
was restricted in her ability to perform her employment duties and thus, as a
matter of law, we must reverse.
uncontroverted.
We do not believe the record is so
16
The commissioner adopted the findings of the deputy which note that
Ferch did have mobility limitations following her return to work after surgery, that
she had difficulty writing, and overhead work caused her pain. In light of these
facts, as well as the other factors relevant to the industrial disability
determination, the district court correctly concluded that substantial evidence
supported the commissioner‟s finding of industrial disability.
Because the commissioner considered the proper factors in assessing
Ferch‟s industrial disability and because those factors are supported by
substantial evidence, there is no basis to reverse the commissioner‟s award of
permanent partial disability benefits.
Penalty Award for June 4, 2001 Injury.
We find, however, that the
Keystone Nursing Care Center opinion requires reversal of the award of penalty
benefits.
Iowa Code section 86.13 (2003) provides: “If a delay in commencement
or termination of benefits occurs without reasonable or probable cause, the
industrial commissioner shall award [penalty] benefits.” Id. para. 4 (emphasis
added). A “reasonable cause” exists if “the employer had a reasonable basis to
contest the employee‟s entitlement to benefits.” Keystone Nursing Care Ctr., 705
N.W.2d at 307. A reasonable basis for denial of the claim exists if the claim is
“fairly debatable.” Id.
In Keystone Nursing Care Center, the supreme court found that penalty
benefits were not appropriate where the employer was informed by the
employee‟s treating physician that the employee could return to her former
employment without restriction. Id. at 308. The court stated,
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“Whether this information ultimately turned out to be correct in view
of [the doctor‟s] oral instructions … is unimportant. What is
determinative is whether the employer was reasonable in accepting
the physician‟s release at face value and concluded the claimant‟s
entitlement to industrial disability was questionable. . . . . .[I]n view
of the employer‟s reasonable belief that the claimant could perform
her pre-injury job without limitation, the issue of industrial disability
was fairly debatable as a matter of law.
Id. (internal quotation omitted). We therefore reverse the commissioner‟s award
of penalty benefits.
We note that this ruling may seem incorrect in light of the district court‟s
conclusion that the employer appears to have taken unwarranted action to delay
or avoid payments.
See id., 705 N.W.2d at 310-11 (Cady, J. specially
concurring) (noting that an employer may have a reasonable basis to contest a
claim, but can still unreasonably delay the claim by engaging in delay tactics).
However, we feel required to reach the conclusion in light of the above quoted
holding in Keystone Nursing Care Center.
Because we reverse the award of penalty benefits, we do not address the
issue of whether interest is properly applied to the penalty benefits.
November 9, 2003 Back Injury. Oakview argues that substantial evidence
does not support the finding of a causal connection between Ferch‟s November
2003 back injury and a permanent disability. Oakview asserts, “the greater
weight of the medical evidence, however, indicates there is not causal
relationship between the November 9, 2003 back strain, any need for permanent
restrictions, and any associated impact of the restrictions on Ferch‟s employment
status.”
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We must examine whether the commissioner‟s conclusions are supported
by substantial evidence in the record made before the agency when the record is
viewed as a whole. Finch, 700 N.W.2d at 331. Evidence is substantial if a
reasonable mind would accept it as adequate to reach a conclusion. Heartland
Specialty Foods v. Johnson, 731 N.W.2d 397, 400 (Iowa Ct. App. 2007). An
agency‟s decision does not lack substantial evidence because inconsistent
conclusions may be drawn from the same evidence. Id. We broadly and liberally
construe the commissioner‟s finding to uphold, rather than defeat the decision.
Id.
Here the record, when viewed as a whole, contains substantial support for
the agency‟s finding of permanent disability resulting from Ferch‟s November
2003 back injury.
Oakview argues that even if there is evidence to support a
finding of causal connection, the commissioner‟s award was excessive. This
argument is based upon Oakview‟s contention that the “full responsibility” rule
does not apply here, but rather Iowa Code section 85.36(9)(c) governs.
The extent of industrial disability is a question of fact for the workers‟
compensation commissioner.
See Bearce, 465 N.W.2d at 536. Here the
commissioner concluded that as a result of “successive work-related injuries”
Ferch sustained an industrial disability of thirty percent related to her 2003 injury.
The commissioner ruled: (1) Oakview was to pay one hundred weeks of
permanent partial disability benefits from February 21, 2002, at a rate of $253.84
per week; (2) Oakview was to pay 6.857 weeks of permanent partial disability
benefits from December 4, 2003, to January 21, 2004, at a rate of $30.61 per
week; and (3) Oakview was to pay 143.143 weeks of permanent partial disability
19
benefits from January 22, 2004, at a rate of $284.45 per week. (We note that the
rates of pay per week were stipulated by the parties.) The commissioner found
that Iowa Code section 85.36(9)(c) applied. The commissioner noted an overlap
of benefit periods and awarded Ferch benefits as to only one injury during the
period of overlap, at the higher rate of pay.
Oakview argues that application of the statute in such a way “as to merely
eliminate overlap in payment is not the equivalent of apportioning the disability
resulting from or the disability benefits associated with the two injuries.” We
conclude the commissioner‟s method of apportionment was not erroneous.
“Apart from statute, in a situation of two successive work-related injuries,
„the employer is generally held liable for the entire disability resulting from the
combination of the prior disability and the present injury.‟”
Celotex Corp. v.
Auten, 541 N.W.2d 252, 253 (Iowa 1995) (quoting 2 Arthur Larson, The Law of
Workmen’s Compensation § 59.00, at 10-492.320 (1994)).
This is our full-
responsibility rule. Thus, we have no difficulty holding Oakview responsible for
Ferch‟s successive work-related injuries.
Oakview claims this conclusion must be abrogated by the following
statutory provision:
In computing the compensation to be paid to any employee who,
before the accident for which the employee claims compensation,
was disabled and drawing compensation under the provisions of
this chapter, the compensation for each subsequent injury shall be
apportioned according to the proportion of disability caused by the
respective injuries which the employee shall have suffered.
Iowa Code § 84.36(9)(c) (2003).
20
If an employee is incapacitated to work because of a compensable injury
and is receiving permanent partial disability benefits and again suffers a
compensable injury, section 85.36(9)(c) applies.
See Mycogen Seeds, 686
N.W.2d at 466. In Excel Corp. v. Smithart, 654 N.W.2d 891, 898 (Iowa 2002)
(citing Celotex Corp., 541 N.W.2d at 254-55), our supreme court noted that the
rationale for the full-responsibility rule is that regardless of the disability
sustained, a worker who returns to work does so as a “working unit.” The court
noted that the rationale that supports the full-responsibility rule supports the
statutory exception.
If a worker was disabled from a prior injury and still receiving
benefits for that prior injury, the worker has not yet, in theory,
resumed employment as a “working unit.” Thus, when two injuries
occur too close in time, it is the apparent judgment of our legislature
that the worker loses his or her entitlement to two separate
compensable disabilities and may only recover compensation for
the total disability as a result of both injuries.
Excel Corp., 654 N.W.2d at 899.
The district court found that the commissioner correctly applied the
apportionment statute, allowing Ferch to recover for only one injury during the
time of overlapping benefit periods. An agency‟s application of law to the facts
can only be reversed if we determine such an application was “irrational, illogical,
or wholly unjustifiable.”
Iowa Code § 17A.19(10)(m).
We do not find the
commissioner‟s method of apportionment was “irrational, illogical or wholly
unjustifiable.”
District Court’s Denial of Motion to Stay Judgment.
The Iowa
Supreme Court has recently issued two decisions addressing motions to stay
entry of judgment on a workers‟ compensation award. See Snap-On Tools v.
21
Schadendorf, ____ N.W.2d ____ (Iowa 2008); Grinnell College v. Osborn, 751
N.W.2d 396, 401-04 (Iowa 2008).
In Grinnell College, the supreme court
emphasized that a stay in a workers‟ compensation proceeding could only be
entered under the same guidelines governing a stay in other agency action. Id.
at 401. It is the movant‟s burden to establish the propriety of a stay. See SnapOn Tools, ____ N.W.2d at ____.
Oakview argues, as did the employer in Grinnell College, that should the
district court ultimately decide to reduce or reverse the benefit award, there are
legal and practical impediments to recovering overpayments from the employee
and thus it would suffer irreparable injury. This mere allegation of “irreparable
injury” is not sufficient. See Grinnell College, 751 N.W.2d at 403. Oakview
argues that Ferch did not show she would suffer harm were benefits not paid.
However, it was not Ferch‟s burden. As movant, it was Oakview‟s burden to
establish the propriety of the stay. See Snap-On Tools, ____ N.W.2d at ____
(affirming stay where movant failed to provide court with record to review).
Oakview did not sustain its burden; therefore, the district court did not err in
denying its motion.
Due Process. Oakview alleges the denial of it motion to stay constituted
a denial of its constitutional rights to due process.
While this claim was
summarily made in resistance to the application for entry of judgment, no ruling
was made on the claim by the district court.
Oakview did not file a motion
requesting a ruling by the district court. The issue is not properly preserved. See
Grinnell College, 751 N.W.2d at 404.
22
Conclusion. There is substantial evidence to support the commissioner‟s
award of permanent partial disability benefits for Ferch‟s June 4, 2001 injury, and
that award is therefore affirmed. The award of penalty benefits cannot stand;
however, the claim of industrial disability where Ferch returned to work without
restrictions was fairly debatable as a matter of law. The commissioner‟s award of
penalty benefits for failure to pay permanent partial disability benefits related to
the June 2001 neck injury is reversed. The commissioner‟s award for permanent
partial disability benefits related to Ferch‟s November 2003 back injury is
supported by substantial evidence and is therefore affirmed. The commissioner‟s
apportionment of benefits was not erroneous and is affirmed. Finally, the district
court did not err in denying Oakview‟s motion to stay, and that ruling is affirmed.
AFFIRMED IN PART AND REVERSED IN PART.
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