WEST RIDGE CARE CENTER, Plaintiff-Appellant, vs. ANNETTE JOHNSON, Defendant-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-462 / 08-2036
Filed October 7, 2009
WEST RIDGE CARE CENTER,
Plaintiff-Appellant,
vs.
ANNETTE JOHNSON,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Richard G. Blane II,
Judge.
West Ridge Care Center appeals from the district court’s judicial review
decision that affirmed the agency decision awarding employee benefits for a
permanent total disability. AFFIRMED.
Cynthia Scherrman Sueppel, Charles A. Blades, and Chris J. Scheldrup of
Scheldrup Blades Schrock Sand Aranza P.C., Cedar Rapids, for appellant.
Thomas M. Wertz and Daniel J. Anderson of Wertz & Dake, P.C., Cedar
Rapids, for appellee.
Heard by Vogel, P.J., Potterfield, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
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MAHAN, S.J.
West Ridge Care Center appeals from the district court’s judicial review
decision that affirmed the agency decision awarding employee benefits for a
permanent total disability to Annette Johnson. West Ridge contends that the
commissioner and district court erred in finding Johnson permanently and totally
disabled under the traditional analysis and the odd-lot doctrine. We affirm.
I. Background Facts and Proceedings.
Annette Johnson began working at West Ridge (a residential care facility
serving the elderly) as a housekeeper in 1994. Within a year, Johnson began
working in the laundry department.
Her job duties included loading and
unloading washing machines and dryers, folding and ironing, picking up dirty
laundry around the facility, and delivering clean laundry to residents. At the time
of the arbitration hearing, Johnson was forty-three years old.
She has an
eleventh grade education and has not obtained a GED or high school diploma.
Prior to working for West Ridge, Johnson worked briefly at a photography studio,
but has no other work experience or marketable skills. Johnson’s supervisors at
West Ridge, however, have described her as hard-working, smart, and
organized—a “star employee” with a perfect attendance record.1
In 2002, Johnson sustained a back injury when she maneuvered to catch
a heavy laundry cart that was falling toward a wheelchair-bound resident. An
MRI revealed a disk herniation at L4-5 on the right. Dr. Loren Mouw performed a
diskectomy and partial facetectomy on Johnson on August 12, 2002, and
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Johnson’s supervisors testified that her performance and work ethic remained
exemplary even after her injury.
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released Johnson to work without permanent restrictions on November 10, 2003.
On October 20, 2005, Dr. Douglas Sedlacek, the pain management specialist in
charge of Johnson’s post-surgery care, declared Johnson to be at maximum
medical improvement. Dr. Sedlacek gave Johnson several work restrictions:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
One eight-hour shift per day with a maximum of 32 hours
weekly;
20 lb lifting restriction;
No bending at the waist to the floor;
Sit as needed;
Continue use of a helper 4 hours of the 8 hour shift; and
Possibly schedule to work only two days in a row.
On January 23, 2007, Dr. Sedlacek imposed a three-week trial restriction of sixhour shifts per day to see if Johnson’s pain improved. Johnson continued to
work six-hour shifts as of the time of the arbitration hearing.
Johnson was issued two different impairment ratings: Dr. William Roberts
assigned an impairment of seven percent body as a whole on December 6, 2005,
and Dr. John Kuhnlein assigned an impairment of fifteen percent body as a
whole on November 29, 2006.
At Johnson’s request, vocational specialist
Barbara Laughlin authored a report on January 3, 2007.
Laughlin’s report
included the following findings:
Ms. Johnson has significant restrictions and is currently
being greatly accommodated by her employer. However, in terms
of her employability, it is necessary to look beyond one employer.
It is possible that she could be fired, her employer could be bought
by another, or the company could go out of business. . . .
It is unlikely that any other employer would hire Ms. Johnson
for comparable work and also hire a helper to assist her for four
hours per day. This is particularly true in light of the fact that she
has no unique or unusual skills to bring to the labor market.
If Ms. Johnson were to seek work elsewhere, it is my opinion
that she would face extreme difficulty in obtaining employment.
Additionally, she does not hold a high school diploma or GED,
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which is sought after by employers in even factory or unskilled
work.
West Ridge accommodated Johnson’s restrictions and she was able to
maintain her employment.2
from her injury.
However, Johnson continued to experience pain
Eventually, on June 14, 2006, Johnson filed for workers’
compensation benefits. After an arbitration hearing on March 8, 2007, the deputy
workers’ compensation commissioner determined Johnson was permanently and
totally disabled, under both the odd-lot doctrine and by traditional analysis. On
April 28, 2008, the commissioner affirmed and adopted the deputy’s decision as
final agency action with additional analysis. On judicial review, the district court
affirmed the agency’s decision. West Ridge now appeals.
II. Scope and Standard of Review.
Iowa Code chapter 17A governs our review of the decisions of the
workers’ compensation commissioner.
Iowa Code § 86.26 (2007); Midwest
Ambulance Serv. v. Ruud, 754 N.W.2d 860, 864 (Iowa 2008).
The factual
findings of the commissioner are reversed only if they are not supported by
substantial evidence. Iowa Code § 17A.19(10)(f); Midwest, 754 N.W.2d at 864.
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). 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 v. IBP, Inc., 710 N.W.2d 213, 218 (Iowa 2006).
In
reviewing the district court’s decision, we apply the standards of chapter 17A to
2
By all accounts, the record indicates West Ridge was an exemplary employer.
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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).
III. Merits.
West Ridge argues the commissioner and the district court erred in
determining Johnson is permanently and totally disabled. West Ridge contends
the decisions were based on an irrational, illogical, or wholly unjustifiable
application of law to fact, when Johnson returned to physically demanding work
full-time for several years after her surgery.
West Ridge alleges that the
undisputed facts of this case show Johnson has significant physical capacity
even with her restrictions. West Ridge further argues the decisions were not
supported by substantial evidence in the record, when Johnson continues to
excel at her work and be a successful employee.
The commissioner may award permanent total disability benefits pursuant
to Iowa Code section 85.34(3). Total industrial disability occurs when an injury
“wholly disables the employee from performing work that the employee’s
experience, training, intelligence, and physical capacities would otherwise permit
the employee to perform.” IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 633 (Iowa
2000). Total disability does not require a state of absolute helplessness. Acuity
Ins. v. Foreman, 684 N.W.2d 212, 219 (Iowa 2004). The issue is whether there
are jobs in the community the employee can do for which the employee can
realistically compete. Second Injury Fund of Iowa v. Shank, 516 N.W.2d 808,
815 (Iowa 1994).
Industrial disability means reduced earning capacity. McSpadden v. Big
Ben Coal Co., 288 N.W.2d 181, 182 (Iowa 1980). Many factors are considered
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in determining industrial disability, including the employee’s age, intelligence,
education, qualifications, experience, bodily impairment, and the injury’s effect on
the employee’s ability to find suitable work. Wal-Mart Stores, Inc. v. Caselman,
657 N.W.2d 493, 495 (Iowa 2003).
A worker with only a partial functional
disability has a total industrial disability, when the combination of factors
precludes the worker from obtaining regular employment to earn a living. Guyton
v. Irving Jensen Co., 373 N.W.2d 101, 103 (Iowa 1985); see also Second Injury
Fund of Iowa v. Nelson, 544 N.W.2d 258, 266 (Iowa 1996) (“[T]he focus is not
solely on what the worker can and cannot do; the focus is on the ability of the
worker to be gainfully employed.”).
The deputy workers’ compensation commissioner determined as follows:
Johnson is 43 years old and without either a high school
diploma or GED. Her work experience is entirely in unskilled or
semi-skilled work including medium physical demand requirements.
Due to the restrictions imposed by Dr. Sedlacek, she cannot lift
over 20 pounds, cannot bend, must be able to sit whenever
necessary, and is limited to a 32-hour week—and must have a
dedicated helper for half of each work day. Vocational specialist
Laughlin’s opinion is persuasive in this case: it is highly unlikely that
another employer will provide this laundry worker similar work along
with a dedicated assistant on a half-time basis. While West Ridge
argues that Johnson has experience in the “ever-growing field of
residential care,” it is more accurate to note that she has
experience only as a laundry worker and housekeeper. There is no
showing, for example, that she has medical or administrative skills.
Any evaluation of her industrial loss must take into account the
skills and experience that Johnson actually has, not an overlyoptimistic view of skills and experience that she does not have.
Thereafter, the commissioner affirmed and adopted the deputy’s decision as final
agency action with additional analysis:
I must admit that an award of total disability to a person who
was working up to eight hours per day, 32 hours a week, shortly
before hearing is a bit unusual. The restriction at the time of
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hearing limiting her work hours to six per day was only temporary.
However, the permanent restriction that claimant can only work half
of the time without a helper, even when she is following the other
significant restrictions in her job at West Ridge is the most obvious
impediment to employment outside of West Ridge.
The district court affirmed the agency decision, stating in part:
West Ridge argues that the Deputy’s total disability finding is
not supported by substantial evidence because the Deputy relied
too heavily on Johnson’s accommodations and disregarded the
evidence that Johnson’s work activities remained physically
strenuous even with the accommodations, Drs. Roberts’ and
Kuhnlein’s impairment ratings are not severe enough to support
total disability, and the permanent restrictions imposed by Dr.
Sedlacek in October 2005 are not severe or onerous. After
reviewing the record as a whole, this Court finds that the Deputy’s
total disability finding is supported by substantial evidence. It was
the Deputy’s responsibility to weigh the industrial disability factors
along with all the other evidence in the record. Moreover, the
Deputy considered the industrial disability factors appropriate to
Johnson’s situation before arriving at a finding of industrial
disability.
....
The question on judicial review is not whether the evidence
supports a different finding, but whether it supports the finding the
Deputy actually made. The possibility that the Deputy could have
found that Johnson is not permanently and totally disabled does not
prevent the finding that she is from being supported by substantial
evidence.
....
The Court understands Petitioner’s frustration and argument
that it does not seem logical that the Respondent can be found
permanently totally disabled and yet continue to work within
restrictions for 32 hours per week at a position provided by
Petitioner. However, as this Court’s analysis shows, under the law,
this conclusion may be properly reached by the Workers’
Compensation Commissioner, when, as here, it is supported by
both substantial evidence in the record and the application of law to
those facts as found by the Commissioner.
Our review of the record confirms the nature and substance of the
evidence cited in the commissioner’s findings of fact. Like the district court, we
conclude substantial evidence supports the commissioner’s resulting decision
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awarding Johnson permanent total disability benefits. Nonetheless, West Ridge
contends substantial evidence does not support the commissioner’s finding that
Johnson cannot successfully be employed at a physically demanding job when
the evidence shows that she was similarly employed at West Ridge until shortly
before the hearing.
Johnson’s continued employment at West Ridge after her back injury is
not evidence that employment existed for her in the job market. The only reason
she was able to continue in that job is because West Ridge accommodated her
numerous restrictions and limitations (she was allowed to work shorter shifts, an
assistant helped her with heavy lifting for half of her shift, she was allowed to sit
when necessary, she used a spring-loaded cart to pick up and deliver laundry,
etc.). Such accommodations were not normally associated with the laundry job,
or any other job at the care center. In order for an accommodated job to be
considered a factor in discerning a worker’s earning capacity, it must appear the
accommodation would be available to the worker in the competitive job market.
See Murillo v. Blackhawk Foundry, 571 N.W.2d 16, 18 (Iowa 1997). There is no
evidence in the record suggesting the accommodation is available in the
competitive job market.
As such, we cannot consider the fact that Johnson
continued her employment at the care center after her injury as probative on the
issue of her employability or earning capacity.
Substantial evidence in the record supports the determination made by the
commissioner in this case.
See Iowa Code § 17A.19(10)(f).
A reasonable
person would find the evidence adequate to reach the same conclusion. We
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cannot therefore say the commissioner’s decision was irrational, illogical, or
wholly unjustifiable. Id. § 17A.19(10)(m). We therefore affirm.
Because we found substantial evidence supports the award of permanent
total disability benefits based on the theory of industrial disability, it is
unnecessary to address the odd-lot doctrine. We affirm the district court’s order
affirming the commissioner’s decision awarding Johnson permanent total
disability benefits.
AFFIRMED.
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