Opinion
No. 2-681 / 02-0290
Filed September 25, 2002
Appeal from the Iowa District Court for Woodbury County, John D. Ackerman, Judge.
Joseph Benoit appeals a ruling on judicial review affirming the workers' compensation commissioner decision awarding him workers' compensation benefits. AFFIRMED.
Ruth Carter of the Carter Law Firm, P.C., Sioux City, for appellant.
Thomas Plaza and Judith Higgs of Heidman, Redmond, Fredregill, Patterson, Plaza, Dykstra Prahl, L.L.P., Sioux City, for appellee.
Considered by Sackett, C.J., and Vogel and Mahan, JJ.
AFFIRMED. See Iowa R. App. P. 6.24.
Mahan, J., concurs; Sackett, C.J., dissents.
I would remand to the agency to make a determination of claimant's loss of earning capacity without consideration for claimant's current position at Smurfit. Claimant Benoit argues the deputy commissioner erroneously took workplace accommodations by Smurfit into account when setting his earning capacity loss at ten percent. Claimant believes his loss in earning capacity was erroneously calculated at ten percent because he remained employed, with accommodations, at Smurfit. Claimant asserts this is an error at law under Quaker Oats Co. v. Ciha, 552 N.W.2d 143, 157-58 (Iowa 1996) and Thilges v. Snap-On Tools, Corp., 528 N.W.2d 614, 617 (Iowa 1995). In those cases the supreme court concluded that calculations of loss of earning capacity should be made according to the injured worker's lost ability to compete in the job market, without regard for the accommodations now furnished by the worker's employer.
The deputy commissioner made the specific finding, "[T]here is little question that Joe would have difficulty finding replacement employment should he leave Smurfit due to his history of back injuries." The deputy then proceeded to base his finding of a ten percent loss in earning capacity upon claimant's current job at Smurfit, even stating that if claimant's employment situation were to change, his award was subject to review. Using such a basis to calculate loss in earning capacity contradicts Quaker Oats and Thilges. Both the chief deputy commissioner and the district court acknowledged this on appeal, but both affirmed the decision by either disregarding that part of the decision, as the chief deputy did, or relying upon the "additional analysis" given by the deputy for the award, as the district court did.
In affirming, the chief deputy stated,
Claimant's award of industrial disability is based on the effects of his work injury on his ability to compete for jobs in the employment market. To the extent his present employment constitutes an accommodation, that factor is disregarded.
In affirming that decision, the district court stated,
Clearly, if there was any error by the deputy in incorporating the employer's accommodation into his determination of industrial disability, it was remedied by the additional analysis set forth in the appeal decision.
But there is no additional analysis. Besides a statement of the law of Thilges, the chief deputy simply made no further analysis, and the deputy's opinion, which was adopted by the chief deputy, was based wholly upon claimant's current employment with Smurfit. After finding without explanation that claimant had suffered a ten percent loss, the deputy included only the following as support for his finding:
A good deal of this claim is based upon ongoing pain suffered by claimant in his current job. To date he has chosen to remain in that job. Worker's compensation statutes cannot compensate for pain and suffering. Statute benefits can only be awarded on the basis of an assessment of disability and in this case a loss of earning capacity. However, it must be pointed out that this decision is based upon his current employment. Should that change in the next three years, this agency is available to review and reopen of this award.
All of the offered support for the deputy's decision, as it explicitly states, is based upon claimant's employment at Smurfit.
I would remand to the agency to make a determination of loss of earning capacity, calculated according to claimant's lost ability to compete in the job market, with specific disregard for his current position at Smurfit.