Opinion
No. 2-075 / 01-0702.
Filed April 24, 2002.
Appeal from the Iowa District Court for Polk County, ROBERT J. BLINK, Judge.
An employee appeals the decision of the district court, which reversed the decision of the Iowa Workers' Compensation Commissioner on the extent of the employee's industrial disability. REVERSED AND REMANDED.
Dennis Emanuel of Webber, Gaumer Emanuel, P.C., Ottumwa, and Anne Clark of Hopkins Huebner, P.C., Des Moines, for appellant.
Dorothy Kelley, Des Moines, for appellee.
Considered by MAHAN, P.J., and MILLER and HECHT, JJ.
An employee appeals the decision of the district court, which reversed the decision of the Iowa Workers' Compensation Commissioner on the extent of the employee's industrial disability. The employee claims: (1) the commissioner's decision regarding his disability ratings was supported by substantial evidence and not was arbitrary, unreasonable, or capricious; (2) it was not error to assign him separate disability ratings for successive injuries; and (3) the employer's accommodation of his injuries was not sufficient reason to reverse the commissioner. We reverse the decision of the district court and remand.
Joseph Smithart has been employed at Excel Corporation since 1989 in a variety of physical labor jobs. Smithart has been diagnosed with degenerative disc disease. He injured his back on November 30, 1995, while lifting boxes of meat. Dr. Donald Berg placed Smithart under a permanent fifty-pound lifting restriction. Smithart continued with his work, but injured his back again on May 6, 1997, while lifting boxes. Dr. Berg imposed a twenty-five pound lifting restriction, and recommended that Smithart not perform frequent twisting or bending with his back. Dr. Berg gave the opinion his work aggravated his back condition. Smithart remains employed at Excel.
Smithart was born in 1951. He is in the borderline range of mental retardation. He has an eighth-grade education. Smithart worked at the Davenport Sewage Treatment Plant for about fourteen years doing custodial work. He then moved to Ottumwa to be near family. He worked as a roofer for about four years. Smithart was at the Hormel Water Treatment Plant for two years, taking water samples and doing minor repairs. As noted above, he began working for Excel in 1989, and has remained there.
On October 13, 1997, Smithart filed a claim seeking workers' compensation benefits for his November 1995 injury. On May 4, 1999, he filed a claim regarding his May 1997 injury. A hearing on both cases was held on May 18, 1999.
At the hearing, the deputy workers' compensation commissioner also considered Smithart's claims regarding bilateral carpal tunnel and left cubital tunnel injuries. The deputy determined there was no evidence of any permanent disability. These claims are not part of the present appeal.
The deputy workers' compensation commissioner found "In view of [Smithart's] level of intellectual functioning, any loss of physical ability is much more detrimental to him than it would be to an individual with average or higher intellectual functioning." The deputy found he had a twenty-percent loss of earning capacity due to the November 1995 injury and his earning capacity was reduced by an additional forty percent following the May 1997 injury. The deputy found there was no basis for apportioning the disability from either injury. The chief deputy workers' compensation commissioner upheld the deputy's decision. In a decision dated August 24, 2000, Smithart was awarded one hundred weeks of compensation beginning December 1, 1995, for the first injury and two hundred weeks of compensation beginning May 7, 1997, for the second injury.
Excel filed a petition for judicial review. The district court determined there was not substantial evidence in the record to support a conclusion that Smithart had a total of sixty percent permanent industrial disability. The court noted, "His work history reveals no significant problems, inability to maintain long term employment, or to function in an on-the-job learning situation." The court determined the November 1995 injury did not support a twenty-percent industrial disability award because Smithart continued in his same employment. The court also concluded the commissioner improperly compounded the disability awards. The court reversed the commissioner and remanded for the entry of "an award, commensurate with the facts and appropriate application of law." Smithart appeals.
The district court did not find there was a lack of substantial evidence to support the award of forty-percent industrial disability to the May 1997 injury. That award does not need to be revisited in this appeal.
I. Scope of Review
An appeal of a district court's ruling on judicial review of an agency's decision is limited to determining whether the district court correctly applied the law in exercising its judicial review function under Iowa Code section 17A.19(8) (1999). Herrera v. IBP, Inc., 633 N.W.2d 284, 287 (Iowa 2001). The district court, as well as this court, is bound by the commissioner's factual findings if they are supported by substantial evidence in the record. IBP, Inc. v. Harpole, 621 N.W.2d 410, 414 (Iowa 2001).
II. Industrial Disability
Smithart contends the district court erred in finding there was not substantial evidence in the record to support the award of twenty-percent permanent industrial disability based on the November 1995 injury.
Industrial disability means reduced earning capacity. Hartman v. Clarke County Homemakers, 520 N.W.2d 323, 329 (Iowa Ct.App. 1994). The commissioner considers the employee's functional impairment, age, intelligence, education, qualifications, experience, and the ability of the employee to engage in employment for which he or she is suited. Second Injury Fund v. Nelson, 544 N.W.2d 258, 265-66 (Iowa 1995). A showing of actual diminution in earnings is not necessary to demonstrate an injury-induced reduction in earning capacity. Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824, 831 (Iowa 1992).
If the commissioner's decision regarding a disability rating is supported by substantial evidence, it must be affirmed. Cargill, Inc. v. Conley, 620 N.W.2d 496, 502 (Iowa 2000). Evidence is substantial when a reasonable mind would accept it as adequate to reach the commissioner's conclusions. Murillo v. Blackhawk Foundry, 571 N.W.2d 16, 17 (Iowa 1997). Evidence may be substantial even if it would support contrary findings. Myers v. F.C.A. Servs., Inc., 592 N.W.2d 354, 356 (Iowa 1999).
We find there is substantial evidence in the record to support the commissioner's finding that Smithart had a twenty-percent industrial disability after the November 1995 injury. With Smithart's limited education and mental capacity, he is best suited for unskilled manual labor. The commissioner could reasonably conclude that the fifty-pound lifting restriction limited his access to the job market. A psychological assessment of Smithart stated, "the combination of significant physical limitations with his intellectual difficulties might serve to substantially limit his range of available vocational options."
The district court found the commissioner's decisions regarding Smithart's disability ratings were unreasonable, arbitrary, and an abuse of discretion. An agency decision is unreasonable when the evidence supporting the actions allows for no difference of opinion among reasonable minds or is not supported by substantial evidence. Myers, 592 N.W.2d at 356. We have already found the commissioner's decision is supported by substantial evidence, and find that is was not unreasonable, arbitrary, or an abuse of discretion.
III. Apportionment
The commissioner concluded, "Because the injuries occurred with the same employer and they were injuries related to this employment, no apportionment is appropriate." The district court, however, determined the commissioner had improperly compounded disability ratings for multiple claims submitted at the same hearing for the same employer.
Statutory apportionment is found in section 85.36(9)(c) (1997), which provides:
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.
This rule does not apply to compensable injuries arising under the Second Injury Fund. Iowa Code § 85.36(9)(c). No claims regarding the Second Injury Fund are raised in this case. See Iowa Code § 85.64; Second Injury Fund v. Shank, 516 N.W.2d 808, 812 (Iowa 1994).
Section 85.35(9)(c) "allows apportionment as to any employee who is disabled and receiving workers' compensation benefits when the employee is again injured on the job." Celotex Corp. v. Auten, 541 N.W.2d 252, 256 (Iowa 1995). This means the employee must be drawing compensation at the time of the second injury. Venegas v. IBP, Inc., 638 N.W.2d 699, 702 (Iowa 2002); see also Hamilton v. Johnson Sons, 224 Iowa 1097, 1107, 276 N.W. 841, 846 (1937).
In the present case, Smithart was awarded one hundred weeks of compensation beginning December 1, 1995, for his first injury. We calculate his compensation would have ended on or about November 6, 1997. Smithart received his second injury on May 6, 1997. Thus, if we impute to Smithart the compensation he was awarded in the chief deputy's decision back to the date the chief deputy stated the compensation commenced, Smithart comes under the apportionment provisions of section 85.36(9)(c).
Apportionment, however, has been judicially limited:
to those situations where a prior injury or illness, unrelated to the employment, independently produces some ascertainable portion of the ultimate industrial disability which exists following the employment related aggravation.Celotex, 541 N.W.2d at 255 (citing Varied Enter., Inc. v. Sumner, 353 N.W.2d 407, 411 (Iowa 1984)). Apportionment only applies where the prior injury was "unrelated to the employment." Tussing v. George A. Hormel Co., 461 N.W.2d 450, 453 (Iowa 1990). "In other words, the industrial disability is apportioned between that caused by the work-related injury and that caused by the nonwork-related condition or injury." Nelson, 544 N.W.2d at 264. Here, Smithart's first injury was work-related, and we therefore conclude apportionment should not apply.
In situations where there are two successive work-related injuries, so that apportionment does not apply, "the employer is generally held liable for the entire disability resulting from the combination of the prior disability and the present injury." Celotex, 541 N.W.2d at 256. This is known as the full responsibility rule. Nelson, 544 N.W.2d at 265. Thus, an employer liable for a current injury is also liable for any preexisting industrial disability caused by a work-related injury when that disability combines with industrial disability caused by a later injury. Id. The full responsibility rule applies whether the previous work-related injury arose when the employee was employed with the same employer or a different employer. Venegas, 638 N.W.2d at 701. We conclude the commissioner properly determined Excel should be responsible for Smithart's combined industrial disability caused by the two injuries he sustained while employed there.
IV. Accommodation
Smithart contends his industrial disability awards should not be overturned based on Excel's accommodation of his disability. The district court noted Excel had fully accommodated Smithart's restrictions, and stated that to award him sixty-percent industrial disability under these circumstances would be unfair and unjust.
In determining a claimant's loss of earning capacity, an employer's accommodation of an employee's restrictions may only be considered if such accommodation would be available in the general labor market. Murillo, 571 N.W.2d at 18. Otherwise, the loss of earning capacity must be based on the injured worker's present ability to work in the competitive job market without regard to any accommodation furnished by the employer. Ellingson v. Fleetguard, Inc., 599 N.W.2d 440, 445 (Iowa 1999).
Whether accommodation would be available in the general labor market is a factual question to be decided by the commissioner. Murillo, 571 N.W.2d at 18. The commissioner found:
Although Excel allowed claimant to work within his restrictions, there does not appear to be any special accommodation, the job claimant was doing was a regular production and this job was not a newly created job for claimant.
We find there is substantial evidence in the record to support the commissioner's finding on this issue. There was evidence there were few jobs at Excel that required heavy lifting, and Smithart was able to perform a regular job.
We reverse the decision of the district court and remand with directions to affirm the decision of the chief deputy workers' compensation commissioner.
REVERSED AND REMANDED.