Opinion
No. 3-629 / 02-1978
Filed October 29, 2003
Appeal from the Iowa District Court forWoodbury County, Richard J. Vipond, Judge.
Les Hammond appeals the district court's ruling affirming the deputy commissioner's award of workers' compensation benefits against his employer, Peterson Air Conditioning Heating Service, Inc. AFFIRMED.
Shelley A. Horak of Shelley Horak Associates, P.C., Sioux City, for appellant.
Timothy A. Clausen of Klass, Stoik, Mugan, Villone, Phillips, Orzechowski, Clausen Lapierre, Sioux City, for appellee.
Heard by Huitink, P.J., and Zimmer and Miller, JJ.
Les Hammond appeals the district court's ruling affirming the deputy commissioner's award of workers' compensation benefits against his employer, Peterson Air Conditioning Heating Service, Inc. We affirm.
I. Background Facts Proceedings
On July 19, 1999, Hammond sustained a right medial meniscus tear to his knee in an accident arising out of and in the course of his employment with Peterson Air Conditioning. The following day, Hammond was treated by Dr. Dennis Nitz, and was eventually referred to Dr. Spencer Greendyke, an orthopedic specialist. Dr. Greendyke concluded that surgery was warranted and performed an arthroscopy and partial medial meniscectomy on Hammond's right knee. After recovery and physical therapy, Dr. Greendyke opined that Hammond suffered a seven percent permanent impairment to his lower extremity.
Hammond later sought treatment from Dr. Peter Rodman for recurrent pain in his knee. A second surgery was performed, and Dr. Rodman concluded Hammond could return to work in accordance with the results of the functional capacity examination administered in January of 2000. Further, Hammond was treated for situational depression resulting from his injury by his family physician, Dr. Sly.
The compensation claim went to arbitration and on December 5, 2001, the deputy commissioner ruled in part:
Claimant has sustained a scheduled injury to his right knee. There is no permanency related to claimant's mental injury, thus, his benefits are properly calculated pursuant to Iowa Code section 85.34(2)(o). Rule 876 IAC 2.4(85) provides that: "The Guides to the Evaluation of Permanent Impairment published by the American Medical Association are adopted as a guide for determining permanent partial disabilities under Iowa Code section 85.34(2) "a" to "s."" Claimant's argument that the 7 percent impairment rating given by Dr. Greendyke and affirmed by Dr. Rodman is inadequate compensation for his injury based on the vocational reports entered into evidence is unpersuasive. Scheduled member injuries are generally paid pursuant to an impairment rating given by the treating or evaluating physician pursuant to the AMA Guides to the Evaluation of Permanent Impairment.
This is true notwithstanding the fact that claimant has sought and obtained other employment that may pay him less per hour than he was currently making. Having reviewed the evidence including the AMA Guides, it is found that claimant's entitlement to permanent partial disability benefits is limited to the 7 percent impairment rating given by Dr. Greendyke.
Peterson Air Conditioning was ordered to pay Hammond 15.4 weeks of permanent partial disability benefits at the stipulated rate of $416.90 per week. The decision was affirmed by the Iowa Workers' Compensation Commissioner on July 24, 2002.
In his petition for judicial review, Hammond argued the deputy commissioner misinterpreted Iowa Code section 85.32 (2001) and made an artificial distinction between scheduled member and industrial disability. In its ruling on Hammond's petition for judicial review, the district court concluded that Hammond does not contend the commissioner misapplied current Iowa law, he instead insists the Iowa Supreme Court's distinction between scheduled and unscheduled injuries was erroneous. The court stated:
It may be that the disparate treatment of scheduled and unscheduled injuries is completely irrational. Neither the Commissioner nor this court has authority, however, to change the statute or to overrule any decision of the Supreme Court of Iowa. Any change in the statute must be made by the legislature. The Supreme Court of Iowa has exclusive authority to reconsider and correct its own prior decisions.
Hammond now appeals the district court's ruling arguing Iowa Code section 85.32 has been misapplied since Diederich v. Tri-City Ry. Co. of Iowa, 219 Iowa 587, 592-93, 258 N.W. 899, 901-02 (1935) was decided. He maintains the word disability in section 85.34 was first defined by the Iowa Supreme Court to mean industrial disability, and argues this interpretation correctly leaned in favor of the worker. See Diederich, 219 Iowa at 592-93, 258 N.W. at 901-02.
II. Standard of Review
Under Iowa Code section 17A.19(8), our review of agency action is to determine whether our conclusions are the same as those of the district court. Stephenson v. Furnas Elec. Co., 522 N.W.2d 828, 831 (Iowa 1994). We may reverse, modify, affirm or remand to the agency for further proceedings if the agency's action is affected by errors of law or is not supported by substantial evidence, when the record is viewed as a whole. Second Injury Fund v. Nelson, 544 N.W.2d 258, 264 (Iowa 1995).
III. The Merits
Hammond's claim that both the district court and the deputy commissioner misinterpreted section 85.32 by excluding evidence of his reduced earning capacity is misplaced. The Iowa Worker's Compensation Act divides permanent partial disability into either a scheduled or unscheduled injury. Honeywell v. Allen Drilling Co., 506 N.W.2d 434, 435 (Iowa 1993). The Iowa Supreme Court explained this difference in Sherman v. Pella Corp., 576 N.W.2d 312 (Iowa 1998). The court stated:
Section 85.34(2)(a)-(t) specifies the scheduled injuries, such as a loss of a hand, and sets forth the compensation payable for such injuries. Compensation for scheduled injuries is not related to earning capacity. In contrast, according to section 85.34(2)(u), unscheduled injuries are compensated by determining the employee's industrial disability. One arrives at industrial disability by determining the loss to the employee's earning capacity.
Sherman, 576 N.W.2d at 320-21 (citations omitted). Hammond does not argue that his injury should fall under the unscheduled category; he instead contends that earning capacity should be considered in calculating scheduled injury awards. This argument directly conflicts with the long-settled law of our state. As the court in Sherman held, "compensation for scheduled injuries is not related to earning capacity." Id.
Moreover, scheduled disability benefits are determined by using a functional method. Mortimer v. Fruehauf Corp., 502 N.W.2d 12, 15 (Iowa 1993). Functional disability is "limited to the loss of the physiological capacity of the body or body part." Id. at 14. Unscheduled injuries on the other hand, are determined by applying the industrial disability method. Id. at 15. "[I]ndustrial disability is arrived at by determining the loss to the employee's earning capacity of the body or body part," by considering such factors as functional disability, age, education, and ability to engage in similar employment. Id. at 14-15.
In a similar case, it has been noted that:
The schedule [injuries under Iowa Code sections 85.34(2)(a)-(t)] brings a windfall to the worker in some cases and gross hardship to the worker in others. Although it is argued the schedule has the advantage of simplicity, it is questionable whether that advantage is worth the cost. The result in the present case is indefensible except that it is demanded by an anachronistic statute.
Graves v. Eagle Iron Works, 331 N.W.2d 116, 120 (Iowa 1983) (McCormick, J., concurring). It is outside the province of this court to overturn well-settled distinctions in the law, no matter the increased hardship claimed by Hammond. Therefore, we agree with the district court and find the deputy commissioner correctly found that loss of earning capacity is not a proper factor for calculating permanent partial disability benefits for scheduled injuries.