Opinion
No. 3-955 / 03-0542
Filed March 10, 2004
Appeal from the Iowa District Court for Linn County, Amanda Potterfield, Judge.
Yeoman Company and EMC Insurance Companies appeal from the district court's judgment reversing the workers' compensation commissioner's decision denying benefits on review-reopening to a former employee. REVERSED AND REMANDED.
Anne Clark of Hopkins Huebner, P.C., Des Moines, for appellant.
Timothy Semelroth and John Riccolo of Riccolo Baker, P.C., Cedar Rapids, for appellee.
Heard by Huitink, P.J., and Vogel and Mahan, JJ.
I. Background Facts Proceedings
In January 1995 Dorothy Kirby petitioned for workers' compensation benefits, claiming she suffered a compensable back injury while employed by Yeoman. A deputy workers' compensation commissioner determined Kirby suffered a forty-percent industrial disability and awarded benefits accordingly. On appeal and cross-appeal, the commissioner affirmed the deputy's industrial disability determination and resulting award of benefits. Neither Kirby nor Yeoman sought judicial review of the commissioner's decision.
At the time of the arbitration hearing, Kirby was working fifteen hours per week at Yeoman. She continued to be so employed until February 3, 1999, when Yeoman eliminated her position. Yeoman offered Kirby another full-time position. Kirby declined and was consequently terminated.
Kirby thereafter petitioned for a review-reopening, claiming an increased industrial disability as the result of Yeoman's decision to end her accommodation employment. The deputy commissioner concluded Kirby suffered a thirty-percent increase in her industrial disability because Yeoman ended her accommodation employment. Yeoman and EMC appealed, and Kirby cross-appealed. The workers' compensation commissioner reversed the deputy's review-reopening decision. The Commissioner found "the change in circumstances that occurred in this case does not constitute grounds for review-reopening because the change was limited to factors that are not material to determining the extent of Dorothy's permanent disability." On judicial review the trial court reversed and remanded the commissioner's decision, resulting in this appeal.
Yeoman and EMC assert, "the district court erred in reversing the commissioner's fact finding that Kirby had not established a change of condition which warranted an increase in industrial disability benefits on her review-reopening petition." They argue an accommodation by an employer is not a factor in determining industrial disability and therefore, Kirby has suffered no change since the September 25, 1998, decision.
II. Standard 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) (2001). 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. IBP, Inc. v. Harpole, 621 N.W.2d 410, 414 (Iowa 2001).
III. The Merits
The purpose of a review-reopening proceeding is to determine "whether or not the condition of the employee warrants an end to, diminishment of, or increase of compensation so awarded or agreed upon." Iowa Code § 86.14(2) (2001).
The claimant carries the burden of establishing by a preponderance of evidence that, subsequent to the date of the award under review, he or she has suffered an impairment or lessening of earning capacity proximately caused by the original injury. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 350 (Iowa 1980); Deaver v. Armstrong Rubber Co., 170 N.W.2d 455, 457 (Iowa 1969).
The necessary showing in a review-reopening proceeding may be made without proof of change in physical condition. Blacksmith, 290 N.W.2d at 350, 3A Larson, The Law of Workmen's Compensation § 81.31(e), at 15-1030 (1989). That is because industrial disability is the product of many factors, only one of which is functional disability stemming from the physical injury. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980). Other factors include age, education, experience, and "inability, because of the injury, to engage in employment for which [the employee] is fitted." Id. (quoting Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963)).
Gallardo v. Firestone Tire Rubber Co., 482 N.W.2d 393, 395-96 (Iowa 1992). An accommodation made by an employer is not a relevant factor in determining earning capacity under an industrial disability claim. U.S. West Communications, Inc. v. Overholser, 566 N.W.2d 873, 876 (Iowa 1997).
In denying Kirby's review reopening request, the commissioner found:
Loss of earning capacity, sometimes referred to as industrial disability, is measured by the employee's ability to compete, work and earn in the competitive labor market as a whole. It is not limited to an analysis of any one particular job. It is for that reason that accommodations made by an employer in any one particular job is not a factor in determining the extent of permanent partial disability just as an employer's illegal disability discrimination is not a factor. Cargill, Inc. v. Conley, 620 N.W.2d 496 (Iowa 2000). An employer's accommodation is factored into an industrial disability determination only to the extent that it demonstrates that the worker has discernible earning capacity. If the accommodation is to be given any weight as a discernible factor, the employer must show that the work the employee is performing is not a "make work" type of job that similar work is available in the competitive labor market and that the pay the worker receives is comparable to pay for the similar positions in the competitive labor market. Murillo v. Black Hawk Foundry, 571 N.W.2d 16 (Iowa 1997).
We agree. A subsequent change in earning capacity following an industrial disability award is necessary for successful review-reopening proceedings. Blacksmith, 290 N.W.2d at 350. Employer accommodations are not a factor in determining earning capacity. Overholser, 560 N.W.2d at 876; Thilges v. Snap-On Tools Corp., 528 N.W.2d 614, 617 (Iowa 1995).
In reaching our conclusion we have not ignored the trial court's conclusion that Kirby's original industrial disability award was discounted by Kirby's accommodation employment. Gallardo, 482 N.W.2d at 395-96. It is sufficient to note that we read the commissioner's original appeal decision differently than the trial court and find there was no such discount made by the commissioner. We also agree with these observations made by the commissioner:
A plausible argument can be made now that Dorothy should be considered permanently totally disabled or more disabled than is reflected by an award of 40 percent permanent partial disability. All those arguments, however, were equally available and plausible on June 19, 1997 at the time of the arbitration hearing. While Dorothy had not been compelled to search for other work prior to the arbitration hearing in 1997, the results of the recent work search were clearly predicted an anticipated as evidenced by the comments made in the arbitration decision. A review-reopening proceeding is not the proper vehicle for obtaining relief from what is perceived to be an unsatisfactory low award in an arbitration proceeding.
Kirby has failed to establish the change in circumstances necessary for a successful review-reopening proceeding. We accordingly reverse and remand to the district court for proceedings in conformity with our opinion.