Tim Neal v. Annett Holdings, Inc.

IN THE SUPREME COURT OF IOWA
No. 10–2117
Filed March 2, 2012
TIM NEAL,
Appellant,
vs.
ANNETT HOLDINGS, INC.,
Appellee.
Appeal from the Iowa District Court for Polk County, Karen A.
Romano, Judge.
Workers’ compensation claimant asserts the district court erred in
holding the employer offered “suitable work” under Iowa Code section
85.33(3) (2007). On cross-appeal, employer argues the commissioner’s
industrial disability determination is not supported by substantial
evidence. AFFIRMED IN PART AND REVERSED IN PART.
Christopher D. Spaulding of Berg, Rouse, Spaulding & Schmidt,
P.L.C., Des Moines, for appellants.
Charles A. Blades and Sasha L. Monthei of Scheldrup Blades
Schrock Smith Aranza, PC, Cedar Rapids, for appellee.
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APPEL, Justice.
In this case, we must determine whether the Workers’
Compensation Commissioner (commissioner) erred in concluding that
light duty employment offered to an injured worker was not “suitable
work” under Iowa Code section 85.33(3) (2009) because the offered
employment was located 387 miles from the residence of the worker. We
also must address whether substantial evidence supports the
commissioner’s finding that the employee suffered a sixty percent
industrial disability as a result of an on-the-job injury. The district court
reversed the commissioner’s ruling on the “suitable work” issue, but
affirmed the commissioner’s ruling on industrial disability. For the
reasons expressed below, we reverse the district court on the “suitable
work” issue, but affirm the district court on the issue of industrial
disability.
I. Factual and Procedural Background.
TMC Transportation, a division of Annett Holdings, employed Tim
Neal as an over-the-road flatbed truck driver. In September 2007, Neal
was sent to Michigan to pick up a load of plywood. A forklift driver
loaded Neal’s flatbed with the plywood in three stacks and left tarps on
top of the load. In an effort to secure the tarps, Neal climbed onto the
flatbed and, as he was lifting himself onto the first stack, injured his
shoulder.
An MRI scan of Neal’s shoulder revealed a partial full thickness
tear of the rotator cuff, tendinopathy and thickening of the rotator cuff,
and hypertrophic change of the AC joint. Due to the injury, Neal’s doctor
imposed work restrictions including limitations on the amount of weight
Neal could lift. TMC offered Neal light-duty work in Des Moines, Iowa.
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At the time, Neal resided with his wife and three children in
Grayville, Illinois. Grayville is 387 miles from Des Moines. TMC offered
to provide Neal a motel room while Neal worked in Des Moines. TMC also
stated it would provide Neal transportation costs to allow Neal to return
to Grayville every other weekend. According to Neal, if he were to
participate in TMC’s light-duty program he could return home every
other week to see his family. Before the injury, Neal returned home every
weekend and occasionally during the week.
Neal declined TMC’s offer to perform light-duty work in
Des Moines. As a result, TMC suspended Neal’s workers’ compensation
benefits.
In February 2009, an arbitration hearing was held on Neal’s
workers’ compensation claim. In the arbitration decision, the deputy
commissioner concluded Annett Holdings properly suspended temporary
disability benefits because Neal refused to accept “suitable work” as
defined in Iowa Code section 85.33(3). The deputy commissioner also
concluded Neal experienced a fifteen percent permanent partial
disability.
Neal appealed the arbitration decision. Neal argued Annett
Holdings failed to offer “suitable work” because the work was located 387
miles from Neal’s residence. Neal also challenged the finding of a fifteen
percent permanent partial disability.
On appeal, the commissioner 1 modified the arbitration decision.
Specifically, the commissioner concluded Annett Holdings failed to offer
“suitable work” because the job was located a great distance from Neal’s
1The appeal in this case was decided on behalf of the commissioner by a deputy
commissioner. For the purposes of this proceeding, the decision maker on appeal is
referred to as the commissioner.
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residence. The commissioner observed that Neal could return home only
every other weekend, whereas prior to the injury he could return home
every weekend. The commissioner reasoned a worker should not be
required to uproot and move to a different location, observing that
“[b]eing away from the support of your wife and family, especially while
recovering from a serious work injury, is not an insignificant matter.”
The commissioner also found Neal suffered from a sixty percent
industrial disability. Annett Holdings filed a motion to reconsider, which
the commissioner denied. Annett Holdings petitioned for judicial review.
The district court affirmed in part and reversed in part. The
district court affirmed the commissioner’s finding that Neal suffered a
sixty percent industrial disability. The district court reversed, however,
on the issue of whether Annett Holdings offered suitable work. The
district court stated Iowa Code section 85.33(3) “does not define ‘suitable
work’ in terms of its location; rather, ‘suitable work’ is that which is
‘consistent with the employee’s disability.’ ” Because Annett Holdings
offered light-duty work consistent with Neal’s disability, the district court
concluded that Neal refused suitable work and thus, forfeited his right to
temporary partial, temporary total, and healing period benefits during his
period of refusal. Neal appealed, and Annett Holdings cross-appealed.
II. Standard of Review.
Judicial review of the decisions of the workers’ compensation
commissioner is governed by Iowa Code chapter 17A. Mycogen Seeds v.
Sands, 686 N.W.2d 457, 463 (Iowa 2004). A district court acts in an
appellate capacity when it exercises its judicial review power. Id. When
reviewing a district court’s decision “we apply the standards of chapter
17A to determine whether the conclusions we reach are the same as
5
those of the district court. If they are the same, we affirm; otherwise, we
reverse.” Id. at 464 (citation omitted).
In this case, we are asked to consider whether the commissioner
erred in concluding that Annett Holdings failed to offer suitable work for
purposes of Iowa Code section 85.33(3). To the extent the
commissioner’s decision reflects factual determinations that are “clearly
vested by a provision of law in the discretion of the agency,” we are
bound by the commissioner’s findings of fact if they are supported by
substantial evidence. Schutjer v. Algona Manor Care Ctr., 780 N.W.2d
549, 557 (Iowa 2010) (citation and internal quotation marks omitted);
Meyer v. IBP, Inc., 710 N.W.2d 213, 219 (Iowa 2006). Further, the
commissioner’s application of law to the facts as found by the
commissioner will not be reversed unless it is “irrational, illogical, or
wholly unjustifiable.” Lakeside Casino v. Blue, 743 N.W.2d 169, 173
(Iowa 2007) (citation and internal quotation marks omitted).
The question of whether an employer offered suitable work is
ordinarily a fact issue. See Schutjer, 780 N.W.2d at 557, 559; McCormick
v. N. Star Foods, Inc., 533 N.W.2d 196, 199 (Iowa 1995). Whether the
commissioner considered an improper factor in reaching its factual
determination regarding suitability, however, is a question of law. Cf.
Pac. Mills v. Dir. of Div. of Emp’t Sec., 77 N.E.2d 413, 415 (Mass. 1948).
With respect to questions of law, we have stated that no deference
is given to the commissioner’s interpretation of law because the
“interpretation of the workers’ compensation statutes and related case
law has not been clearly vested by a provision of law in the discretion of
the agency.” Schutjer, 780 N.W.2d at 558 (citation and internal
quotation marks omitted). Shortly after Schutjer, this court decided
Renda v. Iowa Civil Rights Commission, 784 N.W.2d 8 (Iowa 2010), which
6
clarified and refined our approach to determining whether an agency has
been delegated the authority to interpret a statute.
In Renda, we explained that “each case requires a careful look at
the specific language the agency has interpreted as well as the specific
duties and authority given to the agency with respect to enforcing
particular statutes.” Renda, 784 N.W.2d at 13. We give deference to the
agency’s interpretation if the agency has been clearly vested with the
discretionary authority to interpret the specific provision in question. Id.
at 11. If, however, the agency has not been clearly vested with the
discretionary authority to interpret the provision in question, we will
substitute our judgment for that of the agency if we conclude the agency
made an error of law. Id. at 14–15. Deference may be given to an
agency’s interpretation in a specific matter or an interpretation embodied
in an agency rule. Sherwin-Williams Co. v. Iowa Dep’t of Revenue, 789
N.W.2d 417, 422–23 (Iowa 2010). Indications that the legislature has
delegated interpretive authority include “rule-making authority, decision-
making or enforcement authority that requires the agency to interpret
the statutory language, and the agency’s expertise on the subject or on
the term to be interpreted.” Id. at 423.
We conclude the legislature did not vest the authority to interpret
the phrase “suitable work” for purposes of Iowa Code section 85.33(3) in
the workers’ compensation commission. First, the legislature has made
no explicit grant of interpretive authority to the commission. See Renda,
784 N.W.2d at 11. Second, while we recognize Iowa Code section 86.8(1)
creates in the commissioner a duty to “[a]dopt and enforce rules
necessary to implement . . . chapters 85, 85A, 85B, [86,] and 87,” the
mere grant of rulemaking authority does not give an agency authority to
interpret all statutory language. Renda, 784 N.W.2d at 13–14. Third, as
7
discussed below, the concept of “suitable work” is found in similar
contexts, including employment discrimination, wrongful termination,
unemployment compensation, and the odd-lot doctrine. Therefore, we
are not convinced “suitable work” is a specialized phrase within the
expertise of the commissioner; rather, the phrase has a specialized legal
meaning extending beyond the context presented in this case. Id. at 14.
Consequently, we accord no deference to the interpretation of the
commissioner and will substitute our own judgment if we conclude the
commissioner made an error of law. Id. at 14–15; Swiss Colony, Inc. v.
Deutmeyer, 789 N.W.2d 129, 133 (Iowa 2010).
III. Discussion.
A. Suitable Work. Iowa Code section 85.33(3) disqualifies an
employee from receiving temporary partial, temporary total, and healing
period benefits if the employer offers “suitable work” that the employee
refuses. Iowa Code § 85.33(3); Schutjer, 780 N.W.2d at 559. If the
employer fails to offer suitable work, the employee will not be disqualified
from receiving benefits regardless of the employee’s motive for refusing
the unsuitable work. See Schutjer, 780 N.W.2d at 559. We, therefore,
must consider whether Annett Holdings offered Neal suitable work for
purposes of Iowa Code section 85.33(3).
When interpreting a statute, we will not look beyond the express
terms of the statute if the text of the statute is plain and its meaning
clear. State v. Tesch, 704 N.W.2d 440, 451 (Iowa 2005). When the words
of a statute are not defined by the legislature, we may refer to “prior
decisions of this court and others, similar statutes, dictionary definitions,
and common usage.” Gardin v. Long Beach Mortg. Co., 661 N.W.2d 193,
197 (Iowa 2003); Bernau v. Iowa Dep’t of Transp., 580 N.W.2d 757, 761
(Iowa 1998). Iowa Code section 85.33(3) provides:
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3. If an employee is temporarily, partially disabled and
the employer for whom the employee was working at the time
of injury offers to the employee suitable work consistent with
the employee’s disability the employee shall accept the
suitable work, and be compensated with temporary partial
benefits. If the employee refuses to accept the suitable work
with the same employer, the employee shall not be
compensated with temporary partial, temporary total, or
healing period benefits during the period of the refusal. If
suitable work is not offered by the employer for whom the
employee was working at the time of the injury and the
employee who is temporarily partially disabled elects to
perform work with a different employer, the employee shall
be compensated with temporary partial benefits.
Iowa Code § 85.33(3). The district court looked no further than this
section because, in its view, “suitable work” is defined in the statute as
work that is “consistent with the employee’s disability.”
We begin our analysis of the statute by considering whether the
phrase “consistent with the employer’s disability” provides a definition of
the phrase “suitable work” in the statute. We conclude that it does not.
The language of the statute requires that the work offered to an injured
worker must be both “suitable” and “consistent with the employee’s
disability” before the employee’s refusal to accept such work will
disqualify him from receiving temporary partial, temporary total, and
healing period benefits. See id. Otherwise, the modifier “suitable” would
have no meaning and would be mere surplusage. In interpreting a
statute, “each term is to be given effect,” Miller v. Marshall Cnty., 641
N.W.2d 742, 749 (Iowa 2002), and we “will not read a statute so that any
provision will be rendered superfluous,” Thoms v. Iowa Pub. Employees’
Ret. Sys., 715 N.W.2d 7, 15 (Iowa 2006). See also State v. Osmundson,
546 N.W.2d 907, 910 (Iowa 1996); 2A Norman J. Singer & J.D. Shambie
Singer, Statutes and Statutory Construction § 46:6, at 230 (7th ed. 2007)
(“It is an elementary rule of construction that effect must be given, if
9
possible, to every word, clause and sentence of a statute.” (citation and
internal quotation marks omitted)).
We thus conclude that the phrase “consistent with the employee’s
disability” modifies “suitable work.” The phrase “suitable work,”
however, is not defined in the statute. We must breathe some life into
this phrase in order to resolve the question of whether the commissioner
erred in determining that the offer of light-duty employment in this case
was insufficient to cut off receipt of temporary workers’ compensation
benefits under the statute.
We begin our effort to understand the meaning of the phrase
“suitable work” by looking at the workers’ compensation statutes in other
states. Some states expressly require a consideration of the location of
available work in determining an employee’s eligibility for workers’
compensation benefits. See, e.g., Nev. Rev. Stat. Ann. 616C.475(8)(a)
(West, Westlaw through 2009 75th Reg. Sess. & 2010 26th Special
Sess.); Or. Rev. Stat. Ann. § 656.268(4)(c)(A)–(B) (West, Westlaw through
2011 Reg. Sess.); see also La. Rev. Stat. Ann. § 23:1221(3)(c)(i) (West,
Westlaw through 2011 1st Extraordinary & Reg. Sess.); Mich. Comp.
Laws Ann. § 418.301(9)(a), (11) (West, Westlaw through P.A. 2012, No. 4,
of the 2012 Reg. Sess.). Nevada, for instance, requires an offer of
temporary, light-duty employment to be “substantially similar to the
employee’s position at the time of his or her injury in relation to the
location of the employment.” Nev. Rev. Stat. Ann. 616C.475(8).
Similarly, Oregon allows an employee to refuse an offer of modified
employment if the offer “[r]equires a commute that is beyond the physical
capacity of the worker” or is at a “work site more than [fifty] miles one
way from where the worker was injured.” Or. Rev. Stat. Ann.
§ 656.268(4)(c)(A)–(B). Further, Michigan precludes an employee from
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receiving wage-loss benefits if the employee receives and refuses a “bona
fide offer of reasonable employment.” Mich. Comp. Laws Ann.
§ 418.301(9)(a). The statute states “reasonable employment” means work
that is “within a reasonable distance from [the] employee’s residence.”
Id. § 418.301(11). Courts in these jurisdictions have little difficulty
construing their statutes to include geographic location as a factor to be
considered in determining whether an employee is eligible for certain
workers’ compensation benefits. See, e.g., Jones-Jennings v. Hutzel
Hosp., 565 N.W.2d 680, 686 (Mich. Ct. App. 1997); Amazon.com v.
Magee, 119 P.3d 732, 735 (Nev. 2005); see also Caparotti v. Shreveport
Pirates Football Club, 768 So. 2d 186, 191 (La. Ct. App. 2000).
A number of state workers’ compensation statutes, while not
expressly requiring a consideration of location, provide that refusal of
suitable employment does not disqualify a claimant if the refusal is
“justifiable” or “reasonable.” See, e.g., Ala. Code § 25-5-57(a)(3)(e) (West,
Westlaw through 2011 Reg. Sess.); Ark. Code Ann. § 11-9-526 (West,
Westlaw through 2011 Reg. Sess.); Fla. Stat. Ann. § 440.15(6) (West,
Westlaw through Feb. 16, 2012 of the 2012 2nd Reg. Sess.); Ga. Code
Ann. § 34-9-240(a) (West, Westlaw through 2011 Reg. & Special Sess.);
Ind. Code Ann. § 22-3-3-11(a) (West, Westlaw through 1st Reg. Sess.);
N.C. Gen. Stat. Ann. § 97-32 (West, Westlaw through S.L. 2012-1 of the
2011 Reg. Sess.); N.D. Cent. Code Ann. 65-05-08(7) (West, Westlaw
through 2011 Reg. Sess. & Special Sess.); Tenn. Code Ann. § 50-6-
207(3)(D) (West, Westlaw through 2011 1st Reg. Sess.); Va. Code Ann.
§ 65.2-510(A) (West, Westlaw through 2011 Reg. Sess.). In Georgia, for
example, an employee who “refuses employment procured for him or her
and suitable to his or her capacity” is not entitled to benefits unless the
refusal was justified. Ga. Code Ann. § 34-9-240(a). The Georgia
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Supreme Court addressed what it meant for a refusal to be justified in
City of Adel v. Wise, 401 S.E.2d 522 (Ga. 1991). The court explained a
refusal to accept work is justified if the employee would be required to
relocate from his or her home. Wise, 401 S.E.2d at 525. Thus, the court
concluded, “factors such as geographic relocation or travel conditions
which would disrupt an employee’s life” are to be considered when
determining whether an employee justifiably refused work. Id.; see also
Counts v. Acco Babcock, Inc., No. 135, 1988 WL 81394, at *1 (Del. 1988)
(holding claimant, a resident of Delaware, was not required to relocate
and to accept offer of employment in Pennsylvania).
In other jurisdictions, courts have held, in the absence of
legislative direction, that the distance of available work may be
considered in determining the employee’s eligibility for workers’
compensation benefits. In Joyner v. District of Columbia Department of
Employment Services, 502 A.2d 1027 (D.C. 1986), the court interpreted a
statute providing the following:
If the employee voluntarily limits his income or fails to
accept employment commensurate with his abilities, then
his wages after becoming disabled shall be deemed to be the
amount he would earn if he did not voluntarily limit his
income or did accept employment commensurate with his
abilities.
Joyner, 502 A.2d at 1029 (quoting D.C. Code § 36-308(c) (1981),
currently § 32-1508(3)(V)(iii) (West, Westlaw through Jan. 11, 2012)).
The Joyner court observed that the statute does not expressly address
“where ‘employment commensurate with [the claimant’s] abilities’ must
be located to be relevant to determining whether a claimant has
voluntarily limited her income or failed to accept such employment.”
Joyner, 502 A.2d at 1030 (quoting D.C. Code § 36-308(c)). The Joyner
court, however, upheld an agency decision declaring that the District of
12
Columbia served as the relevant labor market for determining whether
an employee disqualified himself or herself from benefits. Id. Although
Joyner is not a case involving temporary disability benefits, it does stand
for the broader proposition that geographic location may be considered in
determining whether the availability of employment cuts off statutory
workers’ compensation benefits. See also Shah v. Howard Johnson, 535
S.E.2d 577, 583 (N.C. Ct. App. 2000) (stating “it seems obvious that
suitable employment for a person would normally be located within a
reasonable commuting distance of that person’s home”).
Pennsylvania has also allowed a consideration of the distance of
work in determining a claimant’s eligibility for workers’ compensation
benefits in the absence of legislative direction. In Kachinski v. W.C.A.B.,
532 A.2d 374 (Pa. 1987), the Pennsylvania Supreme Court, in the
absence of a statute, required suitable work to be “actually availab[le]” in
order for a modification of benefits to be effected. Kachinski, 532 A.2d at
379, superseded by statute, 77 Pa. Cons. Stat. Ann. § 512 (1996), as
recognized in Bufford v. W.C.A.B., 2 A.3d 548, 553 n.3 (Pa. 2010). The
Pennsylvania Commonwealth Court interpreted this availability
requirement in Goodwill Industries of Pittsburgh v. W.C.A.B., 631 A.2d
794 (Pa. Commw. Ct. 1993).
In Goodwill, the court addressed whether a twenty-hour per week,
light-duty job located thirty miles from the claimant’s home was
unavailable to the claimant because it was located outside the claimant’s
geographic area. Goodwill Indus. of Pittsburgh, 631 A.2d at 795. The
Goodwill court held the job was unavailable because the claimant would
have been required to commute three hours by bus. Id. at 796. The
court explained that “cases involving relatively long commutes and
relatively short work days must be examined on their individual fact
13
patterns as deemed appropriate for a reasonable person in the position of
the claimant.” Id.; see also Combs v. Kelly Logging, 769 P.2d 572, 574
(Idaho 1989) (“It is well established, even without legislative statutory
direction, that a worker who sustains an industrial accident is not
required to move from his or her home to find suitable work in order to
be eligible for worker’s compensation.”); Dilkus v. W.C.A.B., 671 A.2d
1135, 1139 (Pa. 1996) (examining claimant’s residence or geographic
area in determining availability of a position); Yellow Freight Sys., Inc. v.
W.C.A.B., 377 A.2d 1304, 1306 (Pa. Commw. Ct. 1977) (same).
In short, it is clear that geographic proximity is commonly
considered as a relevant factor in workers’ compensation statutes.
Moreover, Joyner, Kachinski, and Goodwill are substantial authority for
the proposition that geographic location is an appropriate consideration
in determining whether the availability of other employment is a basis for
termination of workers’ compensation benefits under state statutes that
are silent on the issue. The law is sufficiently developed in this regard
that a leading treatise on workers’ compensation issues states that “[t]he
suitability of a job . . . refers to the employee’s physical capacity or ability
to perform the job, or to factors such as geographic relocation or travel
conditions that would disrupt the employee’s life.” 2 Modern Workers
Compensation § 200.32 (Westlaw 2012).
In addition to these statutes and cases involving workers’
compensation benefits, analogy may be drawn from other areas of
employment law. For example, with respect to unemployment
compensation, Iowa Code section 96.5(3) states that an individual is
disqualified from receiving unemployment benefits “[i]f the department
finds that an individual has failed, without good cause, either to apply for
available, suitable work when directed by the department or to accept
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suitable work when offered that individual.” Iowa Code § 96.5(3).
Section 96.5(3) goes on to provide:
a. (1) In determining whether or not any work is
suitable for an individual, the department shall consider the
degree of risk involved to the individual’s health, safety, and
morals, the individual’s physical fitness, prior training,
length of unemployment, and prospects for securing local
work in the individual’s customary occupation, the distance
of the available work from the individual’s residence, and
any other factor which the department finds bears a
reasonable relation to the purposes of this paragraph.
Iowa Code § 96.5(3)(a)(1); Iowa Admin. Code r. 871—24.24(15)(g) (“In
determining what constitutes suitable work, the department shall
consider, among other relevant factors . . . [d]istance from the available
work.”); see also Arthur M. Menard, Refusal of Suitable Work, 55 Yale
L.J. 134, 147 (1945) (noting suitability in context of unemployment
compensation “is a relative matter in which the effect of the work upon
the claimant and his normal economic activity and activity in society
should be considered”). Professor Larson has noted the validity of the
analogy between unemployment and workers’ compensation benefits on
the issue of suitability, noting, “While there are not as many workers’
compensation cases [on the issue of suitability of employment], they
seem to resemble in general effect the more numerous unemployment
compensation cases on the same point.” 4 Arthur Larson & Lex K.
Larson, Larson’s Workers’ Compensation Law § 85.01, at 85-1 (2000).
Further, in employment discrimination cases, an employer can
meet its burden of establishing the plaintiff failed to mitigate damages by
showing (1) the availability of suitable jobs that the employee could have
discovered and for which the employee was qualified, and (2) that the
employee failed to seek such a position with reasonable care and
diligence. Sias v. City Demonstration Agency, 588 F.2d 692, 696 (9th Cir.
15
1978). In Spagnuolo v. Whirlpool Corp., 717 F.2d 114, 119 (4th Cir.
1983), the Fourth Circuit observed: “The long-settled rule in the labor
area is that a wrongfully discharged employee need not accept, in
mitigation of damages, employment that is located an unreasonable
distance from his home.” See also Frye v. Memphis State Univ., 806
S.W.2d 170, 173 (Tenn. 1991) (stating a wrongfully terminated employee
need not “abandon his home or place of residence to seek other
employment” to mitigate damages).
The Restatement (Second) of Agency takes a similar approach. If
an employer discharges an agent in violation of the contract of
employment, the agent cannot recover for damages he could have
avoided by exercising due diligence. Restatement (Second) of Agency
§ 455 cmt. d, at 373 (1958). The comments of section 455 explain that a
wrongfully discharged agent is not “necessarily obliged to accept
employment at a distance from his home.” Id. The Restatement provides
the following illustration:
3. P employs A, who is married, for a period of a year
as a traveling salesman to cover New England, with
headquarters at Boston. At the end of one month, without
cause, P dismisses A. A is offered a position with another
responsible house for the same territory but with
headquarters in New York. It is a question for the triers of
fact to determine whether or not in view of all the
circumstances, including the social interests of A and his
wife, A’s damages are diminished by the amount which he
would have received had he accepted the New York offer.
Id. § 455 illus. 3, at 373–74. As one can see, the Restatement allows the
trier of fact to consider the distance of employment from one’s home in
determining whether the agent suffered damages he could have avoided.
See id.; see also Hilgendorf v. Hague, 293 N.W.2d 272, 276–77 (Iowa
1980) (citing Restatement (Second) of Agency section 455 with approval).
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We have applied the generally recognized geographic concept in
employment law in other workers’ compensation settings. For instance,
in Guyton v. Irving Jenson Co., 373 N.W.2d 101, 105 (Iowa 1985), we
recognized the “odd-lot doctrine.” Under the doctrine, an employee is
considered to have suffered total disability if the worker can only perform
work “so limited in quality, dependability, or quantity that a reasonably
stable market for them does not exist.” Guyton, 373 N.W.2d at 105
(citation and internal quotation marks omitted). In Guyton, we
explained:
[W]hen a worker makes a prima facie case of total disability
by producing substantial evidence that the worker is not
employable in the competitive labor market, the burden to
produce evidence of suitable employment shifts to the
employer. If the employer fails to produce such evidence and
the trier of fact finds the worker does fall in the odd-lot
category, the worker is entitled to a finding of total disability.
Id. at 106 (emphasis added). “Simply put,” we observed in Second Injury
Fund of Iowa v. Shank, 516 N.W.2d 808, 815 (Iowa 1994), “the question
is this: Are there jobs in the community that the employee can do for
which the employee can realistically compete?” For purposes of the odd-
lot doctrine, then, we have held that an employee need not look for a
position outside the employee’s “competitive labor market” to establish
he suffers a total disability. Id.; see also See v. Wash. Metro. Area Transit
Auth., 36 F.3d 375, 381 (4th Cir. 1994) (stating “it is by now well-
established that, in order to defeat a claim for benefits as a result of an
alleged permanent total disability, the burden is on the employer to prove
the existence of a suitable job presently available to the claimant in the
community in which he lives” (citation and internal quotation marks
omitted)); New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031,
1042 (5th Cir. 1981) (holding “job availability” should consider whether
17
there are “jobs reasonably available in the community for which the
claimant is able to compete”). In light of the decisions of other courts
addressing similar issues, analogous statutes, and prior decisions of this
court, we conclude the commissioner may consider distance of available
work from the claimant’s home in determining whether an employer has
offered “suitable work” for purposes of Iowa Code section 85.33(3).
Given our holding on the legal issue of whether geographic
proximity is a factor to be considered, we now turn to the question of
whether the commissioner’s factual decision that the proffered
employment was not suitable is supported by substantial evidence. 2 We
acknowledge that the evidence in the record could have led a reasonable
fact finder to come to a conclusion different than that reached by the
commission. The issue before us, however, is not whether the employer
had a substantial basis for asserting the offered job was, in fact,
“suitable.” The question is whether the determination of the
commissioner should be affirmed.
2While there is ample authority on the general issue that geographic proximity
should be a factor in evaluating the “suitability” of employment offered by employers,
there is little caselaw applying this general principle where an agency entitled to
substantial deference in fact finding determines that an offered job is not suitable with
a record similar to that developed in this case. While the dissent has found a lower
court opinion from Pennsylvania in the general subject area, Trout v. W.C.A.B., 836 A.2d
178 (Pa. Commw. Ct. 2003), this case is not on point. In Trout, the court found that the
final decision of the workers’ compensation authorities denying benefits could not be
affirmed as a matter of law. Trout, 836 A.2d at 183–85. Footnote twelve of the opinion
states that if the offer of employment is “within the geographic area where others in the
same community as Claimant would accept employment, the claimant’s preference is
irrelevant, and the job is available geographically.” Id. at 184 n.12. Various cases are
cited in support of the proposition that the final workers’ compensation decision
denying benefits was so far out of bounds that it could not be affirmed as a matter of
law. See id. Trout, which establishes under Pennsylvania law the outer boundaries of
agency discretion in denying a claim, cannot be turned upside down and used as
authority to establish the inner boundary of agency discretion where the agency sides
with the employee and affirms the claim.
18
We conclude that the commissioner committed no legal error and
that substantial evidence supports the commissioner on the issue. The
distance between the proffered work and Neal’s residence was 387 miles.
Although Neal was an over-the-road truck driver, which often required
him to spend extended periods of time away from home, Neal testified
that before the injury he ordinarily spent each weekend at home with his
wife and three children, and occasionally he returned home during the
week. Had Neal accepted the work in Des Moines, he would have only
been able to return home every other weekend—cutting his time at home
in half. As observed by the commissioner, “Being away from the support
of your wife and family, especially while recovering from a serious work
injury, is not an insignificant matter.” Further, there is no evidence in
the record establishing that Neal agreed as a condition of employment to
any relocation that Annett Holdings might require. See Serwetnyk v.
USAir, Inc., 671 N.Y.S.2d 537, 538 (App. Div. 1998). Based on the
evidence, we are satisfied substantial evidence supports the
commissioner’s findings of fact. See Litzinger v. W.C.A.B., 731 A.2d 258,
262–63 (Pa. Commw. Ct. 1999) (holding as a matter of law that light-duty
work offered to former over-the-road truck driver was “totally
unreasonable” when work was located 116 miles away from claimant’s
residence even though the employer offered to provide a motel room).
B. Permanent Partial Disability Benefits. In its cross-appeal,
Annett Holdings argues the district court erred in upholding the
commissioner’s finding that Neal suffered a sixty percent permanent
partial disability. The question is a mixed one of law and fact. Larson
Mfg. Co., Inc. v. Thorson, 763 N.W.2d 842, 856 (Iowa 2009). In reviewing
an agency’s finding of fact for substantial evidence, courts must engage
in a “fairly intensive review of the record to ensure that the fact finding is
19
itself reasonable.” Wal-Mart Stores, Inc. v. Caselman, 657 N.W.2d 493,
499 (Iowa 2003). We do not, however, engage in a scrutinizing analysis,
“for, if we trench in the lightest degree upon the prerogatives of the
commission, one encroachment will breed another, until finally simplicity
will give way to complexity, and informality to technicality.” Midwest
Ambulance Serv. v. Ruud, 754 N.W.2d 860, 866 (Iowa 2008) (citation and
internal quotation marks omitted).
In our fairly intensive review, we view the record as a whole, which
includes a consideration of evidence supporting the challenged finding as
well as evidence detracting from it. Iowa Code § 17A.19(10)(f)(3); Dawson
v. Iowa Bd. of Med. Exam’rs, 654 N.W.2d 514, 518 (Iowa 2002). Evidence
is not insubstantial merely because a contrary inference is supported by
the record. Missman v. Iowa Dep’t of Transp., 653 N.W.2d 363, 367 (Iowa
2002). Because the challenge to the agency’s industrial disability
determination challenges the agency’s application of law to facts, we will
not disrupt the agency’s decision unless it is “irrational, illogical, or
wholly unjustifiable.” Larson Mfg. Co., Inc., 763 N.W.2d at 857.
An employee who suffers a “permanent disability” is entitled to
compensation. Iowa Code § 85.34. The amount of compensation for an
unscheduled injury resulting in permanent partial disability is based on
the employee’s earning capacity. Broadlawns Med. Ctr. v. Sanders, 792
N.W.2d 302, 306 (Iowa 2010). Earning capacity is determined by an
evaluation of several factors, including “functional disability . . . age,
education, qualifications, experience, and inability to engage in similar
employment.” Deutmeyer, 789 N.W.2d at 137–38 (citation and internal
quotation marks omitted). Personal characteristics of the employee that
affect employability may be considered. Ehlinger v. State, 237 N.W.2d
784, 792 (Iowa 1976). In determining industrial disability, the
20
commissioner “is not required to fix disability with precise accuracy.”
Myers v. F.C.A. Servs., Inc., 592 N.W.2d 354, 357 (Iowa 1999); see Klein
v. Furnas Elec. Co., 384 N.W.2d 370, 374 (Iowa 1986) (observing in some
cases it is impossible to determine extent of industrial disability with
precise accuracy).
The commissioner found Neal to have suffered a sixty percent
industrial disability. The commissioner explained:
Claimant is 47 years old. His age would make
retraining difficult. Although Neal has minor residual
discomfort, his loss of lifting capacity and formal impairment
ratings show that he has quite significant industrial loss. He
is unable to return to flatbed truck driving, the type of work
for which he is best suited given his work history. He cannot
return to any driving duties that would require heavy or
medium lifting. His limitations prevent a return to
construction, other than as a non-working supervisor.
Considering all factors of industrial disability as set forth
above, it is found that as a result of the injury sustained
September 13, 2007, Tim Neal has experienced diminution of
earning capacity of sixty percent (60%).
Substantial evidence supports these findings of fact.
We have previously held the age of forty-seven is a factor that the
commissioner may consider in finding industrial disability. See Trade
Prof’ls, Inc. v. Shriver, 661 N.W.2d 119, 123 (Iowa 2003) (noting
claimant’s age of forty-seven in concluding substantial evidence
supported the commissioner’s findings); see also Second Injury Fund of
Iowa v. Nelson, 544 N.W.2d 258, 266 (Iowa 1995) (reasoning age of sixty
consistent with greater disability); Diederich v. Tri-City Ry., 219 Iowa 587,
594, 258 N.W. 899, 902 (1935) (stating it would be difficult for a fifty-
nine-year-old person to find employment in a new field). The
commissioner did not error in considering age to be a factor in this case.
As pointed out by the commissioner, Neal has limited education.
The commissioner could properly consider his high school education and
21
lack of specialized training as a factor that could lessen his earning
ability. Deutmeyer, 789 N.W.2d at 138 (reasoning that lack of post-high
school education was a factor supporting sixty percent industrial
disability).
Neal’s absence from work during the healing period is a factor that
could affect employability. A reasonable commissioner could conclude
that many months absence from the job could be looked at with
skepticism by potential employers.
There is evidence in the record tending to show that Neal is less
competitive in the employment market because of his permanent
injuries. Neal drove a flatbed truck for a number of years prior to his
injury, but he can no longer drive a flatbed truck because he would be
required to perform lifting beyond his postinjury abilities. A Functional
Capacity Evaluation report, which concluded Neal’s “physical capabilities
and tolerances to function between the Light-Medium and Medium
Categories of work,” supports the commissioner’s finding in this regard.
Neal has medical restrictions on what he can lift. Neal also explained
that, although he worked in construction before the injury, his postinjury
physical limitations preclude him from engaging in any construction
except as a nonworking supervisor.
There is, of course, countervailing evidence in the record. For
example, evidence in the record tends to indicate that Neal may be able
to continue his career as a truck driver, albeit not as a flatbed truck
driver, within his physical restrictions. Nevertheless, earning capacity
contemplates more than a determination of what the employee “can or
cannot do.” Shank, 516 N.W.2d at 815 (citation and internal quotation
marks omitted). The inquiry requires a consideration of the employee’s
actual employability, namely, the extent to which jobs are available for
22
which Neal can realistically compete as a forty-seven year old, high-
school educated person with work experience generally limited to truck
driving, construction, and oil pumping when he suffers from a functional
impairment of the upper extremity that restricts his employability to
light-medium and medium categories of work. See id. Also, factual
findings are not insubstantial merely because evidence supports a
different conclusion or because we may have reached a different
conclusion. See Arndt v. City of Le Claire, 728 N.W.2d 389, 393 (Iowa
2007); Missman, 653 N.W.2d at 367. Further, in considering findings of
industrial disability, we recognize that the commissioner is routinely
called upon to make such assessments and has a special expertise in the
area that is entitled to respect by a reviewing court. See Lithcote Co. v.
Ballenger, 471 N.W.2d 64, 68 (Iowa Ct. App. 1991).
The question before us is whether the evidence supports the
findings the commissioner actually made. Terwilliger v. Snap-On Tools
Corp., 529 N.W.2d 267, 271 (Iowa 1995). We conclude that it does. We
also conclude the commissioner’s application of these facts to the law is
not irrational, illogical, or wholly unjustifiable.
IV. Conclusion.
For the reasons expressed above, we conclude the commissioner
did not err in finding Annett Holdings failed to offer Neal suitable work
for purposes of Iowa Code section 85.33(3). We also hold the
commissioner’s findings of fact with respect to the extent of Neal’s
industrial disability are supported by substantial evidence and the
commissioner’s application of those facts in holding Neal suffered a sixty
percent industrial disability is not irrational, illogical, or wholly
23
unjustifiable. We, therefore, reverse the judgment of the district court in
part and affirm in part.
AFFIRMED IN PART AND REVERSED IN PART.
All justices concur except Cady, C.J., Waterman and Mansfield,
JJ., who dissent.
24
#10–2117, Neal v. Annett
MANSFIELD, Justice (dissenting).
I respectfully dissent. In my view, the commissioner has
misapplied the law to invalidate a seemingly reasonable temporary
rehabilitation and light-duty work program. That program appears well-
designed to serve the needs of both an Iowa employer and its employees.
Additionally, I see no basis for the commissioner’s factual finding that a
truck driver who has lifting restrictions but can still obtain and perform
work as a truck driver has suffered a sixty percent loss of earning
capacity. For these reasons, I would reverse and remand.
I. Background.
Tim Neal, a forty-seven-year-old high school graduate who lives in
southeast Illinois close to the Indiana state line, was employed by the
TMC division of Annett Holdings as an over-the-road flatbed truck driver.
Although Neal’s driving duties took him far from home, he was able to
return home on weekends. On September 13, 2007, while climbing onto
a load of plywood lumber to secure a tarpaulin in southern Michigan,
Neal sustained an injury to his right shoulder. He was put on certain
medical restrictions and was then off work from September 14 until the
beginning of October 2007.
During that time, Annett offered light-duty work that would meet
Neal’s medical restrictions at TMC’s headquarters in Des Moines, Iowa.
Annett owns a motel there and has a regular rehabilitation/light-duty
work program for its drivers. As described by the commissioner:
Annett Holdings maintains a regular physical therapist for
on-site therapy, and the motel features a fitness room,
examination room, and swimming pool. Drivers performing
light duty work are furnished transportation home every
other weekend; travel time does not count as weekend time.
25
Thus, under Annett’s program, employees are provided
transportation home at the employer’s expense every other weekend,
with the travel time not counting against their weekend time. Employees
have the option of traveling home on the other weekends, but must do so
at their own expense.
Neal initially agreed to go to Des Moines for the light-duty program.
He was going to be picked up over the weekend and driven to Des
Moines, but claims there was a “misunderstanding” because the driver
called his cell phone rather than his home phone and his cell phone has
a dead spot at home. Neal admits he never tried to contact his employer
when his ride did not show up. He also admits he refused an offer of
another ride to get to Des Moines. Instead, Neal went to his doctor and
obtained a full release so he could return to his former job of truck
driving. He performed those duties once again from early October 2007
until he had arthroscopic shoulder surgery in March 2008.
Following surgery, Neal was again offered light-duty work in Des
Moines and again declined. Neal said that one of his assignments would
have involved checking TMC trucks for possible safety issues, and he
considered that being a “snitch.” Neal also said that he wouldn’t be able
to see his family as much and offered several other reasons for not
undertaking the light-duty job. As summarized by the commissioner,
“Neal’s reasons for refusing light duty work in Des Moines in March 2008
are also multiple and unclear.” 3
Neal had a second arthroscopic shoulder surgery in June 2008.
He remained off work after that. The commissioner subsequently found
3Neal admitted at one point he would prefer to be home at night with his new
family, including his wife (a full-time nurse) and their eighteen-month-old child. He
said that he didn’t “want to go on the road anymore.”
26
that Neal attained maximum medical improvement in November 2008.
In January 2009, Neal was released by his own physician to return to
work with restrictions of no lifting over forty pounds from floor to waist,
no lifting over fifteen pounds from floor to overhead, and no repetitive
lifting of lesser weight with the right arm. Neal has a full range of motion
in that arm. According to Neal’s own testimony, the surgery was
successful, he could perform all of his day-to-day functions with his right
arm, and he could do a full 360 degree windmill with his right arm. As of
the hearing in February 2009, Neal had not yet obtained new
employment, although he had just begun looking.
In addition to truck driving, Neal has prior work experience in
construction and as an oil field pumper. Neal admitted that he could
return to oil field work or truck driving, just not flatbed truck driving. He
also admitted there are many truck driving positions out there that do
not involve flatbeds.
The two issues in the case are whether the light-duty job that Neal
refused to perform during the healing period was “suitable work,” and
whether substantial evidence supports a finding that Neal now has a
sixty percent industrial disability.
The deputy who heard the hearing testimony found that Neal had
been offered “suitable work” and that he had a fifteen percent industrial
disability. Neal timely appealed the arbitration decision. In his appeal
decision, the commissioner adopted the deputy’s factual findings for the
most part but modified his conclusions on these two key points. 4
4The commissioner delegated the authority to decide the appeal to another
deputy.
27
On the suitable work issue, the commissioner cited only one
reason why the offered light-duty work was not suitable—because Neal
would be home every other weekend rather than every weekend.
Regarding Neal’s degree of disability, the commissioner added
several observations while increasing the disability percentage from
fifteen to sixty percent. On that score, the deputy had written:
Although Neal has minor residual discomfort, his loss of
lifting capacity and formal impairment ratings show that he
has actual industrial loss. He could continue to drive over-
the-road, but realistically wishes to avoid flatbed trucks with
attendant tarping duties. Neal could well still function as a
construction supervisor, but probably not as a construction
carpenter. Considering all factors of industrial disability as
set forth above, it is found that as a result of the injury
sustained September 13, 2007, Tim Neal has experienced
diminution of earning capacity on the order of 15 percent of
the body as a whole, or the equivalent of 75 weeks of
permanent partial disability.
The commissioner concluded as follows:
Claimant is 47 years old. His age would make retraining
difficult. Although Neal has minor residual discomfort, his
loss of lifting capacity and formal impairment ratings show
that he has quite significant industrial loss. He is unable to
return to flatbed truck driving, the type of work for which he is
best suited given his work history. He cannot return to any
driving duties that would require heavy or medium lifting. His
limitations prevent a return to construction, other than as a
non-working supervisor. Considering all factors of industrial
disability as set forth above, it is found that as a result of the
injury sustained September 13, 2007, Tim Neal has
experienced diminution of earning capacity of sixty percent
(60%). This entitles claimant to 300 weeks of permanent
partial disability benefits commencing on November 9, 2008.
(Emphasis added to show modifications of the deputy’s findings.)
Nonetheless, the commissioner, like the deputy, did not question
Neal’s ability to work as a nonflatbed truck driver. He reiterated the
deputy’s findings that Neal “thinks he can work as a truck driver, but not
flatbed trucks, due to the necessity to climb loads to secure tarpaulins.
28
He has generally good use of the right arm, but has problems lifting
heavy items or lifting his arm above shoulder level.”
Annett petitioned for judicial review of the commissioner’s award.
The district court reversed the commissioner on the “suitable work”
issue, but sustained his finding of sixty percent industrial disability.
II. The “Suitable Work” Issue.
This case initially presents the question whether an over-the-road
trucking company can offer a rehabilitation/light-duty work program
from a centralized location. Although this issue has not been litigated
before, it is important nonetheless. Iowa has many trucking companies
and truckers—they are a vital part of our economy and our workforce. At
the same time, the workforce of those companies may be scattered in
different locales.
Unfortunately, the commissioner, the district court, and to some
extent my colleagues in the majority all take an unduly formalistic
approach to this issue. Without addressing the specific circumstances of
this case, the commissioner simply decided that an employee who is
rehabilitating from a workplace injury should not be expected to spend
any increased amount of time away from home, even on a temporary
basis. This approach makes it difficult to have a centralized program. It
also disregards the specific facts of this case, where the employee was an
over-the-road trucker whose work already took him overnight away from
home, except on weekends.
On the other hand, the district court—in my view—went too far in
the opposite direction. The district court said that any work should be
deemed “suitable” if it is “consistent with the employee’s disability.” See
Iowa Code § 85.33(3) (2009). This is too narrow a construction of the
word “suitable.” The statute reads: “suitable work consistent with the
29
employee’s disability.” By using this phrasing, I believe the legislature
has made it a necessary, but not sufficient, condition that the work be
consistent with the employee’s disability. If the two modifiers “suitable”
and “consistent with the employee’s disability” meant the same thing,
there would be no need to include both of them. See Iowa Code § 4.4(2)
(setting forth a presumption that the entire statute is intended to be
effective).
The foregoing reading of the law also makes sense. Geography
should be relevant. It would be unrealistic and unfair to expect an
employee to commute hundreds of miles a day, for example, to go to a
temporary light-duty work assignment.
But the majority’s approach is also too formalistic. The majority
cites a raft of precedents. Yet all of them involve situations where the
employee would have to undergo a lengthy daily commute or move
permanently elsewhere. See, e.g., Litzinger v. W.C.A.B., 731 A.2d 258,
262–63 (Pa. Commw. Ct. 1999) (holding it was unreasonable to require a
former over-the-road truck driver to accept a $5.00 per hour permanent
light-duty work assignment that would either result in a daily commute
of 116 miles each way or require him to move permanently into an
employer-provided motel). Those cases are not on point. Neal was not
asked to do those things. To the contrary, Annett’s program, as
described in the record, strikes me at first blush as a reasonable way to
accommodate the needs of a trucking company and an over-the-road
trucker during the temporary period where the trucker is recovering from
a workplace injury. 5
5The majority relies on a number of unemployment insurance cases. Those
cases involve situations where the employee was being required to take a new
permanent job in a different community. That is a very different circumstance from the
present.
30
I wholeheartedly agree with the majority that “geographic proximity
is a factor to be considered.” At the same time, it is not the same kind of
factor in every employment context. By lumping together many
disparate cases, which involve everything from mitigation of damages to
permanent disability to unemployment compensation, my colleagues in
the majority oversimplify the inquiry. Geography has a different
significance in different situations. I would hold that “suitable work” for
purposes of Iowa Code section 85.33(3) may require the employee to
travel temporarily so long as the work is offered in good faith to meet the
needs of the company and the travel is at the employer’s expense.
Another Pennsylvania decision illustrates this more nuanced
approach. See Trout v. W.C.A.B., 836 A.2d 178 (Pa. Commw. Ct. 2003).
In Trout, the employee—a truck driver—sustained a knee injury in the
course of employment. Id. at 179. The employer offered her light-duty
work. Id. For a while, she worked as a traveling field recruiter, was
provided a company vehicle, and was required to visit truck stops within
a 100 to 150-mile radius of her home. Id. This meant that the employee
on occasion had to stay away from home for several nights. Id. at n. 3.
This arrangement nonetheless was deemed by the court to be “suitable”
work. Id. at 184 n. 12. However, after a time, the employer told the
employee she would be required to work permanently out of an office 150
miles away. Id. at 180. This meant the employee would have to
commute 300 miles a day. Id. The court found the new light-duty job
did not constitute suitable and available work within the meaning of
Pennsylvania workers’ compensation law. Id. at 184–85. I agree with
this approach and with the Pennsylvania court’s distinction between the
two assignments.
31
I would reverse and remand for the commissioner to apply the
foregoing standard. Geography is relevant, but the mere fact that a
temporary light-duty job may require some more travel at the employer’s
expense is not sufficient grounds by itself for deeming it “unsuitable.”
Where an Iowa employer comes up with a seemingly logical plan to give
its injured employees useful tasks while helping them recover from their
injuries, that plan should not be dismissed out of hand simply because it
will take the employee temporarily away from home at the employer’s
expense.
III. The Sixty Percent Disability Issue.
The other issue is the percentage of disability. The majority
kneads and rolls the facts of the case trying to mold some support for the
commissioner’s sixty percent total disability determination. 6 I believe
there is none. The essential undisputed facts are: (1) Neal can no longer
work at his most recent position as a flatbed truck driver; but (2) he can
work as an ordinary truck driver, and there are many such jobs
available. The majority refers to “countervailing evidence” but this is not
a situation where the evidence is in conflict. Rather, what Neal is
capable of doing and what he is not capable of doing are essentially
undisputed. On this record, I cannot accept that Neal is sixty percent
disabled.
The determination of industrial disability “rests on a comparison of
what the injured worker could earn before the injury as compared to
what the same person could earn after the injury.” Second Injury Fund of
6One example of this is the majority’s observation that “Neal’s absence from
work during the healing period is a factor that could affect employability.” The
commissioner did not cite this consideration in his ruling. In fact, Neal acknowledged
in his hearing testimony that many truck driving positions were available. Moreover, as
we have noted earlier, Neal was offered temporary light-duty work during the healing
period and declined to accept it.
32
Iowa v. Nelson, 544 N.W.2d 258, 266 (Iowa 1995). While I could
certainly affirm the deputy’s finding of fifteen percent disability had the
commissioner adopted it, there is no substantial evidence to support the
conclusion that Neal has suffered a sixty percent loss in earning capacity
because of his shoulder injury and reduced lifting capacity. See Swiss
Colony, Inc. v. Deutmeyer, 789 N.W.2d 129, 137–38 (Iowa 2010) (noting
that industrial disability is intended to measure an injured worker’s lost
earning capacity and finding substantial evidence to support a finding of
sixty percent disability when a worker had lost his foot and lower leg in
an industrial accident).
As we have said:
Nothing in the statute supports giving the hearing
officer’s proposed decision elevated status when, as in the
present case, the officer and the agency disagree. The
statute gives the agency an unfettered right to find the facts
in the first instance. It makes the hearing officer an adjunct
of the agency rather than an independent decisionmaker.
This does not mean a disagreement on the facts
between the officer and the agency may not affect the
substantiality of the evidence supporting the agency
decision. When the agency decision is attacked on the
substantial evidence ground in section 17A.19(8)(f) [now
17A.19(10)(f)], the district court must examine the entire
record. This includes the hearing officer’s decision.
§ 17A.12(6)(e) and (f) [now 17A.12(5)(e) and (f)].
Iowa State Fairgrounds Sec. v. Iowa Civil Rights Comm’n, 322 N.W.2d
293, 294–95 (Iowa 1982).
I would reverse both the district court and the commissioner on
the percentage of disability and would remand for further findings by the
commissioner on this subject.
Cady, C.J., and Waterman, J., join this dissent.