STAFF MANAGEMENT and New Hampshire Insurance Company, Appellants,
Pascuala JIMENEZ, Appellee.
As Corrected Nov. 18, 2013.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Christopher S. Spencer and Stephen W. Spencer of Peddicord, Wharton, Spencer, Hook, Barron & Wegman, LLP, West Des Moines, for appellants.
Paul J. McAndrew, Jr., Coralville, for appellee.
Kathleen Graham Sumner of Law Offices of Kathleen G. Sumner, Greensboro, North Carolina, and Thomas A. Palmer of Lawyer, Dougherty, Palmer, & Flansburg, P.L.C., West Des Moines, for amicus curiae Workers' Injury Law & Advocacy Group.
James C. Byrne of Neifert, Byrne & Ozga, P.C., West Des Moines, for amicus curiae Iowa Association of Justice's Core Group.
Rebecca Smith of National Employment Law Project, Seattle, Washington, and Mark S. Soldat of Soldat & Parrish-Sams, P.L.C., West Des Moines, for amicus curiae Iowa Citizens for Community Improvement and the National Employment Law Project.
In this appeal, we must first decide whether the Iowa Workers' Compensation Commissioner can award an undocumented worker healing period benefits under the Iowa Workers' Compensation Act. The commissioner and the district court held an undocumented worker is entitled to these benefits. The employer appealed and we affirm the district court judgment that an undocumented worker is entitled to healing period benefits under the Iowa Workers' Compensation Act.
Upon holding an undocumented worker is entitled to these benefits under the Iowa Workers' Compensation Act, we must also decide (1) whether substantial evidence supports the running award of healing period benefits, (2) whether the commissioner can award healing period benefits starting from a date preceding the parties' stipulation as to when the healing period should begin, and (3) whether the commissioner can award healing period benefits to the claimant during the time period she was working. The district court held substantial evidence supported the running award of healing period benefits, the commissioner was correct in starting healing period benefits at a date prior to the parties' stipulated date, and the claimant's return to work did not cut off any of her benefits. On appeal, we affirm the district court on the issues of substantial evidence and the starting date of benefits. However, we disagree with the district court judgment on the last issue and find the claimant is not entitled to healing period benefits while she was working.
Accordingly, we affirm in part and reverse in part the district court judgment. We remand the case to the district court to remand the case back to the commissioner to enter an order consistent with this decision on the issue of the running award of healing period benefits while the claimant was working.
I. Background Facts and Proceedings.
Pascuala Jimenez is the claimant. Jimenez was forty-five years old at the time of the administrative hearing, and had lived for nineteen years in West Liberty, Iowa. Jimenez has a ninth grade education that she received in Mexico. Jimenez's past medical history relevant to this case shows that she has had four cesarean sections and a hernia repair in 1995.
Jimenez first came to the United States in 1991. She entered the United States legally with a visa. Jimenez's status permitted her to stay in the country for ten years. The government did not extend her visa. After the expiration of her visa, Jimenez could not legally work in the United States and she became an undocumented worker.
Staff Management, a temporary employment agency, employed Jimenez in 2001. Staff Management assigned Jimenez to Proctor & Gamble in Iowa City, where she had worked for about sixteen years. Jimenez worked for two other temporary employment agencies before working for Staff Management, but she worked at Proctor & Gamble the entire time.
Jimenez was a line leader and supervisor who actively participated in the work of the people she supervised. Her work entailed packing shampoo by taking bottles off the line, placing the bottles in boxes, and then placing the boxes on pallets. The boxes weighed approximately twenty-five pounds and the pallets weighed approximately fifty to sixty pounds. Every four to five minutes, Jimenez would lift a pallet if she were helping on the line.
Jimenez had very good English-speaking skills, and would frequently act as an interpreter for other employees. In her
position as line leader and supervisor, she would communicate with Proctor & Gamble technicians and managers, the majority of whom were only fluent in English. Her manager described her as a great employee.
On September 12, 2007, Jimenez experienced light cramping after placing large bottles full of shampoo in boxes. The pain went away after Jimenez gave herself a massage and waited for the pain to lessen. On September 13, Jimenez was helping another person lift a pallet when she felt a pain in her stomach and became dizzy. Unlike her pain the previous day, she was unable to move on September 13 due to the pain.
Jimenez went to Dr. Cuddihy in Coralville to treat her injury. Dr. Cuddihy diagnosed her with a right abdominal peri-umbilical hernia and a right lower abdominal hernia, and referred her to a general surgeon for evaluation. The general surgeon, Dr. Peterson, did additional testing and diagnosed Jimenez with two hernias. Dr. Peterson opined the hernias were probably work related and required surgery. Jimenez returned to work until the day of the surgery but she had to wear a large bandage.
On November 14, Jimenez underwent surgery. Jimenez identified her hernias prior to surgery as being located one to the right of her naval and the other in the groin area.
After the surgery, Jimenez continued to have pain. Dr. Peterson authorized Jimenez to return to light-duty work on December 12. On December 10 and December 12, Jimenez called Staff Management and Dr. Peterson about returning to work. In these conversations, she stated that she was not able to go back to work because of the pain. Dr. Peterson referred Jimenez to Dr. Maves to receive an injection for the pain.
On December 19, Jimenez received two injections in the abdomen. Dr. Maves told her to call if she remained in pain. Jimenez called Dr. Maves the next day, and he told her it was normal that she was still experiencing pain. Jimenez did not call him back after that conversation because she thought he would tell her the same thing.
Jimenez returned to work on December 26 without work restrictions. However, she was unable to do her normal job, and had to ask for help from other employees. Jimenez continued to work for less than a month.
On January 22, 2008, Staff Management terminated Jimenez. Jimenez's manager stated that Staff Management terminated Jimenez because she did not have authorization to work in the United States. In November 2006, Staff Management became a charter member of the E-Verify® program, a federal program to verify employment authorization documentation of employees. On August 3, 2007, Staff Management received notice from its central office stating that Jimenez's name and social security number did not match with the Social Security Administration's records. Staff Management contacted Jimenez at least three times to let her know she needed to bring in her documentation or it could not continue to employ her.
Jimenez's manager contacted Jimenez about her termination, and stated at the administrative hearing that Staff Management also terminated ten other employees at that time. Jimenez's manager contends the reason she terminated Jimenez was the central office would not allow her to wait any longer for Jimenez's paperwork. Staff Management asked the central office for proof Jimenez was undocumented, and received an audit of individuals from U.S. Immigration and Customs Enforcement
that showed Jimenez's alien registration number did not actually belong to her, and two different people used the social security number she provided. Staff Management contends Jimenez's termination had nothing to do with her work-related injury. Staff Management believed Jimenez had recovered from her surgery and needed to comply with the E-Verify® program requirements.
Jimenez contends Staff Management had always known she did not have her documentation, and she believed Staff Management fired her because she was physically unable to work anymore. Jimenez admitted Staff Management had told her to bring in her documentation and that she could come back and reapply to work if her documentation was in order. Jimenez stated she had not applied for work after Staff Management terminated her because she was unable to do physical labor, and every job available to her required physical labor.
After Staff Management terminated Jimenez, she went to the West Liberty Clinic for medical care. The doctor at the clinic referred her back to the clinic where Dr. Peterson had practiced. Jimenez received a card that said she would have to take $200 to go to the doctor. Jimenez then tried to call Dr. Peterson, but he had moved to Washington, D.C. Jimenez did not go to the clinic to see another doctor because she did not have $200. Jimenez made efforts to go to a free clinic, but the clinic told her they could not help her. Jimenez also called Staff Management after her termination to try to see a doctor. Staff Management told her it could not help her because it no longer employed her.
On February 14, 2008, Dr. Peterson signed a maximum medical improvement and impairment document stating that Jimenez had reached maximum medical improvement (MMI) on December 26, 2007, and noting that Dr. Maves would be providing her further treatment. On May 12, Dr. Prevo, a physician retained by Staff Management to review Jimenez's records, provided an opinion of Jimenez's condition based solely upon her medical records. Dr. Prevo opined Jimenez was currently on regular duty status without any restrictions and that there was zero percent objective impairment.
In 2009, Jimenez's attorney wrote to Staff Management indicating that Jimenez's medical condition had worsened. Jimenez also went to a doctor in Cedar Rapids and a doctor in Des Moines. Dr. Epp, in Cedar Rapids, examined Jimenez on May 11, 2010, and determined Jimenez had a hernia and she could not work until surgery repaired the hernia. Dr. Epp opined the current hernia was a sequela of the surgical correction of the previous hernias sustained in 2007. Dr. Epp further determined that Jimenez had not reached MMI.
The Des Moines doctor, Dr. Bansal, examined Jimenez on June 18, 2010. Jimenez testified Dr. Bansal advised her to go to the emergency room immediately. Dr. Bansal returned a letter to Jimenez stating Jimenez could not work until a physician repaired her hernia.
Jimenez's pain had been ongoing beginning with the original hernia surgery on November 14, 2007, and continuing until the time of the administrative hearing. After the surgery, Jimenez started feeling a bump in almost exactly the same location as the bump had been before the surgery. The bump had been growing since the surgery. Jimenez stated the hernia never went away and the pain has been worse following surgery.
On July 6, 2009, Jimenez filed for workers' compensation benefits. The petition
alleged the dispute in the case was " Compensability, Rate; Date of Injury to be determined; Nature and Extent of Industrial Disability; Penalty." A deputy commissioner held an administrative hearing on the petition. Prior to the hearing on the petition, the parties filed a hearing report. The hearing report listed the following issues relevant to this appeal as in dispute:
1. Is the alleged injury the cause of a permanent disability?
2. Is the claimant entitled to either temporary total disability, temporary partial disability, or healing period benefits from January 1, 2009 through current and running?
3. Was claimant off work for reasons unrelated to her injuries?
The deputy held the hearing on July 20, 2010. At that time, the deputy reviewed the hearing report.
On October 25, the deputy issued her arbitration decision. On the issues relevant to this appeal, the deputy found Jimenez was entitled to running healing period benefits based on the medical recommendations of Dr. Epp and Dr. Bansal because the current hernia was the result of the surgical correction of the 2007 hernias. The deputy also determined the extent of Jimenez's disability was not ripe for adjudication. Finally, the deputy ordered Staff Management to pay Jimenez weekly benefits in the form of a running award, to pay all medical expenses incurred to treat the work-related injury, and to pay for future medical care and prescription charges. In sum, the deputy awarded running healing period benefits from the date of the work-related injury on September 13, 2007 until Jimenez reaches MMI.
Staff Management appealed the ruling to the commissioner. On appeal, Staff Management argued substantial evidence did not support the deputy's running award of healing period benefits, Jimenez was ineligible for benefits under the Iowa Workers' Compensation Act because she was an undocumented worker, the deputy's computation of healing period benefits was contrary to the stipulation as to when the award should start, and if the starting date of the healing period was correct, Jimenez could not receive healing period benefits during the time she returned to work. The commissioner affirmed the arbitration decision as to all of these issues.
Staff Management filed a petition for judicial review. The district court affirmed the commissioner's ...