WARREN PROPERTIES and ACE AMERICAN INSURANCE COMPANY, Appellees,
JANICE STEWART, Appellant
Appeal from the Iowa District Court for Polk County, Christopher L. McDonald, Judge. A workers' compensation claimant appeals the district court ruling on judicial review of a decision of the Iowa Workers' Compensation Commissioner.
Martin Ozga of Neifert, Byrne & Ozga, P.C., West Des Moines, for appellant.
Mark A. King and Jason W. Miller of Patterson Law Firm, L.L.P., Des Moines, for appellees.
Matthew D. Dake of Wertz & Dake, P.C., Cedar Rapids, for amicus curiae Workers' Compensation Core Group.
CADY, Chief Justice.
In this workers' compensation appeal, we are asked to revisit our rule governing
apportionment resulting from successive work injuries at multiple places of employment in light of the 2004 amendments to the workers' compensation permanent disabilities statute. The deputy workers' compensation commissioner awarded benefits to the worker based on a finding of two successive injuries to the back and a shoulder injury and applied the full-responsibility rule with no apportionment for the preexisting disability. Our review follows reviews by the workers' compensation commissioner, who affirmed, and the district court, which affirmed in part, reversed in part, and remanded. We conclude an employer who is liable to compensate an employee for a successive unscheduled work injury is not liable to pay for the preexisting disability that arose from employment with a different employer or from causes unrelated to employment when the employee's earning capacity was not reevaluated in the competitive job market or otherwise reevaluated prior to the successive injury. We affirm in part and reverse in part the decision of the district court. We remand the case to the district court to remand the case back to the workers' compensation commissioner for further proceedings consistent with this opinion.
I. Background Facts and Proceedings.
Janice Stewart was working two jobs in 2006. She had begun working as an assistant property manager for a business in Des Moines called Warren Properties in 2005. Her duties included typing, answering the phone, showing apartments to prospective tenants, inspecting property, and preparing rental agreements. Stewart received a salary and a rent allowance for this work. In June 2006, Stewart began a second full-time job with Wal-Mart. She worked as a customer service representative and assistant manager.
In November 2006, Stewart injured her lower back at Wal-Mart while moving shopping carts. She quit the job a week later, but continued working for Warren Properties. Stewart began seeking medical treatment for her back injury. She saw a variety of doctors over a period of several years for treatment and evaluation.
In May 2008, Dr. Cassim Igram determined Stewart had reached maximum medical improvement for her back injury and concluded she sustained a ten percent permanent impairment of the body as a whole. Two months later, Dr. William Boulden expressed the same opinion. In October 2008, Dr. Daniel McGuire expressed an opinion that Stewart suffered a thirteen percent permanent physical impairment as a consequence of her back injury.
On May 20, 2009, Stewart and Wal-Mart entered into a contested case settlement on her claim for workers' compensation benefits. The settlement was based on a forty percent industrial disability determination. It resulted in the payment of $60,000 in compensation, plus $11,000 in medical bills.
Stewart continued her employment at Warren Properties throughout the duration of the medical treatment for her 2006 back injury. On the evening of February 2, 2009, she fell on ice as she left work. This was more than three months prior to her contested case settlement with Wal-Mart. She experienced back pain with radiating pain down one leg as well as pain in her shoulders and neck. As with the Wal-Mart injury, Stewart sought medical treatment following her fall and saw a variety of doctors for treatment and evaluation.
An evaluation in May 2009 found Stewart had obtained maximum medical improvement. Physicians expressed differing
views on the question whether Stewart's fall on the ice caused her any permanent physical impairment. In September 2009, Dr. Martin Rosenfeld opined Stewart suffered a one percent physical impairment to her shoulder as a consequence of the fall. In 2010, Dr. Thomas Carlstrom opined that Stewart suffered no new physical impairment from her fall. In July 2010, Dr. Jacqueline Stoken opined the fall had exacerbated Stewart's preexisting back condition and caused a right shoulder impairment. Dr. Stoken viewed the low-back impairment as falling within the ten to thirteen percent impairment range and assigned Stewart a thirteen percent impairment of the body as a whole for this injury and ten percent impairment to the body as a whole for the shoulder injury. Dr. Lazaro Rabang opined Stewart's 2009 fall merely temporarily aggravated the back injury sustained in the 2006 Wal-Mart incident.
Stewart filed a complaint against Warren Properties with the workers' compensation commissioner in November 2009 to recover compensation for her February 2, 2009 injury. Following a hearing in October 2010, a deputy commissioner found Stewart sustained a permanent partial unscheduled disability from the injury. The deputy commissioner credited the medical opinion of Dr. Stoken and found Stewart sustained a thirteen percent physical impairment to her body as a whole due to the back injury. The deputy commissioner found no specific percentage of permanent physical impairment to Stewart's shoulder as a result of the 2009 injury. The deputy commissioner concluded Stewart's disability to her back and shoulder resulted in a fifty percent industrial disability. Stewart was awarded benefits without any apportionment for the preexisting disability that resulted from the 2006 injury. On appeal, the commissioner affirmed the decision of the deputy commissioner.
Warren Properties filed a petition for judicial review with the district court. The district court held the commissioner erred in failing to apportion Stewart's preexisting disability that arose from the 2006 injury when calculating the benefits owed by Warren Properties for the 2009 injury. In doing so, the court held Stewart's compensation for the 2009 injury is limited to the amount of the industrial disability caused by that injury and rejected Warren Properties' contention that apportionment should be effected by crediting the amount previously paid by Wal-Mart to Stewart for the 2006 back injury. The court determined the commissioner was required to award compensation based on the percentage of the worker's disability attributable to the 2009 injury without considering the prior disabilities the employee possessed for which the employer was not responsible. Additionally, the court held that the finding by the commissioner of a thirteen percent impairment resulting from the 2009 injury was too uncertain in light of the evidence that Stewart suffered a thirteen percent impairment to her back from her 2006 injury. The court concluded the commissioner's impairment finding could not be sustained without an additional finding that the prior impairment to the back had healed before the 2009 injury. The district court remanded the case to the commissioner specifically to determine if the 2009 injury resulted in any new back disability.
Stewart and Warren Properties both appealed the decision of the district court. On appeal, Stewart claims the district court erred in concluding that the disability arising from the 2006 and 2009 injuries should be apportioned. She also claims the evidence was sufficient to support the commissioner's finding that the 2009 fall permanently aggravated her preexisting back injury and created a new permanent injury to her shoulder, which combined to sustain a finding of fifty percent industrial disability.
Warren Properties claims on appeal that the district court erred by remanding the case for a new impairment finding because the evidence presented at the hearing does not support any finding of a new disability arising from the 2009 injury. Warren Properties also claims that, if a new impairment rating is warranted, the preexisting disability arising from the 2006 injury must be apportioned through a credit to the employer equal ...