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Norton v. Hy-Vee, Inc.

Court of Appeals of Iowa

November 8, 2017

VICKY NORTON, Petitioner-Appellant,
v.
HY-VEE, INC., Respondent-Appellee.

         Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.

         An injured worker appeals the district court's denial of her petition for judicial review asserting the workers' compensation commissioner misinterpreted Iowa law addressing accommodated work.

          Daniel J. Anderson of Wertz, Dake & Anderson, Cedar Rapids, for appellant.

          Cynthia S. Sueppel of Scheldrup Blades Smith Schrock P.C., Cedar Rapids, for appellee.

          Heard by Vogel, P.J., and Tabor and Bower, JJ.

          VOGEL, Presiding Judge.

         Vicky Norton appeals the district court's denial of her petition for judicial review, which alleged the workers' compensation commissioner misinterpreted Iowa law regarding the impact accommodated work has on an industrial disability rating. Because we conclude the commissioner did not misinterpret Iowa law, we affirm the decision of the district court.

         I. Background Facts and Proceedings.

         Norton injured her neck and back at work on April 2, 2009. The employer, Hy-Vee, accepted the injury and paid workers' compensation benefits but disputed certain aspect of Norton's claim. Norton filed an arbitration petition with the workers' compensation commission in 2012, and the matter proceeded to a hearing on February 14, 2014. The presiding deputy commissioner concluded, among other things, Norton reached maximum medical improvement for her injury on November 16, 2011, Norton's work injury contributed to her mental health issues of anxiety and depression, and Norton sustained a seventy-percent industrial disability. In assigning the disability rating, the deputy stated:

It was clear from the testimony of the witness who worked with [Norton], she was motivated and a valuable employee both before and after the injury. [Norton's] current supervisor will continue to employ [Norton] with her restrictions. [Norton] has developed unique skills that allow her to be an exceptional pharmacy technician. She is very productive in the current employment niche. However, if [Norton] was not able to work in this specific vocational area, [she] would not likely be employed. [Norton] is only able to work 6 hours per day. [She] is working 25 percent less for her employer, a significant reduction in her ability to work.
[Norton's] anxiety and depression are part of [her] work injury. Neither Dr. Netolicky nor Dr. March have imposed any specific restriction based upon these conditions at the time of the hearing.
Considering the situs and severity of [Norton's] injury, the length of her healing period, her motivation level, her age, education, employment background, ability to retrain, her permanent impairment, permanent restrictions, and all other industrial disability factors outlined by the Iowa Supreme Court, I find [Norton] has proven a [seventy] percent loss of future earning capacity as a result of the April 2, 2009 work injury.

         Both parties appealed the deputy's decision to the workers' compensation commissioner; Norton sought permanent total disability benefits, and Hy-Vee claimed the industrial disability award should have been twenty-five percent rather than a seventy percent. The commissioner issued a decision on December 16, 2015, largely affirming the deputy's ruling[1] and providing additional analysis. With respect to the award of seventy-percent industrial disability, the commissioner stated:

The presiding deputy was correct in rejecting [Hy-Vee's] argument that a permanent 25 percent reduction in [Norton's] work hours as a pharmacy technician at [Hy-Vee] does not result in significant permanent disability. Such a reduction in work hours results in a very significant loss of job opportunities in the labor market.
On the other hand, the presiding deputy was correct in rejecting [Norton's] argument that she is permanently and totally disabled. While [Norton] can no longer work more than 30 hours per week, and she is being accommodated for that disability by [Hy-Vee], she continues in suitable and stable employment. [Norton's] managers at [Hy-Vee] testified at hearing, without contradiction, that [Norton] is a highly valued employee who probably would find new employment, even with her permanent restrictions, should she leave her employment with [Hy-Vee]. [Norton's] managers also testified that the high quality of [Norton's] work, along with her extra-duty tasks more than make up for any of her deficits. A scheduled work week of 30 hours per week is considered full time, and gainful employment, in many employments in our current labor market.
Many argue [Norton's] accommodated work should not be considered because a future loss of employment due to a discontinuance of those accommodations cannot form the basis of a review-reopening proceeding, and they cite for this proposition the Iowa Supreme Court decision in U.S. West v. Overholser, 566 N.W.2d 873 (Iowa 1997). However, this would be a misinterpretation of the court's opinion in Overholser. In that case, the claimant failed to establish that the loss of her employment was due to a discontinuance of an accommodation and the claimant also failed to establish that the prior agreement for settlement was lower due to her accommodated employment. The court in Overholser cited favorably their opinion in Gallardo v. Firestone Tire & Rubber Co., 482 N.W.2d 393, 396 (Iowa 1992), which allowed a review-reopening proceeding and an increase in compensation when the prior agency decision specifically stated that the award was adjusted downward due to continued accommodated employment. Overholser, 566 N.W.2d at 876-77.
In this case, the award of permanent disability is based on [Norton's] ability to continue in her pharmacy technician position at Hy-Vee and her ability to find new employment should she ever leave Hy-Vee.

         Both parties sought judicial review of the commissioner's decision in the district court. Norton claimed the commissioner incorrectly interpreted the applicable controlling case law and impermissibly decreased her industrial disability rating based on Hy-Vee's accommodation of her permanent work restrictions. Hy-Vee sought a reversal of the agency decision that concluded Norton's work injury caused her mental injury. In July 2016, with respect to Norton's claim, the district court affirmed the commissioner's decision, concluding:

Here, [the commissioner] considered Norton's work history, work schedule, employee value, and accommodations in affirming [the deputy's] industrial disability award. The commissioner noted that Norton has worked for five years after injuring her back at Hy-Vee. He noted that Norton continues to be a valuable employee at Hy-Vee, and that thirty hour workweeks are considered full-time, gainful employment in some jobs in the current labor market. Finally, he noted that Norton's colleagues expressed their belief that Norton would probably find new employment; even with her permanent restrictions should she leave Hy-Vee. The commissioner's conclusions support a finding that he correctly interpreted Murillo, [2] Ciha, [3] and Thilges[4] by focusing on Norton's ability to earn in the competitive job market.
Extending the analysis even further affirms the commissioner correctly interpreted Overholser, which states: "the injured's loss of earning capacity is properly viewed 'in terms of the injured worker's present ability to earn in the competitive job market without regard to the accommodation furnished by one's present employer.'" [Overholser, 566 N.W.2d at 876]. "[T]he disability award must not be adjusted downward because the worker is receiving sheltered employment or merely because the employer modifies its job requirements in light of an employee's disability." Id. The court, in Overholser, noted that "there was no evidence that Frances'[s] disability rating was 'adjusted downward' because of accommodation by U.S. West. [Id.] Additionally, the court was not convinced that U.S. West "actually accommodated her original injury." Id. at 877. Instead, the Court concluded that "the record does not support the contention that her work was modified . . . to accommodate her injury or that she received sheltered employment which distorted her true earning capacity." Id.
First, as in Overholser, there is no evidence in the record that Norton's disability rating was "adjusted downward" due to an accommodation. [The deputy] awarded Norton an industrial disability rating of [seventy percent] after considering each opinion provided by Norton's doctors, Norton's motivation level, age, education, employment background, severity of injury, length of healing, and other factors outlined by the Iowa Supreme Court. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980). [The deputy] assessed each doctors' medical history, history with Norton, and type of examination performed. [The deputy] assessed more weight to some doctors, rather than others. For example, [the deputy] found the opinions of Dr. Netolicky and Dr. March more reliable than those of Dr. Sundermann and Dr. Mooney due to their extensive experience with Norton's medical history.
"As we have explained, the commissioner, as fact finder, is responsible for determining the weight to be given expert testimony." Sherman v. Pella Corp., 576 N.W.2d 312, 321 (Iowa 1998). "The commissioner is free to accept or reject an expert's opinion in whole or in part, particularly when relying on a conflicting expert opinion." Id. [The commissioner] assessed similar weight to Dr. Netolicky['s], Dr. March['s], and Dr. Perri's opinions due to their more recent experience with Norton. Therefore, [the deputy's] award of [seventy percent] disability, and [the commissioner's] ...

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