IN THE COURT OF APPEALS OF IOWA
No. 20-0155
Filed April 14, 2021
ANNETT HOLDINGS, INC. d/b/a TMC TRANSPORTATION,
Plaintiff-Appellant,
vs.
NICHOLAS ROBERTS,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, David Nelmark, Judge.
Annett Holdings, Inc. appeals the district court ruling awarding Nicholas
Roberts industrial disability and healing-period benefits. AFFIRMED.
Sasha L. Monthei, Columbus Junction, for appellant.
Laura Schultes of RSH Legal, P.C., Cedar Rapids, for appellee.
Considered by Bower, C.J., and Doyle and Mullins, JJ.
2
BOWER, Chief Judge.
Annett Holdings, Inc., doing business as TMC Transportation (TMC),
appeals the district court’s ruling on judicial review of a review-reopening decision
by the Iowa Workers’ Compensation Commissioner. TMC asserts the
commissioner erred in granting Nicholas Roberts additional healing-period
benefits and in finding a thirty percent industrial disability. We affirm the
commissioner’s decision.
I. Background Facts & Proceedings
TMC employed Roberts as an over-the-road flatbed truck driver. In addition
to driving, his duties included placing tarps over the truck loads to secure them.
While securing a load on November 15, 2010, Roberts injured his back. On
November 24, an MRI revealed a herniated disc and significant degenerative disc
disease.1
TMC declined to authorize care, and Roberts went to his family doctor. On
January 26, 2011, his doctor found Roberts had full range of motion and released
him to work with a lifting restriction, light duty requirements, and no prolonged
sitting or standing. Roberts’s employment with TMC ended shortly thereafter.
In March 2012, Roberts began working for Reliable Transport as a no-touch
truck driver.2 He worked there until July 10, 2015. The end of his employment
was unrelated to his prior work injury.
1 Roberts admitted prior back problems, but had been able to work without
restriction before November 15, 2010.
2 Roberts indicated as a no-touch driver he did not do any of the loading or
unloading of the freight—he just drove the truck.
3
In May 2012, Roberts was evaluated for an independent medical
examination (IME). The doctor found Roberts had a nine percent whole-person
impairment as a result of the November 2010 incident and opined Roberts reached
his maximum medical improvement (MMI) on January 26, 2011. The doctor
included permanent lifting restrictions.
In February 2013, Roberts sought additional treatment for back pain and
was prescribed narcotic medications and muscle relaxers. After another IME in
March, the doctor concluded Roberts had not yet reached MMI. The doctor placed
Roberts at ten percent impairment, but opined half of the impairment preexisted
the 2010 injury.
Roberts filed a petition for workers’ compensation benefits. The arbitration
decision, filed October 30, 2013, determined Roberts’s injury was work related and
he had not yet reached MMI, and ordered healing-period benefits from November
15, 2010, through January 25, 2011. Healing-period benefits were not awarded
for the period after January 25, 2011, because Roberts had been released to work
with restrictions. The decision was affirmed on intra-agency appeal to the
commissioner and upheld by the district court on judicial review in December 2014.
TMC did not appeal.3
Roberts underwent another IME in February 2015. Although Roberts
reported back pain and leg numbness, tests showed no abnormal findings. The
3 After the district court decision was final, TMC paid Roberts a permanent partial
disability lump-sum payment for a nine percent disability, with interest added for
the time between the 2011 MMI date and payment in March 2015.
4
doctor opined Roberts had no permanent impairment. The only work restriction
placed on Roberts concerned prescription medications.
At another examination in September 2015, Roberts claimed three months
of “markedly increasing” leg and back pain, and the doctor ordered an MRI of
Roberts’s back. After the MRI, on December 29, the doctor noted that while
Roberts’s disc herniation was gone, he had “advanced degenerative disc disease.”
The doctor released him to light duty work. No further treatments or medications
were recommended in December. Roberts was again declared to be at MMI as of
February 24, 2016, with a nine percent impairment rating.4
On May 27, 2016, Roberts filed an application for review-reopening. In
December 2017, the deputy commissioner awarded additional healing-period
benefits from July 11, 2015, to December 29, 2015.5 This period included the time
between Roberts losing his employment at Reliable Transport and the MMI
determination in December 2015. The deputy commissioner determined Roberts
had a thirty percent industrial disability and TMC was responsible for the cost of
Roberts’s narcotic/opioid medication.
The commissioner affirmed the industrial disability finding, giving
“considerable deference to findings of fact that are impacted by the credibility
findings, expressly or impliedly made, regarding claimant by the deputy
commissioner.” The commissioner did not, however, agree TMC should pay for
4 April and September 2015 toxicology screens showed no evidence of Roberts’s
prescribed medications, but he filled his prescriptions and reported to his
examining doctors he was taking the medications.
5 The deputy commissioner specifically found Roberts “to have low credibility” and
noted a number of inconsistencies between his testimony and the record.
5
the prescribed medication, noting studies described the medications as
“dangerous and unnecessary” and the record indicated Roberts was not taking
them.
As for the healing-period-benefits claim, the commissioner considered the
lifting restrictions still in place and concluded Roberts “was not medically capable
of returning to work [at a] substantially similar job with defendant-employer, and
was not at MMI.” The commissioner determined Roberts met the criteria for
healing-period benefits after his job with Reliable Transport ended under Iowa
Code section 85.34(1), adopting the healing-period benefits award proposed by
the deputy.
On judicial review, TMC challenged the healing period benefits awarded for
2015 and the commissioner’s industrial disability finding. Roberts challenged the
commissioner’s prescription medication ruling. The district court affirmed the
commissioner’s ruling on all three issues.
TMC appeals, challenging the additional healing-period benefits and the
level of industrial disability.
II. Scope and Standard of Review
“Judicial review of workers’ compensation cases is governed by Iowa Code
chapter 17A. On our review, we determine whether we arrive at the same
conclusion as the district court.” Warren Props. v. Stewart, 864 N.W.2d 307, 311
(Iowa 2015) (citation omitted).
A district court decision rendered in an appellate capacity is
examined for correction of errors at law. In making such a
determination, we apply the standards of Iowa Code section
17A.19[(10)], which provides an agency decision may be reversed
where substantial rights of a party have been prejudiced and the
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action is unsupported by substantial evidence or affected by errors
of law, to determine if our conclusion would be the same as that of
the district court.
Christensen v. Snap-On Tools Corp., 554 N.W.2d 254, 257 (Iowa 1996) (citation
omitted). “It is the commissioner’s duty as the trier of fact to determine the
credibility of the witnesses, weigh the evidence, and decide the facts in issue. The
reviewing court only determines whether substantial evidence supports a finding
‘according to those witnesses whom the [commissioner] believed.’” Arndt v. City
of Le Claire, 728 N.W.2d 389, 394–95 (Iowa 2007) (alteration in original) (citations
omitted).
“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.’” Neal v. Annett Holdings,
Inc., 814 N.W.2d 512, 518 (Iowa 2012) (citation omitted). “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. 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. (citation omitted).
III. Analysis
1. Additional healing-period benefits. TMC argues the commissioner erred
in interpreting Iowa Code section 85.34 to require the payment of healing-period
benefits to Roberts after his employment with Reliable Transport. Our supreme
court has found the legislature did not clearly vest the commissioner with authority
7
to interpret section 85.34, and we review his interpretation for correction of errors
at law. Waldinger Corp. v. Mettler, 817 N.W.2d 1, 7 (Iowa 2012). In our analysis,
we keep in mind the long-standing principle that the workers’ compensation act is
for the benefit of the worker and “should be, within reason, liberally construed.” Id.
at 9 (citation omitted).
Healing-period benefits are designed to “sustain[ ] the injured employee
during convalescence and disability from work.” Id. at 7. The employer owes the
employee healing-period compensation
beginning on the first day of disability after the injury, and until the
employee has returned to work or it is medically indicated that
significant improvement from the injury is not anticipated or until the
employee is medically capable of returning to employment
substantially similar to the employment in which the employee was
engaged at the time of injury, whichever occurs first.
Iowa Code § 85.34(1) (2015). “Compensation for permanent partial disability shall
begin at the termination of the healing period provided in subsection 1.” Id.
§ 85.34(2); see Evenson v. Winnebago Indus., Inc., 881 N.W.2d 360, 3774 (Iowa
2016).6
After achieving MMI, a claimant may be rendered temporarily disabled from
work due to the work-related injury and a new healing period may begin.
Waldinger, 817 N.W.2d at 8. “[T]he availability of a healing period remedy turn[s]
on whether a new period of disability from work” caused by the original injury
begins on the date of further treatment. See id. at 9. “[S]ection 85.34(1) leaves
6 The payment of permanent partial disability benefits does not preemptively
terminate healing-period benefits if none of the three statutory indicators exist. See
Evenson, 881 N.W.2d at 372 (considering when permanent disability benefits are
due in the event of multiple healing periods); Waldinger, 817 N.W.2d at 9.
8
room for the possibility that continuing medical treatment provided by the employer
under section 85.27 can result in a series of intermittent invasive treatments,
periods of temporary disability from work and convalescence, serial MMI dates,
and revised permanent disability ratings following a single work-related injury.” Id.
TMC argues Roberts’s employment did not end due to his injury, therefore
he does not meet the criteria for a second healing period. In Waldinger, the court
noted “some attempts to return to work are unsuccessful and temporary,” and
concluded the legislature did not intend to deny an employee additional healing-
period benefits because of an unsuccessful return to work. Id.
The commissioner opined that after Roberts’s employment with Reliable
Transport ended, “the only relevant factors are those set out in Iowa Code section
85.34(1): whether claimant had returned to work; was medically capable of
returning to substantially similar work; or was at MMI.” Because none of the factors
were met from July 11 to December 29, 2015, healing-period benefits were
warranted.
On our review, we find no legal error in the commissioner’s analysis. We
affirm the award of healing-period benefits.
2. Industrial disability. TMC claims the commissioner’s thirty percent
industrial disability award cannot be reconciled with the nine percent functional
impairment rating provided by the doctors and Roberts’s salary at Reliable
Transport.
“Industrial disability measures an injured worker’s lost earning capacity.”
Second Injury Fund of Iowa v. Nelson, 544 N.W.2d 258, 266 (Iowa 1995). The
focus of an industrial disability determination is the ability of the claimant to be
9
gainfully employed; it is not merely an evaluation of what the claimant can or
cannot do. Id. We inquire whether “there [are] jobs in the community that the
employee can do for which the employee can realistically compete.” Thornton v.
Am. Interstate Ins. Co., 940 N.W.2d 1, 37 (Iowa 2010) (alteration in original)
(citation omitted). This requires consideration of those factors that bear on the
claimant’s employability, including “age, intelligence, education, qualifications,
experience, and the effect of the injury on the worker’s ability to obtain suitable
work.’” Guyton v. Irving Jensen Co., 373 N.W.2d 101, 103 (Iowa 1985).
The functional impairment as measured by an impairment rating is only one
factor considered in determining industrial disability and the reduction in earning
capacity. See Hill v. Fleetguard, Inc., 705 N.W.2d 665, 673 (Iowa 2005). Here,
the commissioner also considered Roberts has limited education, most of his
experience is truck driving, Roberts has demonstrated an ability to work within his
restrictions, and he has potential for retraining. Roberts’s success in finding
employment with an equal-or-better salary is not determinative. Geographic
location is a relevant consideration in determining workers’ compensation benefits,
as is the availability of suitable work. Neal, 814 N.W.2d at 522–24. Roberts’s
employment at Reliable Transport occurred in a different state with a different
market than his employment at TMC and does not reflect directly on Roberts’s
earning capacity in the same or similar job in the community.
Under all these facts, we find substantial evidence supports the
commissioner’s industrial disability determination.
AFFIRMED.