Celotex Corp. v. Auten

Decision Date20 December 1995
Docket NumberNo. 94-1003,94-1003
Citation541 N.W.2d 252
PartiesThe CELOTEX CORP., Appellant, v. Douglas AUTEN, Appellee.
CourtIowa Supreme Court

Stephen W. Spencer and Joseph M. Barron of Peddicord, Wharton, Thune and Spencer, P.C., Des Moines, for appellant.

Tito Trevino of Trevino Law Office, Fort Dodge, for appellee.

Considered by McGIVERIN, C.J., and LARSON, LAVORATO, NEUMAN, and ANDREASEN, JJ.

LAVORATO, Justice.

This workers' compensation case comes to us on further review. The Celotex Corporation appealed from an industrial commissioner's decision awarding 100% permanent total industrial disability benefits to its former employee, Douglas B. Auten. See Iowa Code § 85.34(3) (1987). On judicial review, the district court affirmed the industrial commissioner's award of benefits. The court of appeals affirmed, and we granted Celotex's application for further review.

Celotex presses two issues in its petition for further review. First, Celotex contends the industrial commissioner incorrectly concluded there is substantial evidence that Auten is 100% permanently and totally industrially disabled regarding an injury he sustained during the course of his employment. We conclude there is substantial evidence to support the commissioner's decision on this issue, and we give the issue no further consideration. Because the district court and the court of appeals reached the same conclusion, we affirm on this issue.

Our reason for granting further review was to revisit the second issue Celotex raised: whether it is appropriate to apportion a present industrial disability between a recent work-related injury and prior work-related injuries. We agree with the industrial commissioner, the district court, and the court of appeals that there should be no such apportionment. We therefore affirm on this issue as well.

Auten began employment with Celotex in May 1959. In 1977 he sustained an injury to his neck while unloading stucco blocks from boxcars. Because of this injury, Auten had surgery on his cervical spine in 1979. In approximately June 1980, the parties negotiated a settlement agreement in which Celotex agreed to pay Auten permanent partial disability benefits for a 25% body as a whole injury. The total amount of the settlement was $17,000.

In 1982 Auten tore his right bicep tendon while lifting a bucket of water. As a result he received permanent partial impairment ratings to his right arm. In 1984 Auten received a lump-sum payment of $10,000 in a special case settlement of the 1982 injuries and of a review-reopening claim for the 1977 injury.

Under his union contract, Auten "bumped into" the sole janitorial position at Celotex in 1980. It is undisputed that in May 1987, Auten was injured during the course of his employment as a janitor at Celotex. When he attempted to untangle water hoses hanging from a wall hook, Auten experienced a tearing sensation in his right shoulder.

Celotex sent Auten to a local doctor, who referred him to Dr. Arlen Hanssen at the Mayo Clinic. Dr. Hanssen examined Auten on September 3 and performed an arthrogram (a photograph of a joint made with X-rays). The arthrogram revealed that Auten had sustained a torn rotator cuff to his right shoulder. Auten underwent acromioplasty (surgical repair of the acromial process) with rotator cuff repair and was off work recuperating until the spring of 1988.

On March 28 Dr. Robert Weatherwax examined Auten at Celotex's request. Dr. Weatherwax determined that Auten could return to work as early as April 4, but with several restrictions. Auten should engage in no activities requiring him to lift his right shoulder above horizontal. He could not do any pushing, pulling, or lifting with that shoulder of any weight greater than five pounds.

Auten returned to work on April 4. At the hearing before the deputy industrial commissioner, Auten stated he was unaware of the restrictions Dr. Weatherwax had imposed. Auten worked--apparently without incident--until November 21, when Celotex again sent him to Dr. Weatherwax. After this examination Dr. Weatherwax sent Celotex's claims management service a letter. In the letter Dr. Weatherwax recommended that Auten permanently refrain from mopping. In addition, Auten was to avoid pushing, pulling, and lifting of any amount greater than ten pounds. Auten was to permanently avoid overhead activity.

Celotex terminated Auten on June 2, 1989, after another employee with more seniority bid for--and bumped Auten out of--the janitorial position. The company's employee relations supervisor told Auten that there were no other positions available at the plant that complied with Weatherwax's restrictions. Celotex refused Auten's three attempts to bid for other positions at the plant because none of the jobs met these restrictions. Auten remains unemployed.

Auten filed a petition with the industrial commissioner, alleging that his May 1987 injury was work-related. Following a hearing, a deputy industrial commissioner awarded Auten 100% permanent total industrial disability benefits under Iowa Code section 85.34(3). The award order directed Celotex to pay Auten at the rate of $293.89 per week from September 7, 1987, for an indefinite period of time during Auten's period of disability.

Celotex appealed to the industrial commissioner, who affirmed the deputy's decision. The industrial commissioner concluded that if there is no change in Auten's condition, the benefits will continue for life.

As a preliminary matter, Auten contends Celotex failed to preserve error on the apportionment issue. In his resistance to Celotex's application for further review, Auten initially claims Celotex first raised the issue with the district court on judicial review. He later claims Celotex first raised the issue with us in the application for further review.

Our careful review of the record reveals that Celotex raised the issue with the deputy industrial commissioner and the industrial commissioner. Both considered and rejected the apportionment argument Celotex now urges upon us. Because the issue was preserved for our review, we move to a consideration of the merits.

Although the commissioner found that a considerable part of Auten's total disability is attributable to the two prior work-related injuries, he refused to apportion some part of the total disability to these injuries. In refusing to apportion, the commissioner relied on our rule that limits apportionment to

those situations where a prior injury or illness, unrelated to the employment, independently produces some ascertainable portion of the ultimate industrial disability which exists following the employment-related aggravation.

Varied Enters., Inc. v. Sumner, 353 N.W.2d 407, 411 (Iowa 1984); accord Bearce v. FMC Corp., 465 N.W.2d 531, 535 (Iowa 1991).

Celotex contends that this rule does not apply here because the extent of disability attributable to Auten's two prior work-related injuries is known. Auten, Celotex argues, was paid $27,000 for these injuries which caused a substantial part of his permanent total industrial disability.

Like the court of appeals, we recognize that the earlier disability was established. This then presents the following narrow question: Because the two prior injuries were work-related, does that fact preclude apportionment? In Tussing v. George A. Hormel & Co., 461 N.W.2d 450 (Iowa 1990), we squarely addressed this issue. The employee's prior injury was work-related. In addition, there was no evidence that the prior injury was producing industrial disability. For these two reasons, we held that the apportionment rule did not apply. Id. at 453.

Celotex does not directly respond to the fact that Auten's two prior injuries that resulted in industrial disability were work-related. Instead, Celotex argues that it is illogical and unjust to require it to compensate Auten for all of his disability when a part of it was related to these two prior injuries, injuries for which he has already been compensated. In effect, Celotex concludes, the commissioner's award results in a double recovery for Auten.

From a logic and fairness standpoint, Celotex's argument has some merit. To answer it, we need to explore the apportionment rule's development and the reasons for it.

In Varied Enterprises, Inc., we relied heavily on Larson, The Law of Workmen's Compensation, in formulating our apportionment rule. See Varied Enters., Inc., 353 N.W.2d at 411 (citing 2 Arthur Larson, The Law of Workmen's Compensation § 59.22, at 10-365 (1981)) (discussing the total effect of two successive injuries). So we need to start there.

Apart from statute, in a situation of two successive work-related injuries, "the employer is generally held liable for the entire disability resulting from the combination of the prior disability and the present injury." 2 Arthur Larson, The Law of Workmen's Compensation § 59.00, at 10-492.329 (1994) [hereinafter Larson].

Larson gives this reason for not crediting the employer for the disability award on the prior disability:

The capacities of a human being cannot be arbitrarily and finally divided and written off by percentages. The fact that a man has once received compensation as for 50 percent of total disability does not mean that ever after he is in the eyes of compensation law but half a man, so that he can never again receive a compensation award going beyond the other 50 percent of total. After having received his prior payments, he may, in future years, be able to resume gainful employment. In the words of the Colorado court, he may have resumed employment as a "working unit." If so, there is no reason why a disability which would bring anyone else total permanent disability benefits should yield him only half as much. A similar principle may be applied to an individual member that has been restored in whole or in part.

Larson, § 59.42(g)(3), at 10-594-599 (citation omitted). See also Gray v. Carolina Freight Carriers, Inc., 105...

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    ...liable for the entire disability resulting from the combination of the prior disability and the present injury." Celotex Corp. v. Auten, 541 N.W.2d 252, 254 (Iowa 1995). In another opinion filed today, we applied this "full responsibility" rule, holding the employer liable for its employee'......
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