Ellingson v. Fleetguard, Inc.

• Decision Date: 09 September 1999
• Docket Number: No. 97-1649.,97-1649.
• Citation: 599 N.W.2d 440
• Parties: Linda R. ELLINGSON, Appellant, v. FLEETGUARD, INC., and Liberty Mutual Insurance Company, Appellees.
• Court: Iowa Supreme Court

599 N.W.2d 440

Linda R. ELLINGSON, Appellant, v. FLEETGUARD, INC., and Liberty Mutual Insurance Company, Appellees.

No. 97-1649.

Supreme Court of Iowa.

September 9, 1999.

Rehearing Denied October 29, 1999.

Mark S. Soldat, Algona, for appellant.

Tito Trevino of the Trevino Law Office, Fort Dodge, for appellees.

Considered by LARSON, P.J., and CARTER, SNELL, TERNUS, and

HARRIS,¹ JJ.

CARTER, Justice.

An injured worker, Linda R. Ellingson, appeals from a judgment following judicial review of a ruling of the Industrial Commissioner. She challenges the findings and conclusions concerning an alleged cumulative injury, the extent of permanent partial disability, benefits owed, and the denial of interest and penalty on alleged late payments. The employer, Fleetguard, Inc., and its workers' compensation insurance carrier, Liberty Mutual Insurance Company, have cross-appealed, challenging the court's determination of when the healing period ended and the extent of disability that the Industrial Commissioner found to have occurred from Ellingson's work-related injury.

The district court affirmed the Industrial Commissioner's decision in part, reversed it in part, and remanded the case to the commissioner for further findings. After review of the record and considering the arguments presented, we affirm the judgment of the district court in part, reverse it in part, and order the remand of the case to the Industrial Commissioner for further proceedings consistent with our opinion.

Ellingson's employment at Fleetguard commenced in 1968. She was nineteen years of age at the time. She had an eleventh grade education and her prior work history had been as a waitress and in other factory production jobs. On January 4, 1985, while working for Fleetguard, a forty-pound box fell on her head. She thereafter suffered from neck, head, and arm pain that required surgeries in March 1990 and December 1992.

A synopsis of Ellingson's alleged work interruptions following her January 4, 1985 injury includes those episodes described below. Our list may not include all such claims but is designed to highlight the substantial number of work interruptions that have been asserted by Ellingson. Within the commissioner's limitation of her disability claim to a single injury, it is disputed whether all of these alleged interruptions were attributable to the January 4, 1985 injury found to exist or an aggravation thereof. The commissioner made no dispositive factual findings on these disputed issues, a circumstance that prompted the district court to order a remand.

When the box struck Ellingson on January 4, 1985, she lost two working hours on that day and, in accordance with her doctor's directions, did not return to work until January 7, 1985. She was taken off work pursuant to doctor's directions between March 9, 1985, and April 17, 1985, due to neck, head, and arm pain. When she returned to work on April 18, 1985, she was placed on light duty involving the writing of tickets in a warehouse at a lower wage rate than her normal pay.

Between June 16, 1987, and August 16, 1987, Ellingson's doctor again took her off work due to continuing neck and arm pain. On August 17, 1987, she returned to work working four to six hours per day and was not medically authorized to return to eight-hour days until January 5, 1988. She was again taken off work by doctor's directions between May 3 and November 6, 1989.

On February 2, 1990, a diagnostic procedure revealed that Ellingson had a significantly degenerated disk at the C-6, 7 level. On March 5, 1990, this was surgically treated by an anterior cervical discectomy and fusion. Following this surgery, she was off work pursuant to doctor's orders until September 4, 1990. At this time, she returned to work on a limited basis.

On November 6, 1991, Ellingson's work activities were restricted by her doctor based on continuing neck and arm pain. Fleetguard then moved her to office work. Ellingson was again off work due to neck and arm pain between February 25 and March 15, 1992, and April 7 and April 13, 1992. On November 23, 1992, an MRI revealed a central protrusion of her C-5, 6 disk. This prompted another anterior cervical discectomy and fusion and accompanying bone graft performed in December 1992.

Ellingson returned to work on April 19, 1993, and from that time until May 24, 1993, worked only partial days. By May 24, 1993, her condition had again regressed, and she missed work from that date until July 25, 1993. Between July 26, 1993, and the arbitration hearing on September 15, 1993, she worked partial days except for three work days that she missed entirely.

The deputy industrial commissioner who heard the arbitration petition found that Ellingson had sustained a permanent partial disability of twenty percent of the body as a whole. The deputy also ordered healing-period benefits for those full days missed from work on account of the January 4, 1985 injury up to the time that Ellingson attained maximum medical improvement. Temporary partial disability payments were ordered for those days she worked less than eight hours under medical restriction prior to attaining maximum medical improvement. The deputy did not fix the times for which healing-period and temporary partial disability payments were owing and assumed that the parties would be able to work that matter out. The deputy denied Ellingson's claim for late-payment penalties under Iowa Code section 86.13 (1993). The Industrial Commissioner affirmed the deputy's decision except for an adjustment of the time for termination of the healing period. The commissioner also did not fix the times for which healing-period and temporary partial disability payments were owing.

On judicial review, the district court upheld the commissioner's award of permanent partial disability benefits, reinstated the deputy's determination of when the healing period terminated (an issue on which appellees have cross-appealed), and ordered a remand to the commissioner with directions to make specific findings concerning the times for which healing-period and temporary partial disability payments were owing. Claims for interest and penalties involving those payments were to abide those determinations of benefits owed. In so ruling, the district court made certain rulings concerning evidence that had been excluded by the commissioner. This will expand the record on remand. The commissioner's rejection of other interest and penalty issues raised by Ellingson was upheld. Other facts that are material to our opinion will be discussed in our review of the legal issues presented.

I. Ellingson's Appeal.

Ellingson's appeal challenges: (1) the commissioner's finding, upheld by the district court, that she had not sustained a cumulative injury; (2) the commissioner's finding, upheld by the district court, that the extent of her permanent partial industrial disability was twenty percent of the body as a whole; (3) the calculation of benefits based on the percentage of permanent disability found to exist; (4) substantive and procedural rulings of the commissioner and court on temporary disability and healing-period benefits; and (5) failure of the commissioner or court to award interest and penalties for alleged late payment of benefits.

A. The cumulative-injury claim. Ellingson has claimed in both the administrative proceeding and the district court that she suffered two separate compensable injuries while working at Fleetguard. These alleged injuries are (1) the injury incurred from the falling box on January 4, 1985, and (2) a distinct and discreet cumulative neck injury from which an episode of disability was manifested on June 17, 1992. The Industrial Commissioner found that the only compensable injury established by the evidence was the January 4, 1985 injury. The cumulative-injury doctrine was first recognized by this court in McKeever Custom Cabinets v. Smith, 379 N.W.2d 368, 373-74 (Iowa 1986). It relates to the type of injury that develops over time from performing work-related activities and ultimately produces some degree of industrial disability. For purposes of applying a statute of limitations, wage base, and other matters that depend on a time of injury, some date must be recognized as the time of injury if a cumulative injury is found to exist. Our cases hold that the date of a cumulative injury is deemed to be the time at which both the fact of disability and the causal relationship of the disability to the employment would be apparent to a reasonable person. George A. Hormel & Co. v. Jordan, 569 N.W.2d 148, 151 (Iowa 1997); Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824, 829 (Iowa 1992). This formula for recognizing a time of injury does not require any significant causal occurrence on the date of injury thus established. Tasler, 483 N.W.2d at 829.

In seeking to establish two work-related injuries, rather than one, Ellingson advances the following argument:

It just does not make sense, in light of the whole record, to conclude that a box falling on Ellingson's head in 1985, thereby compressing her degenerating neck, was the only substantial factor in causing the conditions which mandated both the 1990 and 1992 cervical surgeries. Manifestly, aggravating work activities also were substantial factors.

(Emphasis added.) Speaking with commendable candor, Ellingson freely admits that her cumulative-injury claim is designed to produce a new date of injury that will provide a higher wage base for computing her compensation.

To the extent that the evidence reveals a subsequent aggravation of Ellingson's January 4, 1985 injury, this is a relevant circumstance in fixing the extent of her permanent disability. Aggravating work activities were doubtless a causal factor with respect to the total degree of disability that she exhibited at the time of the hearing. It is clear, however, that she may not establish a cumulative-injury claim by merely asserting...