Schoenberger v. Acuity, A Mut. Ins. Co.
| Decision Date | 12 April 2023 |
| Docket Number | 22-1613 |
| Parties | SHANE A. SCHOENBERGER, Petitioner-Appellant, v. ACUITY, A MUTUAL INSURANCE COMPANY, and ZEPHYR ALUMINUM PRODUCTS, Respondents-Appellees. |
| Court | Iowa Court of Appeals |
Appeal from the Iowa District Court for Polk County, David Nelmark Judge.
A claimant appeals the district court's error-preservation finding on judicial review of workers' compensation proceedings. REVERSED AND REMANDED.
Thomas M. Wertz and Mindi M. Vervaecke of Wertz Law Firm, Cedar Rapids, for appellant.
Stephanie L. Marett of Nyemaster Goode, P.C., Des Moines, for appellee.
Considered by Vaitheswaran, P.J., and Greer and Chicchelly JJ.
This appeal concerns the narrow question of error preservation in the administrative law context. Shane Schoenberger contends the district court erred in finding he did not preserve error on the issue of whether he was entitled to industrial disability benefits for a combined shoulder and arm injury. Upon our review of the proceedings before the Iowa Division of Workers' Compensation, we find the issue was preserved. Accordingly, we reverse and remand to the agency for adjudication on the merits of this issue.
Since 2001, Schoenberger has worked through a union as a journeyman carpenter for various employers. Except for intermittent layoffs, he has worked for Zephyr Aluminum Products since 2007. Zephyr is insured by its co-defendant Acuity. On September 18, 2017, Schoenberger sustained an injury while working for Zephyr. After physical therapy and a subacromial injection failed to resolve his shoulder pain, Schoenberger underwent arthroscopic surgery on his left shoulder, which consisted of labral debridement with biceps tenotomy, arthroscopic acromioplasty with conversion of type I acromion, and a mini-open rotator cuff repair. He spent some time off work altogether, returned part-time on light duty, and eventually resumed working full-time for Zephyr with some permanent restrictions.
Schoenberger applied for permanent partial disability benefits as a result of the injury. The parties obtained a total of three independent medical evaluations between November 2018 and August 2020, which each opined as to the percentages of impairment to Schoenberger's left upper extremity and body as a whole. Notably, one of the examining physicians explained that Schoenberger's arm would not be as functional but did not distinguish the impairment rating beyond the upper-left-extremity or body-as-a-whole categories. Schoenberger's reported symptoms ranged from left shoulder and biceps pain to numbness in the triceps area, tingling from the elbow through the left hand, and problems working at or above chest level, gripping and grasping, and using power tools. Testing in October 2019 showed ulnar neuropathy at the left elbow, which the subsequent medical evaluation opined was a sequela to the work injury and related surgery.
On June 21, 2021, the deputy workers' compensation commissioner filed an arbitration decision, which found that Schoenberger failed to prove the stipulated work injury extended beyond his left shoulder into the body as a whole, and therefore he was not entitled to receive industrial disability benefits. Pursuant to Iowa Code section 85.34(2)(n) (2017), the deputy commissioner found
Schoenberger sustained permanent scheduled member disability to nineteen percent of the left shoulder, and this disability entitled Schoenberger to receive seventy-six weeks of permanent partial disability benefits.
Schoenberger appealed to the workers' compensation commissioner, arguing the deputy commissioner erred in finding his injury did not extend beyond the left shoulder and qualify for industrial disability benefits under section 85.34(2)(v). The commissioner filed an appeal decision on March 7, 2022. Although the commissioner's decision affirmed the finding that Schoenberger failed to prove the injury extends beyond his left shoulder into the body as a whole and therefore does not qualify for industrial disability benefits, the decision failed to specifically address Schoenberger's assertion that his injury qualifies for industrial disability benefits because it constitutes a combined shoulder and arm injury. Because Schoenberger had not previously and explicitly raised the question of a combined shoulder and arm injury or secured a ruling thereon, the district court found that error on this issue was not preserved and affirmed the commissioner's decision on judicial review. Schoenberger filed a timely appeal.
"We review a district court decision reviewing agency action to determine if we would reach the same result as the district court in our application of the Iowa Administrative Procedure Act." Staff Mgmt. v. Jimenez, 839 N.W.2d 640, 653 (Iowa 2013). "Further, 'we review the commissioner's interpretation of Iowa Code chapter 85 for correction of errors at law instead of deferring to the agency's interpretation' because the legislature has not clearly vested the commissioner with authority to interpret that chapter." Chavez v. MS Tech. LLC, 972 N.W.2d 662, 666 (Iowa 2022) (citation omitted). "Nevertheless, we accept the commissioner's factual findings when supported by substantial evidence." Id. (citation omitted) (cleaned up).
Schoenberger argues that he properly preserved error because different error preservation rules apply in the administrative law context. We agree with this premise but disagree that it leads directly to Schoenberger's requested result.
Jimenez, 839 N.W.2d at 647. Based on this principle, Schoenberger contends that raising his industrial disability argument based on the combination of shoulder and arm injuries on appeal to the commissioner, and thereby giving the defendants an opportunity to respond, was sufficient. We acknowledge that this scenario could be true in some instances. However, another key element is necessary: having raised the issue at the earliest possible opportunity. See Off. of Consumer Advoc., 465 N.W.2d at 283 ( issue preserved despite not being initially plead before the agency because it was raised to the agency "at the earliest possible opportunity").
Consistent therewith, rule 876-4.28(7) of the Iowa Administrative Code describes the scope of issues on appeal before the workers' compensation commissioner:
The appeal will consider the issues presented for review by the appellant and cross-appellant in their briefs and any issues necessarily incident to or dependent upon the issues that are expressly raised, except as provided in rule 876-4.29(86,17A). An issue will not be considered on appeal if the issue could have been, but was not, presented to the deputy workers' compensation commissioner. An issue raised on appeal is decided de novo and the scope of the issue is viewed broadly. If the ruling from which the appeal was taken made a choice between alternative findings of fact, conclusions of law, theories of recovery or defenses and the alternative selected in the ruling is challenged as an issue on appeal, de novo review includes reconsideration of all alternatives that were available to the deputy.
(emphasis added). This rule highlights that failing to obtain a ruling from the deputy commissioner is not fatal so long as the matter was raised. See Boehme v. Fareway Stores, Inc., 762 N.W.2d 142, 146 (Iowa 2009) (clarifying that presentation to the deputy commissioner does not require obtaining a ruling from the deputy in order to preserve the issue for further review).
Here, Schoenberger's claim to the deputy commissioner centered on whether his injury was to the scheduled member shoulder or extended beyond it. The deputy commissioner summarized the issue as follows:
(citing Iowa Admin. Code r. 876-4.28(7)). However, we find that the broad scope to be embraced on appeal pursuant to rule 876-4.28(7) supports otherwise.
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