Thilges v. Snap-On Tools Corp.

• Decision Date: 29 March 1995
• Docket Number: No. 93-1354,SNAP-ON,93-1354
• Citation: 528 N.W.2d 614
• Parties: Ruth A. THILGES, Appellant, v.TOOLS CORPORATION and Royal Insurance Company, Appellees.
• Court: Iowa Supreme Court

Page 614

528 N.W.2d 614

Ruth A. THILGES, Appellant, v. SNAP-ON TOOLS CORPORATION and Royal Insurance Company, Appellees.

No. 93-1354.

Supreme Court of Iowa.

March 29, 1995.

Mark S. Soldat, Algona, for appellant.

Paul C. Thune, Des Moines, for appellees.

Considered by HARRIS, P.J., and CARTER, NEUMAN, ANDREASEN, and TERNUS, JJ.

CARTER, Justice.

This appeal involves judicial review of the Industrial Commissioner's action in fixing workers' compensation benefits based on a cumulative injury. The proceeding was brought pursuant to Iowa Code section 17A.19 (1991). The district court upheld the commissioner's award of benefits, interest, and penalties in all respects except the computation of the appropriate wage rate. ¹ Both the employee, petitioner Ruth A. Thilges, and the employer and insurance carrier, Snap-On Tools Corporation and Royal Insurance Company, appeal from that portion of the district court's order that was adverse to them. After reviewing the record and considering the arguments presented, we affirm the district court's order on both appeals.

Petitioner was in good health when she started working for Snap-On Tools in April 1978. She began experiencing pain in her shoulders, hands, and back as early as December 1985. In July 1987, she had carpal tunnel surgery on her right hand, shoulder treatments in October, and carpal tunnel surgery to her left hand in December. In February 1988, she had surgery related to de Quervain Syndrome in her left thumb and an impingement syndrome in her right shoulder. In May 1988, petitioner was released to work four hours per day with permanent restrictions against repetitive use of her right upper extremity above chest level. She increased work to eight hours per day by June 15, 1988.

Petitioner missed work for fourteen days in September 1988 because of her left thumb. In November 1988, a physician treating her determined that she had a nine percent permanent impairment to her upper right extremity. In June 1989, another physician determined she had a four percent permanent impairment of her left thumb and a five percent permanent impairment of each upper extremity.

Petitioner filed five petitions with the commissioner seeking to establish separate industrial injuries. At the time of the hearing before the agency, the employer had accommodated petitioner's work restrictions and her earnings were not reduced as a result of that accommodation.

After hearing the evidence, the deputy commissioner found, among other things, that petitioner's alleged injuries of August 5, 1986, June 3, 1987, and December 4, 1987, constituted one cumulative compensable injury that occurred on July 8, 1987. The proposed decision found the employer was subject to a fifty percent penalty for failing to pay permanent partial disability based on scheduled member injuries when it received the impairment ratings from the treating physicians. The commissioner adopted the proposed decision of the deputy, except as to the amount of healing-period compensation. As to that element, the commissioner granted additional allowances favorable to petitioner.

I. Commissioner's Determination of Anticipated Loss of Earning Capacity.

Petitioner argues that the finding by the commissioner of a twenty percent permanent partial disability is in error because, in considering her anticipated loss of future earning capacity, the commissioner refused to consider lost earning capacity beyond the time proximate to when the hearing was held. She contends that loss of earning capacity should be established with reference to loss of earnings that the injured employee will experience over that person's lifetime. In her view, the percentage of permanent partial disability should be expressed by a fraction in which anticipated lifetime earnings with the injury is the numerator and anticipated lifetime earnings without the injury is the denominator. The commissioner, she argues, did not use that approach and viewed loss of earning capacity in terms of the loss of immediate periodic earning potential if the petitioner were forced to seek work in the competitive job market at the time of the hearing without regard to the accommodations provided by her existing employer.

We have recognized that, in determining the extent of a claimant's body-as-a-whole industrial disability, the question is "the extent to which the injury reduced [the claimant's] earning capacity." Guyton v. Irving Jensen Co., 373 N.W.2d 101, 104 (Iowa 1985). In considering the matter in Guyton, we stated:

The question is the extent to which the injury reduced Guyton's earning capacity. This inquiry cannot be answered merely by exploring the limitations on his ability to perform physical activity associated with employment. It requires consideration of all the factors that bear on his actual employability.

Id. In our earlier decision of Doerfer Division of CCA v. Nicol, 359 N.W.2d 428 (Iowa 1984), we observed that the matters to be considered in this regard include age, education, qualification, experience, and inability due to injury, to engage in the employment for which the claimant is fitted. Id. at 438.

The arbitration decision of the deputy commissioner, which was adopted as the final agency determination of the issue stated:

In the competitive employment market a person in their mid-40s who has had a de Quervain release of the left thumb, bilateral carpal tunnel surgery on each hand and wrist, and a shoulder decompression of the right shoulder, who is restricted from no repetitive work above the chest level, will find it difficult to find employment when these factors are considered in conjunction with claimant's education, past employments and lack of transferrable skills. Employer's accommodation for claimant's permanent impairments and permanent restrictions and other bodily complaints will not necessarily transfer, however, to the competitive labor market as a whole.... Claimant is not likely to find other employers in the competitive employment market as understanding, cooperative and helpful as this employer has been.... For these reasons claimant is entitled to an industrial disability allowance in excess of her permanent impairment rating.

We are satisfied that the appropriate factors relating to petitioner's loss of earning capacity were considered by the commissioner.

In considering petitioner's argument, we are satisfied that the commissioner was correct in viewing loss of earning capacity 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. That characterization of loss of earning capacity is consistent with our recognition in ENT Associates v. Collentine, 525 N.W.2d 827 (Iowa 1994), that a change in earning capacity may be made the subject of a review reopening proceeding in which permanent partial disability benefits may be increased without any showing in a change of physical condition. Id. at 829. The result approved in Collentine strongly suggests that an injured employee's earning capacity for purposes of fixing the percentage of permanent partial disability is based on present conditions and does not focus on the employee's remaining working future in its entirety. We find no basis for disturbing the commissioner's award of permanent partial disability benefits.

II. Entitlement to Wages Lost in Seeking Medical Care Not Approved by Employer.

During her hearing before the commissioner, petitioner requested she be awarded compensation for those occasions when she was absent from work in order to attend medical appointments for her work-related injuries. These appointments were not arranged for or approved by her employer.

It is provided in Iowa Code section 85.39 (1991) that,

[i]f an employee is required to leave work for which the employee is being paid wages to attend the requested examination, the employee shall be compensated at the employee's regular rate for the time the employee is required to leave work....

Id. We believe that section 85.39 was designed for those occasions when the employer requests that the employee submit to an exam by a physician of the employer's choosing. Petitioner does not meet the conditions for benefit...