Villela v. Lund Food Holdings, Inc., No. 7-191/06-0367 (Iowa App. 6/27/2007)
| Decision Date | 27 June 2007 |
| Docket Number | No. 7-191/06-0367,7-191/06-0367 |
| Parties | MINERVA VILLELA, Petitioner-Appellant/Cross-Appellee, v. LUND FOOD HOLDINGS, INC., LUND FOOD, INC., TRAVELERS INSURANCE COMPANY, Respondents-Appellees/Cross-Appellants, FIREMAN'S FUND INSURANCE COMPANY and SECOND INJURY FUND OF IOWA, Respondents-Appellees. |
| Court | Iowa Court of Appeals |
Appeal from the Iowa District Court for Winnebago County, James M. Drew, Judge.
Minerva Villela appeals from the district court's ruling on judicial review affirming the workers' compensation commissioner's decisions on her claims for workers' compensation benefits. AFFIRMED.
Mark S. Soldat, West Des Moines, for appellant.
Thomas J. Miller, Attorney General, Julie A. Burger, Assistant Attorney General, for appellee Second Injury Fund of Iowa.
Jeffrey W. Lanz of Huber, Book, Cortese, Happe & Lanz, P.L.C., West Des Moines, for appellee Fireman's Fund Insurance Company.
John E. Swanson of Hansen, McClintock & Riley, Des Moines, for appellees Lund Food Holdings, Inc. and Travelers Insurance Company.
Heard by Mahan, P.J., and Eisenhauer and Baker, JJ.
Minerva Villela appeals from the district court's ruling on judicial review affirming the workers' compensation commissioner's decisions on her claims for benefits.1 She asserts the district court erred in affirming the commissioner's (1) dismissal of her second injury fund claims, (2) failure to award temporary partial disability benefits for periods she worked under restricted duty, (3) failure to award permanent partial disability benefits for various work injuries, (4) finding she suffered a thirty percent industrial disability, (5) computation of weekly compensation rates based on her leaving work early without pay, (6) refusal to award certain transportation expenses, and (7) failure to award additional penalty payments. Lund Food (Lund) and Travelers cross-appeal the industrial disability award and the selection of February 22, 2000 as an injury date.
Minerva Villela has been employed with Lund, a food processing facility, and its predecessor, Byerly's, since February 1990. She has worked primarily in the vegetable preparation department. Her work involves repetition with her hands and arms and lifting, pushing, and pulling materials. Villela began having hand and arm pain within a year of employment at Lund.
Prior to the work-related injuries at issue in this appeal, Villela experienced significant physical problems. She was diagnosed as diabetic in 1977. In 1986, she suffered a fracture to her left arm, and she fractured her ankle in 1992. She has previously sought treatment for tendinitis and arm, finger, and hand numbness, swelling and pain. In 1996, she developed an ulcer on her right foot.
Between September 1997 and November 2000, Villela suffered eight separate injuries, which are the subject of this appeal. Most relate to the cumulative injury of her neck, shoulders, arms, fingers, and wrists. Her July 2000 injury occurred when she was struck in the head by a door, causing headaches, dizziness, and memory loss. She has seen several health care providers and been diagnosed with various conditions, including bilateral carpal tunnel syndrome and right lateral epicondylitis (tennis elbow). Health care providers have repeatedly advised her to end her repetitive work. Villela is unable to leave her job for financial reasons. In January 2000, she was assigned to lighter duty to accommodate her various hand and arm problems, but she returned to full duty in March 2002, when Lund refused to continue the accommodation.
In December 2000, Villela filed workers' compensation claims against Lund and its insurers and Iowa's second injury fund. Because permanency issues remained on two injuries, the proceedings were bifurcated and resulted in two decisions by a deputy commissioner, filed on July 29, 2002, and November 26, 2003. Villela appealed. In decisions filed May 30, 2003, and August 16, 2005, the workers' compensation commissioner affirmed the deputy and (1) awarded Villela permanent partial disability benefits based on a fifteen-percent body as a whole impairment caused by carpal tunnel syndrome, (2) found she sustained a thirty-percent industrial disability caused by her regional pain condition, with an injury date of February 22, 2000, (3) refused to award permanent partial disability benefits for the other injury dates, (4) denied the second injury fund claim, (5) refused to award temporary partial disability benefits for periods she worked under restricted duty, (6) affirmed the use of a weekly compensation rate that considered voluntary absences from work, (7) refused to reimburse $9.86 for meal expenses, (8) refused to award additional penalty payments, and (9) selected February 22, 2000 as an appropriate injury date. Villela petitioned for judicial review. The district court affirmed the commissioner's decision. Villela appeals. Lund and Travelers cross-appeal.
We review decisions of administrative agencies for correction of errors at law. Kostelac v. Feldman's, Inc., 497 N.W.2d 853, 856 (Iowa 1993). Agency decisions carry the weight of a jury verdict. Id. We are bound by the commissioner's findings of fact if supported in the record as a whole and will reverse the agency findings only if we determine that substantial evidence does not support them. Meyer v. IBP, Inc., 710 N.W.2d 213, 218 (Iowa 2006); see also Terwilliger v. Snap-On Tools Corp., 529 N.W.2d 267, 271 (Iowa 1995) (). The definitive question is not whether the evidence supports a different finding, but whether the evidence supports the findings that were actually made. Meyer, 710 N.W.2d at 218.
"We are not bound, however, by an agency's erroneous conclusions of law." Kostelac, 497 N.W.2d at 856. We allocate some degree of discretion in our review of the application of the law to the facts, but not the breadth of discretion given to the findings of fact. Meyer, 710 N.W.2d at 218-19.
Villela argues the district court erred in affirming the commissioner's decisions on seven issues. Lund and Travelers contend the court erred on two.
Villela asserts the district court erred in affirming the commissioner's dismissal of her second injury fund claims. The fund's primary purpose is to encourage employers to hire persons with disabilities by reducing the risk of increased workers' compensation costs that might otherwise be associated with hiring a person who has previously suffered a "permanent disability." Anderson v. Second Injury Fund, 262 N.W.2d 789, 792 (Iowa 1978). The fund may be liable for a portion of an industrial disability caused by two successive injuries
when (1) the employee has either lost or lost the use of a hand, arm, foot, leg, or eyes; (2) the employee sustained the loss, or loss of use of another such member or organ through a work related injury; and (3) there is some permanent disability from the injuries.
Haynes v. Second Injury Fund, 547 N.W.2d 11, 13 (Iowa Ct. App. 1996); see also Iowa Code § 85.64 (1999). The prior loss of use need not be work related, and it does not have to be a total loss of use. Second Injury Fund v. Shank, 516 N.W.2d 808, 812-13 (Iowa 1994). While an impairment rating or expert medical evidence are generally used to establish the permanency of an injury, they are not always required. Haynes, 547 N.W.2d at 13-14.
Villela fractured her ankle in a nonwork-related accident in 1992. She had a subsequent work-related injury in 1996, when she bumped her leg against a pallet and was treated for the resulting ulcer and infections. In affirming the commissioner's decision, the district court found that, although she had obviously injured her foot, there had been no permanent impairment or loss of use. We agree. While the record indicates Minerva has experienced scarring, decreased sensation, swelling, and pain in her left ankle, the evidence does not show Villela had any significant loss of use of her ankle or any restrictions on the use of her leg. These injuries are not the type of "permanent disability" injury for which the second injury fund was intended. See Anderson, 262 N.W.2d at 791 (). We find no error in the denial of her second injury fund claim.
Villella contends the district court erred in affirming the commissioner's failure to award temporary partial benefits under Iowa Code section 85.33 without applying the statutory formula for calculating such benefits. Villela has been restricted in her duties on an intermittent basis. The commissioner found there was no showing that Villela's hours of work or rate of pay were reduced due to her work restrictions and determined the deputy correctly denied benefits. The district court held that, even though it was "possible that the commissioner and deputy used a `shortcut' to analyze this issue, . . . any error that might have been committed in applying the statute was harmless."
Temporary partial disability benefits are payable because of a reduction in an employee's earning ability when suffering from an injury. If an employee is temporarily, partially disabled and the employer offers work within the employee's restrictions, the employee must accept the work and may then be compensated with temporary partial benefits. Iowa Code § 85.33(3). If the employee refuses the suitable work, "the employee will not be compensated with temporary partial .. . benefits during the period of the refusal." Id. Iowa Code section 85.33(2) provides for benefits for a "temporary partial reduction in earning ability as a result of the employee's temporary partial disability." Because the reduction in earning ability must be ...
To continue reading
Request your trial