Annett Holdings, Inc. d/b/a TMC Transportation v. Nicholas Roberts

IN THE COURT OF APPEALS OF IOWA

No. 20-0155
Filed April 14, 2021

ANNETT HOLDINGS, INC. d/b/a TMC TRANSPORTATION,
Plaintiff-Appellant,

vs.

NICHOLAS ROBERTS,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, David Nelmark, Judge.

Annett Holdings, Inc. appeals the district court ruling awarding Nicholas

Roberts industrial disability and healing-period benefits. AFFIRMED.

Sasha L. Monthei, Columbus Junction, for appellant.

Laura Schultes of RSH Legal, P.C., Cedar Rapids, for appellee.

Considered by Bower, C.J., and Doyle and Mullins, JJ.
2

BOWER, Chief Judge.

Annett Holdings, Inc., doing business as TMC Transportation (TMC),

appeals the district court’s ruling on judicial review of a review-reopening decision

by the Iowa Workers’ Compensation Commissioner. TMC asserts the

commissioner erred in granting Nicholas Roberts additional healing-period

benefits and in finding a thirty percent industrial disability. We affirm the

commissioner’s decision.

I. Background Facts & Proceedings

TMC employed Roberts as an over-the-road flatbed truck driver. In addition

to driving, his duties included placing tarps over the truck loads to secure them.

While securing a load on November 15, 2010, Roberts injured his back. On

November 24, an MRI revealed a herniated disc and significant degenerative disc

disease.1

TMC declined to authorize care, and Roberts went to his family doctor. On

January 26, 2011, his doctor found Roberts had full range of motion and released

him to work with a lifting restriction, light duty requirements, and no prolonged

sitting or standing. Roberts’s employment with TMC ended shortly thereafter.

In March 2012, Roberts began working for Reliable Transport as a no-touch

truck driver.2 He worked there until July 10, 2015. The end of his employment

was unrelated to his prior work injury.

1 Roberts admitted prior back problems, but had been able to work without
restriction before November 15, 2010.
2 Roberts indicated as a no-touch driver he did not do any of the loading or

unloading of the freight—he just drove the truck.
3

In May 2012, Roberts was evaluated for an independent medical

examination (IME). The doctor found Roberts had a nine percent whole-person

impairment as a result of the November 2010 incident and opined Roberts reached

his maximum medical improvement (MMI) on January 26, 2011. The doctor

included permanent lifting restrictions.

In February 2013, Roberts sought additional treatment for back pain and

was prescribed narcotic medications and muscle relaxers. After another IME in

March, the doctor concluded Roberts had not yet reached MMI. The doctor placed

Roberts at ten percent impairment, but opined half of the impairment preexisted

the 2010 injury.

Roberts filed a petition for workers’ compensation benefits. The arbitration

decision, filed October 30, 2013, determined Roberts’s injury was work related and

he had not yet reached MMI, and ordered healing-period benefits from November

15, 2010, through January 25, 2011. Healing-period benefits were not awarded

for the period after January 25, 2011, because Roberts had been released to work

with restrictions. The decision was affirmed on intra-agency appeal to the

commissioner and upheld by the district court on judicial review in December 2014.

TMC did not appeal.3

Roberts underwent another IME in February 2015. Although Roberts

reported back pain and leg numbness, tests showed no abnormal findings. The

3 After the district court decision was final, TMC paid Roberts a permanent partial
disability lump-sum payment for a nine percent disability, with interest added for
the time between the 2011 MMI date and payment in March 2015.
4

doctor opined Roberts had no permanent impairment. The only work restriction

placed on Roberts concerned prescription medications.

At another examination in September 2015, Roberts claimed three months

of “markedly increasing” leg and back pain, and the doctor ordered an MRI of

Roberts’s back. After the MRI, on December 29, the doctor noted that while

Roberts’s disc herniation was gone, he had “advanced degenerative disc disease.”

The doctor released him to light duty work. No further treatments or medications

were recommended in December. Roberts was again declared to be at MMI as of

February 24, 2016, with a nine percent impairment rating.4

On May 27, 2016, Roberts filed an application for review-reopening. In

December 2017, the deputy commissioner awarded additional healing-period

benefits from July 11, 2015, to December 29, 2015.5 This period included the time

between Roberts losing his employment at Reliable Transport and the MMI

determination in December 2015. The deputy commissioner determined Roberts

had a thirty percent industrial disability and TMC was responsible for the cost of

Roberts’s narcotic/opioid medication.

The commissioner affirmed the industrial disability finding, giving

“considerable deference to findings of fact that are impacted by the credibility

findings, expressly or impliedly made, regarding claimant by the deputy

commissioner.” The commissioner did not, however, agree TMC should pay for

4 April and September 2015 toxicology screens showed no evidence of Roberts’s
prescribed medications, but he filled his prescriptions and reported to his
examining doctors he was taking the medications.
5 The deputy commissioner specifically found Roberts “to have low credibility” and

noted a number of inconsistencies between his testimony and the record.
5

the prescribed medication, noting studies described the medications as

“dangerous and unnecessary” and the record indicated Roberts was not taking

them.

As for the healing-period-benefits claim, the commissioner considered the

lifting restrictions still in place and concluded Roberts “was not medically capable

of returning to work [at a] substantially similar job with defendant-employer, and

was not at MMI.” The commissioner determined Roberts met the criteria for

healing-period benefits after his job with Reliable Transport ended under Iowa

Code section 85.34(1), adopting the healing-period benefits award proposed by

the deputy.

On judicial review, TMC challenged the healing period benefits awarded for

2015 and the commissioner’s industrial disability finding. Roberts challenged the

commissioner’s prescription medication ruling. The district court affirmed the

commissioner’s ruling on all three issues.

TMC appeals, challenging the additional healing-period benefits and the

level of industrial disability.

II. Scope and Standard of Review

“Judicial review of workers’ compensation cases is governed by Iowa Code

chapter 17A. On our review, we determine whether we arrive at the same

conclusion as the district court.” Warren Props. v. Stewart, 864 N.W.2d 307, 311

(Iowa 2015) (citation omitted).

A district court decision rendered in an appellate capacity is
examined for correction of errors at law. In making such a
determination, we apply the standards of Iowa Code section
17A.19[(10)], which provides an agency decision may be reversed
where substantial rights of a party have been prejudiced and the
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action is unsupported by substantial evidence or affected by errors
of law, to determine if our conclusion would be the same as that of
the district court.

Christensen v. Snap-On Tools Corp., 554 N.W.2d 254, 257 (Iowa 1996) (citation

omitted). “It is the commissioner’s duty as the trier of fact to determine the

credibility of the witnesses, weigh the evidence, and decide the facts in issue. The

reviewing court only determines whether substantial evidence supports a finding

‘according to those witnesses whom the [commissioner] believed.’” Arndt v. City

of Le Claire, 728 N.W.2d 389, 394–95 (Iowa 2007) (alteration in original) (citations

omitted).

“With respect to questions of law, we have stated that no deference is given

to the commissioner’s interpretation of law because the ‘interpretation of the

workers’ compensation statutes and related case law has not been clearly vested

by a provision of law in the discretion of the agency.’” Neal v. Annett Holdings,

Inc., 814 N.W.2d 512, 518 (Iowa 2012) (citation omitted). “We give deference to

the agency’s interpretation if the agency has been clearly vested with the

discretionary authority to interpret the specific provision in question. If, however,

the agency has not been clearly vested with the discretionary authority to interpret

the provision in question, we will substitute our judgment for that of the agency if

we conclude the agency made an error of law.” Id. (citation omitted).

III. Analysis

1. Additional healing-period benefits. TMC argues the commissioner erred

in interpreting Iowa Code section 85.34 to require the payment of healing-period

benefits to Roberts after his employment with Reliable Transport. Our supreme

court has found the legislature did not clearly vest the commissioner with authority
7

to interpret section 85.34, and we review his interpretation for correction of errors

at law. Waldinger Corp. v. Mettler, 817 N.W.2d 1, 7 (Iowa 2012). In our analysis,

we keep in mind the long-standing principle that the workers’ compensation act is

for the benefit of the worker and “should be, within reason, liberally construed.” Id.

at 9 (citation omitted).

Healing-period benefits are designed to “sustain[ ] the injured employee

during convalescence and disability from work.” Id. at 7. The employer owes the

employee healing-period compensation

beginning on the first day of disability after the injury, and until the
employee has returned to work or it is medically indicated that
significant improvement from the injury is not anticipated or until the
employee is medically capable of returning to employment
substantially similar to the employment in which the employee was
engaged at the time of injury, whichever occurs first.

Iowa Code § 85.34(1) (2015). “Compensation for permanent partial disability shall

begin at the termination of the healing period provided in subsection 1.” Id.

§ 85.34(2); see Evenson v. Winnebago Indus., Inc., 881 N.W.2d 360, 3774 (Iowa

2016).6

After achieving MMI, a claimant may be rendered temporarily disabled from

work due to the work-related injury and a new healing period may begin.

Waldinger, 817 N.W.2d at 8. “[T]he availability of a healing period remedy turn[s]

on whether a new period of disability from work” caused by the original injury

begins on the date of further treatment. See id. at 9. “[S]ection 85.34(1) leaves

6 The payment of permanent partial disability benefits does not preemptively
terminate healing-period benefits if none of the three statutory indicators exist. See
Evenson, 881 N.W.2d at 372 (considering when permanent disability benefits are
due in the event of multiple healing periods); Waldinger, 817 N.W.2d at 9.
8

room for the possibility that continuing medical treatment provided by the employer

under section 85.27 can result in a series of intermittent invasive treatments,

periods of temporary disability from work and convalescence, serial MMI dates,

and revised permanent disability ratings following a single work-related injury.” Id.

TMC argues Roberts’s employment did not end due to his injury, therefore

he does not meet the criteria for a second healing period. In Waldinger, the court

noted “some attempts to return to work are unsuccessful and temporary,” and

concluded the legislature did not intend to deny an employee additional healing-

period benefits because of an unsuccessful return to work. Id.

The commissioner opined that after Roberts’s employment with Reliable

Transport ended, “the only relevant factors are those set out in Iowa Code section

85.34(1): whether claimant had returned to work; was medically capable of

returning to substantially similar work; or was at MMI.” Because none of the factors

were met from July 11 to December 29, 2015, healing-period benefits were

warranted.

On our review, we find no legal error in the commissioner’s analysis. We

affirm the award of healing-period benefits.

2. Industrial disability. TMC claims the commissioner’s thirty percent

industrial disability award cannot be reconciled with the nine percent functional

impairment rating provided by the doctors and Roberts’s salary at Reliable

Transport.

“Industrial disability measures an injured worker’s lost earning capacity.”

Second Injury Fund of Iowa v. Nelson, 544 N.W.2d 258, 266 (Iowa 1995). The

focus of an industrial disability determination is the ability of the claimant to be
9

gainfully employed; it is not merely an evaluation of what the claimant can or

cannot do. Id. We inquire whether “there [are] jobs in the community that the

employee can do for which the employee can realistically compete.” Thornton v.

Am. Interstate Ins. Co., 940 N.W.2d 1, 37 (Iowa 2010) (alteration in original)

(citation omitted). This requires consideration of those factors that bear on the

claimant’s employability, including “age, intelligence, education, qualifications,

experience, and the effect of the injury on the worker’s ability to obtain suitable

work.’” Guyton v. Irving Jensen Co., 373 N.W.2d 101, 103 (Iowa 1985).

The functional impairment as measured by an impairment rating is only one

factor considered in determining industrial disability and the reduction in earning

capacity. See Hill v. Fleetguard, Inc., 705 N.W.2d 665, 673 (Iowa 2005). Here,

the commissioner also considered Roberts has limited education, most of his

experience is truck driving, Roberts has demonstrated an ability to work within his

restrictions, and he has potential for retraining. Roberts’s success in finding

employment with an equal-or-better salary is not determinative. Geographic

location is a relevant consideration in determining workers’ compensation benefits,

as is the availability of suitable work. Neal, 814 N.W.2d at 522–24. Roberts’s

employment at Reliable Transport occurred in a different state with a different

market than his employment at TMC and does not reflect directly on Roberts’s

earning capacity in the same or similar job in the community.

Under all these facts, we find substantial evidence supports the

commissioner’s industrial disability determination.

AFFIRMED.