The Waldinger Corporation, Emcasco Insurance Company and Second Injury Fund of Iowa v. Michael Mettler, No 10-0502  (Supreme Court of Iowa)

[RULING AFFIRMING INTERMITTENT HEALING PERIODS, INCLUDING FOR THOSE PERIODS OCCURRING AFTER AN ASSESSMENT OF MMI AND/OR A RETURN TO WORK]

The Claimant, Michael Mettler began working as a plumber in 1969, becoming a journeyman after five years. He joined in the Army in 1980 and while there, fell from a stepladder, landing on his elbows which broke both of his upper extremities and required surgery. He also injured his right ankle during his service time. He was honorably discharged in 2001.

 

After his discharge, the Claimant went to work as a union plumber for Waldinger Corporation. Soon after, the Claimant began to complain of pain in his right ankle which he believe was caused by walking on uneven construction sites and climbing ladders. It was stipulated that the Claimant had sustained an injury to his right lower extremity on August 9, 2001. In January of 2002, the Claimant was diagnosed with posterior talar dome lesions by Dr. Lee.

 

The Claimant ultimately underwent surgery with Dr. Lee on February 6, 2002. He returned to work on May 10, 2002. In July of 2002, the Claimant again saw Dr. Lee complaining of right ankle discomfort. A second surgery was performed, and Dr. Lee noted significant degenerative changes during the arthroscopic procedure and that the Claimant’s ankle would get progressively worse over time. The Claimant was released to work on October 11, 2002 and told that he had reached maximum medical improvement on November 15, 2002. Dr. Lee assigned the Claimant five percent impairment to the right lower extremity.

 

In February of 2003, the Claimant turned his ankle and returned to Dr. Lee. In early 2004, the Claimant underwent a series of injections with Dr. Lee which provided no relief to the Claimant. Dr. Lee informed the Claimant that he should limit his activity on the right ankle as much as possible and told the Claimant work in a seated position was most appropriate for him.

 

In July of 2004, Dr. Lee performed a second right ankle arthroscopy upon the Claimant. The Claimant responded well to this surgery and returned to work with the employer after a brief healing period. Dr. Lee placed the Claimant at maximum medical improvement on April 6, 2005 and opined that he believed the Claimant would continue to experience ankle problems in the future and have worsening degenerative changes which may require fusion or replacement. He assigned the Claimant seven percent impairment to the right lower extremity.

 

The Claimant again presented to Dr. Lee with right ankle complaints on June 30, 2005; and in September of 2005, opined that a fusion or replacement were among the possible treatments. The Claimant then underwent an IME with Dr. Kuhnlein who stated the Claimant had reached MMI and would need right ankle arthrodseis in the future. He assigned the Claimant thirteen percent impairment to the right lower extremity.

 

The Claimant’s employment with Waldinger ended in 2006; however he continued to work as a plumber for other employers. In October of 2006, he filed a workers’ compensation petition against Waldinger and seeking benefits from the Second Injury Fund.

 

The Claimant was then seen again by Dr. Lee in July of 2007. At that point, Dr. Lee recommended another ankle arthroscopy. This third arthroscopy was performed on September 18, 2007. The Claimant was then returned to work without restriction on December 7, 2007. In April of 2008, Dr. Lee opined that the Claimant’s right ankle condition was the result of the August 9, 2001 work related injury and assessed the Claimant at fifteen percent impairment of the right lower extremity. He further recommended the Claimant be restricted to sedentary work.

 

After a hearing and intra-agency appeal, the Commissioner found the Claimant reached MMI on April 6, 2005 and awarded benefits based upon a scheduled loss of fifteen percent of the right lower extremity. It was further ordered that the employer pay healing period benefits for the period from the third arthroscopic surgery, September 18, 2007 until the Claimant returned to work on December 7, 2007. The Commissioner also found the Claimant entitled to Second Injury Fund benefits.

 

On appeal, the district court affirmed the commissioner’s award of lower extremity disability and rejected the employer’s contention that the lower extremity disability should be apportioned due to the fact the Claimant lost part of the use of his right leg before working for the employer. The district court also affirmed the award of healing period benefits but remanded the Second Injury Fund claim based on the ground the agency miscalculated and understated his loss of earnings as a factor in the assessment of industrial disability.

 

The employer and the Second Injury Fund both appealed and the Court of Appeals affirmed the commissioner’s decision that the employer was liable for the entirety of the Claimant’s lower extremity disability, but reversed the district court on it’s rulings regarding the Second Injury Fund and healing period benefits. The Claimant then appealed the decision as to Second Injury Fund benefits and healing period benefits. The Supreme Court granted review only upon the issue to determine whether the period of healing period benefits should be allowed.

 

In its analysis, the Court first noted that if authority had been vested in the commissioner by the Legislature for the interpretation of the statutory provision at issue, the Court would affirm the commissioner’s interpretation unless it is based upon “an irrational, illogical or wholly unjustifiable interpretation.” However, if the commissioner had not been vested with the authority to interpret the provision at issue, no deference would be afforded to his interpretation. The particular statute with which the Court was concerned was Iowa Code Section 85.34(1), granting healing period benefits.

The Court went on to note that the employer contended the commissioner erred in his interpretation of Section 85.34(1) when allowing an award of healing period benefits to the Claimant for a period of postsurgical convalescence that happened after he had reached MMI on April 6, 2005 or returned to substantially similar work. The Claimant on the other hand contended “the commissioner correctly interpreted the statute as allowing a resumption of the healing period when, after multiple surgeries, periods of convalescence, returns to work, and ratings of permanent impairment by medical providers, a claimant again becomes temporarily disabled from work as a consequence of ordinary and necessary surgical treatment for the work-related injury.”

 

In its resolution of the issue, the Court first turned its attention to whether authority had been granted to the commissioner to determine the code section at issue. The Court ultimately concluded that there was no express granting of interpretive authority to the commissioner “pertaining to the commencement and termination of a healing period under section 85.34(1).” The Court found that the commissioner was not vested with the authority to interpret the statute at issue and that his decision would be reviewed for errors at law.

 

The Court then turned its attention to whether the decision of the commissioner was a correct interpretation of the law. The Court first examined its ruling in a prior case,Ellingson v. Fleetguard, Inc., 599 N.W.2d 440 (Iowa 1999), in which the Court had held Section 85.34(1) was a “categorical prohibition of an award of healing period benefits for disability from work occurring after the date MMI has been achieved.” The Court found their interpretation in that case to have been erroneous and overruled it.

 

The Court then turned to the statute language itself and determined that the legislature did not intend for the phrase “a healing period” to limit healing period benefits to a single period of temporary disability per injury. The Court focused its attention on the use of the article “a” and concluded that the Legislature meant its use of “a” to express the sense of “any.” The Court went on to espouse that when a Claimant is “rendered temporarily disabled from work, as the Claimant was, as a consequence of surgical treatment provided under section 85.27 for a work-related injury, a new healing period begins under section 85.34(1).”

 

The Court found its previous decision in Ellingson was flawed for two reasons. “First, it diminished the promise of continuing medical care for work-related injuries under section 85.27 by eliminating the healing period remedy intended to replace wages lost during convalescence from ordinary and necessary treatment in scenarios presenting more than one period of temporary disability from work following a single injury. Further, it ignored the fact that a single injury can cause a new period of temporary disability even after a claimant has achieved MMI.”

 

The Court next turned its attention to the phrase “the employee has returned to work.” The Court stated that often there are attempts to return to work which are unsuccessful and temporary. The Court went on to state that their “interpretation of section 85.34(1)…avoids the absurd and unjust result that would arise if the statute were interpreted to allow only one course of healing period benefits for a single injury.” The Court determined that the legislature did not intendto deny additional healing period benefits when an injured employee’s return to work proves unsuccessful and a new period of temporary disability from work begins or—as in this case—invasive medical treatment for the work-related injury again renders the Claimant temporarily disabled from work.

 

The Court ultimately concluded that the commissioner correctly interpreted Section 85.34(1) when he awarded healing period benefits to the Claimant for the period he was disabled from his surgery even though the period was after he had been placed at MMI. 

 

The long-term ramifications of this decision could be broad-ranging.  At a minimum, it appears the court has upheld Commissioner Godfrey’s opinion that healing periods can be intermittent, and can reopen after a prior assessment of MMI or a return to work.  The impact of this decision on cases involving attempts to reopen healing periods after an award of PPD has been entered or an agreement for settlement has been approved is unclear, but could present difficulties for employers defending such claims.

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!