LINDA TRUMBLEE, Claimant
v.
WALMART, Employer,
and
NEW HAMPSHIRE INSURANCE CO., Insurance Carrier, Defendants.
No. 5058568
Iowa Workers Compensation
Before the Iowa Workers' Compensation Commissioner
January 8, 2020
Head
Note Nos: 1803, 3001, 3002
APPEAL DECISION
JOSEPH
S. CORTESE, II WORKERS' COMPENSATION COMMISSIONER
Defendants
Walmart, employer, and New Hampshire Insurance Company,
insurer, appeal from an arbitration decision filed on
September 26, 2018. Claimant Linda Trumblee responds to the
appeal. The case was heard on July 9, 2018, and it was
considered fully submitted in front of the deputy
workers' compensation commissioner on August 27, 2018.
The
deputy commissioner found claimant sustained 80 percent
industrial disability as a result of the stipulated
work-related injury to her right shoulder which occurred on
June 10, 2015. The deputy commissioner determined
claimant's correct weekly benefit rate is $316.51.
Lastly, the deputy commissioner found claimant established
her entitlement to receive penalty benefits based on
defendants' unreasonable failure to pay the additional
weeks owed under the most recent impairment rating issued by
Richard Naylor, D.O.
On
appeal, defendants assert the deputy commissioner's award
of 80 percent industrial disability is excessive. Defendants
also argue the deputy commissioner erred in his determination
that claimant is entitled to receive penalty benefits.
Those
portions of the proposed agency decision pertaining to issues
not raised on appeal are adopted as a part of this appeal
decision.
I
performed a de novo review of the evidentiary record and the
detailed arguments of the parties. Pursuant to Iowa Code
sections 17A.5 and 86.24, those portions of the proposed
arbitration decision filed on September 26, 2018 that relate
to the issues properly raised on intra-agency appeal are
modified in part and affirmed in part with additional
analysis.
Turning
first to the extent of claimant's industrial disability,
defendants argue on appeal that claimant has now been awarded
130 percent industrial disability between the 50 percent
award she received in 2005 and the deputy commissioner's
80 percent award at issue in this case. Defendants assert it
does not "make logical sense to conclude that Claimant
has lost 130 % of her earning capacity, while she continues
to work full time earning full wages" and when she
sustained "no increase in her functional restrictions or
reduction in her wages or work capability."
(Defendants' Appeal Brief, p. 10) This argument, however,
overlooks the "fresh-start rule." "Under the
fresh-start rule, if the employee sustains a new work-related
injury after commencing work for a new employer, any
resulting loss of earning capacity is measured as a
diminution of the new, complete earning capacity that existed
at the time the employment with the new employer
commenced." Roberts Dairy v. Billick, 861
N.W.2d 814, 819 (Iowa 2015).
As
further explained by the court in Roberts Dairy:
Under the modified fresh-start rule, the new employer is not
liable for disability arising out of unscheduled injuries
sustained during past employment with a former employer. The
new employer's liability under section 85.34(2)(u) for
permanent partial disability caused by a successive injury is
measured by comparing the claimant's earning capacity
"when the injury occurred" with "the reduction
in earning capacity caused by the disability."
Id. § 85.34(2)(u). The earning capacity
when the injury occurred is a refreshed capacity provided by
the fresh-start rule-When, as a consequence of a successive
work-related injury, part of that refreshed earning capacity
is lost, compensation is owed under section 85.34(2)(u).
See Id. In this context, the fresh-start rule holds
the employer liable for a work-related permanent partial loss
of the new earning capacity refreshed by market forces and
existing at the time of the successive injury—not for a
preexisting disability arising from employment with a
different employer.
Roberts Dairy, 861 N.W.2d at 823-24 (emphasis
added).
Applied
to this case, the deputy commissioner's award of 80
percent industrial is not simply added to the prior award of
50 percent for a total industrial disability of 130 percent.
Id., at 824 ("Under the rule, the injured
employee recovers for a permanent partial loss of a fully
refreshed earning capacity redefined by market forces at the
time new employment began—not for an additional...