Trumblee v. Walmart, 010820 IAWC, 5058568

Case DateJanuary 08, 2020
CourtIowa
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...

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