Iowa Reports
SECOND INJURY FUND v. GEORGE, 6-907/05-1957 (Iowa App.
12-28-2006) SECOND INJURY FUND OF IOWA,
Petitioner-Appellant/Cross-Appellee, v. JACKIE GEORGE,
Respondent-Appellee/Cross-Appellant. No. 6-907/05-1957.
Court of Appeals of Iowa. Filed December 28, 2006.
Appeal from the Iowa District Court for Polk County,
Douglas F. Staskal, Judge.
The Second Injury Fund of Iowa appeals the district court’s
ruling on judicial review affirming the workers’
compensation commissioner’s decision that the Fund had
liability for Jackie George’s industrial disability.
AFFIRMED AND REMANDED WITH DIRECTIONS.
Thomas J. Miller, Attorney General, and Shirley A. Steffe,
Assistant Attorney General, for appellant/cross-appellee.
Corey J.L. Walker of Walker & Billingsley, Newton, for
appellee/cross-appellant.
Heard by HUITINK, P.J., ZIMMER, J., and NELSON, S.J.[fn*]
[fn*]Senior judge assigned by order pursuant to Iowa Code
section 602.9206 (2005).
HUITINK, P.J.
The Second Injury Fund of Iowa (Fund) appeals the district
court’s ruling on judicial review affirming the workers’
compensation commissioner’s decision that the Fund had
liability for Jackie George’s industrial disability. We
affirm.
I. Background Facts and Proceedings
The facts are largely undisputed. On June 21, 2000, George
sustained a bilateral knee injury arising out of and in the
course of her employment as a customer service engineer
with Xerox Corporation, a position that entailed the repair
and service of copiers. She underwent two surgeries and was
given permanent work restrictions, including no lifting
over thirty pounds, no kneeling, no squatting, no stairs,
and no ladders. The restrictions precluded George from
returning to her position at Xerox, and she was terminated.
In her petition in arbitration setting forth a claim
against her employer and its insurance carrier for workers’
compensation benefits,[fn1] George presented a claim for
benefits under the Second Injury Compensation Act, Iowa
Code section 85.63 et seq. (2001). She claimed three first
losses: (1) September 1987 (bilateral carpal tunnel); (2)
November 1993 (right hand, elbow and upper extremity); and
(3) May 3, 1996 (left knee/leg). A hearing before the deputy
workers’ compensation commissioner was held in April 2003.
George was fifty-three years old at the time of the
hearing. George testified she sustained a bilateral carpal
tunnel injury while working as a meat trimmer in 1987. She
was uncertain of the impairment rating assigned following
surgeries to treat the injury. George returned to work
without restrictions after the surgeries, but was terminated
after her hands began swelling and her doctor told her she
could no longer perform that type of work.
While working for Xerox in 1993, George underwent surgery
for carpal tunnel, a pinched nerve in her elbow, and a
trigger finger, all in her right arm. George testified she
received a five-percent impairment rating, but was
uncertain whether it was to the hand or to the body as a
whole. She was not placed under any permanent work
restrictions as a result of the injury. George did not
present any medical records or other evidence to support
her testimony related to the 1987 and 1993 injuries.
George did present evidence related to the May 1996 injury
to her left knee and leg. She tore the meniscus in her left
knee and pinched a nerve in the groin of her left leg while
employed with Xerox. She underwent surgery and received a
seven-percent impairment rating to the lower extremity
following the injury. Her treating physician released
George to full duty in October 1996.
The deputy commissioner filed an arbitration decision in
January 2004. He concluded George had failed to meet her
burden of proof by a preponderance of the evidence that
either the 1987 or the 1993 injuries resulted in a
permanent injury or permanent disability. However, the
deputy commissioner further concluded the May 1996 injury
and the June 2000 injury were qualified first and second
injuries, respectively, pursuant to Iowa Code section
85.64. After assessing the factors to be considered in
determining industrial disability, including functional
impairment, age, education, qualifications, work experience,
and ability to engage in employment for which she is fit,
see Clark v. Vicorp Rests., Inc., 696 N.W.2d 596, 605 (Iowa
2005), the deputy determined George had sustained a
fifty-five-percent industrial disability to the body as a
whole. Accordingly, the Fund was liable for the 239.6 weeks
of benefits.[fn2]
The Fund appealed, seeking agency review of the deputy
commissioner’s decision. The workers’ compensation
commissioner filed an appeal decision in November 2004,
affirming and adopting as final agency action “those
portions of the proposed decision in this matter that
related to issues properly raised on intra-agency appeal,”
and including some “additional analysis.” Specifically, the
commissioner determined:
[T]he damage from the [1996] injury had actually caused a
loss of use of the left leg as demonstrated by the
impairment rating. In the present injury, claimant’s right
leg was also damaged and constitutes a qualifying loss.
In fact, the Second Injury Fund received credit for the
full compensable value of the left leg disability.
The present injury contributed the overwhelming majority
of the industrial disability. However, it cannot be
accurately said that the first contributed nothing
whatsoever. The deputy correctly found a combined effect.
Even in the absence of a combined effect, the terms of
the statute are controlling. Claimant had a qualifying
first loss and a subsequent loss that triggered the
benefit from the Second Injury Fund.
The commissioner further determined “[t]here is ample
evidence in the record to support a finding of qualifying
losses in 1987 and 1993. . . . So long as a prior loss of
use is established and some measure of degree can be placed
upon it, even if only by the judgment of the deputy, a
qualifying first loss can be established.”
The Fund sought judicial review of the agency action in
district court. In a ruling on the petition for judicial
review, filed in November 2005, the district court affirmed
the agency’s decision.
The Fund appeals the district court’s ruling on its
petition for judicial review, arguing the district court
erred in (1) affirming the agency’s conclusion that a
bilateral simultaneous injury under section 85.34(2)(s) is
a qualifying loss under section 85.64, (2) affirming the
agency’s conclusion that the May 1996 left leg injury was a
qualifying loss under section 85.64, and (3) affirming the
manner in which the agency assessed industrial disability.
George cross-appeals, arguing the district court erred in
granting the Fund’s motion to stay and not requiring the
Fund to post a bond.
II. Standard of Review
Our review is governed by the Iowa Administrative Procedure
Act, Iowa Code chapter 17A (2003). See Iowa Code §
86.26 (2001). The district court functions in an appellate
capacity in exercising its judicial review power. Hill v.
Fleetguard, Inc., 705 N.W.2d 665, 669 (Iowa 2005). When
reviewing the district court’s decision, we apply the
standards of chapter 17A to determine whether the
conclusions we reach are the same as those of the district
court. Id. We affirm if the conclusions are the same;
otherwise we reverse. Id. The agency’s findings of fact are
binding on us if they are supported by substantial evidence.
Fears v. Iowa Dep’t of Human Servs., 382 N.W.2d 473, 475
(Iowa Ct.App. 1985). “In reviewing the commissioner’s
interpretation of the statutes governing the agency, we
defer to the expertise of the agency, but reserve for
ourselves the final interpretation of the law.” Second
Injury Fund v. Bergeson, 526 N.W.2d 543, 546 (Iowa 1995).
III. Second Fund Injury Liability
The purpose of the Second Injury Compensation Act, codified
at Iowa Code sections 85.63 through 85.69, is to encourage
the employment of disabled individuals. Bergeson, 526
N.W.2d at 547. Section 85.64 limits the employer’s
liability in the event an employee suffers a specified
second injury. Id. The statute provides in pertinent part as
follows:
If an employee who has previously lost, or lost the use
of, one hand, one arm, one foot, one leg, or one eye,
becomes permanently disabled by a compensable injury which
has resulted in the loss of or loss of use of another such
member or organ, the employer shall be liable only for
the degree of disability which would have resulted from
the latter injury if there had been no pre-existing
disability. In addition to such compensation, and after
the expiration of the full period provided by law for the
payments thereof by the employer, the employee shall be
paid out of the “Second Injury Fund” created by this
division the remainder of such compensation as would be
payable for the degree of permanent disability involved
after first deducting from such remainder the compensable
value of the previously lost member or organ.
Iowa Code § 85.64. Thus, the employee must prove the
following to trigger the liability of the fund:
(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). When these three circumstances are present,
“the Fund becomes responsible for the difference between
the compensation for which the current employer is liable
and the total amount of industrial disability suffered by
the employee, reduced by the compensable value of the first
injury.” Id.
A. Whether a Bilateral Simultaneous Injury Under Section
85.34(2)(s) is a Qualifying Loss Under Section 85.64
Iowa Code section 85.34(2) provides a schedule of benefits
for injuries to specific members of the body, including
fingers, toes, hands, feet, arms, legs, and eyes.[fn3] See
Iowa Code § 85.34(2)(a)-(t). Specifically, section
85.34(2)(s) provides compensation for “[t]he loss of both
arms, or both hands, or both feet, or both legs, or both
eyes, or any two thereof, caused by a single accident. . .
.” Section 85.64 requires two scheduled injuries to invoke
Fund liability. Second Injury Fund v. Nelson, 544 N.W.2d
258, 270 (Iowa 1995).
As mentioned, George claimed her second loss for purposes
of section 85.64 was the June 2000 injury to her bilateral
lower extremities, compensated under section 85.34(2)(s).
The Fund contends a bilateral injury under section
85.34(2)(s) is not an injury to a scheduled part under
section 85.64 because the statute refers to “one leg” and
“another such member.” The Fund argues the agency and the
district court erred in concluding otherwise.
Our primary purpose in statutory construction is to
determine legislative intent. State v. Iowa Dist. Ct., 630
N.W.2d 778, 781 (Iowa 2001). We determine intent from the
words used by the legislature. Id. When text of the statute
is plain and its meaning clear, we are not permitted to
search for meaning beyond its express terms. State v.
Tesch, 704 N.W.2d 440, 451 (Iowa 2005). The plain language
or plain meaning of a statute “is not limited to the
meaning of individual terms, but rather, such inquiry
requires examining the text of the statute as a whole by
considering its context, object, and policy.” Forbes v.
Hadenfeldt, 648 N.W.2d 124, 126 (Iowa 2002). “[W]e must
avoid legislating in our own right and placing upon
statutory language a strained, impractical, or absurd
construction.” Anderson v. Second Injury Fund, 262 N.W.2d
789, 791 (Iowa 1978) (citation omitted).
After examining the statute as a whole, and considering its
object and policy, we conclude the Fund’s position that the
statute applies only to injuries of a single scheduled
member would lead to impractical and absurd results. As the
district court explained in its ruling on judicial review,
If George had injured only her right knee in the second
accident, she would unquestionably be entitled to Fund
benefits, but she would be denied such benefits because
she injured both knees in the same accident. Further,
under the Fund’s position, George would be entitled to
benefits if her second injury was only to one hand, for
example, but she would be denied such benefits if she
injured both hands or if she suffered any bilateral injury
to a scheduled member.
The legislature could not have intended for an injured
worker with only one impaired scheduled member to be placed
in a better position than a more severely injured worker
with bilateral injuries. Therefore, we conclude that a
bilateral simultaneous injury under section 85.34(2)(s) is
a qualifying loss under section 85.64. Accordingly, we
affirm the district court’s and the agency’s determination
that George’s bilateral knee injury qualified her for Fund
benefits.
B. Whether the May 1996 Left Leg Injury was a Qualifying
Loss Under Section 85.64
As mentioned, the commissioner and the district court
concluded George’s May 1996 injury to her left knee
constituted a qualified first injury under section 85.64.
The Fund argues the evidence fails to show George had a
permanent disability to her left knee at the time her
second injury occurred; therefore, there was no prior loss
of a scheduled member and no qualifying loss under section
85.64.
George was released to full duty following her May 1996
injury and continued in the same employment with Xerox. She
had no permanent work restrictions, and her salary steadily
increased. However, “[t]o invoke Fund liability, the first
injury need only be a scheduled injury.” Bergeson, 526
N.W.2d at 548. The first injury need not result in an
industrial disability to constitute a “loss of use” under
section 85.64. Id. It is undisputed that George had a
seven-percent impairment rating to her lower left extremity
following the 1996 injury, for which she received 15.4
weeks of permanent partial disability benefits.
Accordingly, substantial evidence supports the agency’s
conclusion that the 1996 injury was a scheduled injury
resulting in a functional impairment, and therefore was a
qualifying first injury for purposes of section 85.64.
C. The Manner in Which the Agency Assessed Industrial
Disability
The Fund argues the agency erred in assessing industrial
disability by failing to make a determination of the
combined effects of the first and second loss. Essentially,
the Fund contends George was required to show, and the
agency to find, that the 1996 injury combined with the June
2000 injury to bring about industrial disability. According
to the Fund, the agency must be reversed because “[t]here
was no combined effect determination and in any event, no
such determination could find substantial evidentiary
support.”
“It is the cumulative effect of scheduled injuries
resulting in industrial disability to the body as a whole
— rather than the injuries considered in isolation
— that triggers the Fund’s proportional liability.”
Bergeson, 526 N.W.2d at 548 (citations omitted). The
commissioner concluded, “The present injury contributed the
overwhelming majority of the industrial disability.
However, it cannot be accurately said that the first
[injury] contributed nothing whatsoever.” The agency was
not required to determine the exact degree to which each of
the injuries contributed to the overall disability. George
met her burden of proving the elements necessary to
establish eligibility for Fund benefits. See Haynes, 547
N.W.2d at 13. The agency properly considered the applicable
factors in determining industrial disability, and its
findings are supported by substantial evidence. Accordingly,
we affirm on this issue.
IV. Cross-Appeal
After the Fund filed its petition for judicial review in
district court, George filed an application for judgment
pursuant to Iowa Code section 86.42. The Fund filed a
resistance to the application for judgment and a motion for
stay of agency action. See Iowa Code §§
17A.19(5), 86.26 (2003). George resisted the motion for a
stay. Following a hearing, the district court granted the
Fund’s motion.
Following the district court’s ruling affirming the
agency’s decision, filed on November 15, 2005, George filed
a “reinstatement of her application for judgment pursuant
to Iowa Code section 86.42 and motion to lift stay.” The
Fund filed its notice of appeal, along with a motion to
continue the district court’s stay of an award of benefits
without filing a supersedeas bond, pursuant to Iowa Rule of
Appellate Procedure 6.7(3),[fn4] and a resistance to
George’s application for judgment and motion to lift the
stay. On June 8, 2005, the district court filed an order
granting the Fund’s motion to continue stay of award
benefits without filing bond. In her cross-appeal, George
argues the district court erred in granting the motions to
stay, and not requiring the Fund to post a bond. We review
for an abuse of discretion. Glowacki v. State Bd. of Med.
Exam’rs, 501 N.W.2d 539, 541 (Iowa 1993).
Discussion
Iowa Code section 17A.19(5) allows a party to request a
stay of agency action pending the outcome of judicial
review proceedings. In determining the appropriateness of a
stay, the district court must consider and balance the
following factors:
(1) The extent to which the applicant is likely to
prevail when the court finally disposes of the matter.
(2) The extent to which the applicant will suffer
irreparable injury if relief is not granted.
(3) The extent to which the grant of relief to the
applicant will substantially harm other parties to the
proceedings.
(4) The extent to which the public interest relied on by
the agency is sufficient to justify the agency’s action in
the circumstances.
Iowa Code § 17A.19(5)(c); see also Farmers State Bank
v. Bernau, 433 N.W.2d 734, 738 (Iowa 1988).
In its written ruling, the district court concluded “a stay
is appropriate in this case because of the novelty and
importance of the legal issue involved coupled with the
public interest in preserving the Fund.” Upon careful
review of the district court’s ruling, we conclude the
court did not abuse its discretion in granting the stay
pending its ruling in the judicial review action.
Similarly, we find no abuse of discretion in the district
court’s grant of a stay without bond, pursuant to rule
6.7(3), pending the outcome of this appeal.
V. Conclusion
We affirm the district court’s ruling on judicial review.
Accordingly, we remand for a ruling lifting the stay and
entry of judgment.
AFFIRMED AND REMANDED WITH DIRECTIONS.
[fn1] George voluntarily dismissed without prejudice the
claim against Xerox and its insurance carrier in March
2003. The employer had paid twenty weeks of benefits for a
four-percent permanent partial disability to the body as a
whole for the June 2000 injury, based upon a bilateral
lower extremity impairment.
[fn2] The total of 239.6 weeks liability for the Fund is
equal to 275 weeks of permanent partial disability benefits
for fifty-five-percent industrial disability to the body as
a whole, minus twenty weeks received for the second injury
and 15.4 weeks received for the first injury. See Second
Injury Fund v. Braden, 459 N.W.2d 467, 471 (Iowa 1990)
(“[W]here both injuries are scheduled, . . . the Fund is
liable for the entire amount of the industrial disability
minus the two scheduled amounts.”).
[fn3] Knees are treated as portions of the leg. James R.
Lawyer & Judith Ann Graves Higgs, 15 Iowa Practice Workers’
Compensation § 13:4, at 136 (2006).
[fn4] Iowa Rule of Appellate Procedure 6.7(3) provides as
follows:
Where the state or any of its political subdivisions
appeal a judgment or order, the district court may, upon
motion and for good cause shown, stay all proceedings
under the order or judgment being appealed without the
filing of a supersedeas bond.