Heather Housley v. Second Injury Fund of Iowa ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0016
Filed April 14, 2021
HEATHER HOUSLEY,
Plaintiff-Appellant,
vs.
SECOND INJURY FUND OF IOWA,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert B. Hanson,
Judge.
Heather Housley appeals the denial of her claim against the Second Injury
Fund. AFFIRMED.
Peter M. Sand, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Amanda R. Rutherford, Assistant
Attorney General, for appellee.
Considered by Bower, C.J., and Doyle and Mullins, JJ.
2
BOWER, Chief Judge.
Heather Housley appeals the district court’s ruling on judicial review
affirming the decision of the Iowa Workers’ Compensation Commissioner denying
her claim for benefits from the Second Injury Fund of Iowa. We affirm.
On April 23, 2015, Housley filed a petition with the Iowa Workers’
Compensation Commissioner seeking benefits from the Second Injury Fund of
Iowa (the Fund) alleging an injury to her right leg on June 25, 2005, while working
at a stock car race, and a second injury to her right arm which occurred while she
was employed with Dell Oil on November 27, 2006. Housley received benefits
from Dell Oil under Iowa Code chapter 85 (2006), but did not file a claim against
Dell Oil for workers’ compensation benefits. Housley did not name Dell Oil as a
party in the underlying action.
The Fund filed a motion to dismiss for failure to include a necessary party
or enter into an agreement for settlement with her former employer. A deputy
commissioner noted the delay between the Fund’s answer to Housley’s petition
and the motion to dismiss, determined “claimant could potentially recover on her
claim,” and denied the motion to dismiss on November 14, 2016.
At the arbitration hearing, the Fund challenged the applicability of the
Second Injury Compensation Act. It argued Housley failed to prove her entitlement
to permanent disability benefits against Dell Oil and, consequently, failed to prove
she had a compensable second injury under Iowa Code section 85.64 (2015). The
Fund also argued Housley failed to establish a disabling first injury. The deputy
commissioner determined, “[Housley] has failed to carry her burden of proof that
the Fund benefits are triggered having failed to produce a prior agreement for
3
settlement or adjudication concerning [Housley] and [Dell Oil] and in the absence
thereof, having failed to include [Dell Oil] as a necessary party in this litigation.”
The deputy concluded all other issues raised were moot.
Housley filed an intra-agency appeal to the commissioner, asserting the
deputy erred in finding she failed to prove entitlement to receive benefits from the
Fund. Housley argued the employer’s liability in the November 27, 2006 claim is
established by her showing that voluntary weekly workers’ compensation
payments were made by the employer and its insurer.
The commissioner affirmed and adopted the deputy’s ruling. The
commissioner explained that an employer’s liability for permanency benefits is not
legally established by volunteering weekly benefits. Citing Iowa Code section
86.13(1),1 the commissioner noted weekly benefits were volunteered by Dell Oil
indicating the employer had notice of the injury, but was not admitting liability for
permanent impairment. The commissioner affirmed the deputy commissioner’s
ruling that Housley failed to establish the Fund benefits were triggered because
she “failed to produce a prior agreement for settlement or adjudication concerning
the claimant and the employer and, in the absence thereof, claimant also failed to
include the employer as a necessary party in this litigation.”
1Section 86.13(1) provides:
If an employer or insurance carrier pays weekly compensation
benefits to an employee . . . [t]he payments establish conclusively
that the employer and insurance carrier have notice of the injury for
which benefits are claimed but the payments do not constitute an
admission of liability under this chapter or chapter 85, 85A or 85B.
(Emphasis added.)
4
Housley filed a petition for judicial review in district court, where she
asserted the employer engaged in voluntary payment of benefits, which is
equivalent to making an admission of liability. She also claimed that Dell Oil
admitted liability for her injury in an alternate care proceeding, meeting the
compensability requirement in Iowa Code section 85.64. The district court
thoughtfully considered and rejected Housley’s arguments, upheld the
commissioner’s ruling, and dismissed Housley’s petition. Housley appeals.
An appeal of a workers’ compensation decision is reviewed
under standards described in chapter 17A. “The agency decision
itself is reviewed under the standards set forth in section
17A.19(10).” The agency’s decision in this case was based on an
interpretation of Iowa Code section 85.64. Interpretation of the
workers’ compensation statute is an enterprise that has not been
clearly vested by a provision of law in the discretion of the
commissioner. Thus, we will reverse the agency’s decision if it is
based on “an erroneous interpretation” of the law.
Gregory v. Second Injury Fund, 777 N.W.2d 395, 397 (Iowa 2010) (internal
citations omitted).
The Fund is statutorily created. See generally Iowa Code §§ 85.63–.69.
Iowa Code section 85.64 provides in part:
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” . . . 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.
To trigger the application of section 85.64, the employee must establish
5
“(1) the employee has either lost, or lost the use of a hand, arm, foot,
leg, or eye; (2) the employee sustained the loss, or loss of use of
another such member or organ through a work related—that is,
compensable—injury; and (3) there must be some permanent
disability from the injuries.”
Second Injury Fund v. Nelson, 544 N.W.2d 258, 269 (Iowa 1995) (quoting Second
Injury Fund v. Shank, 516 N.W.2d 808, 812 (Iowa 1994)). The prior loss or loss of
use need not be work related. See Shank, 516 N.W.2d at 812. And the prior loss
or loss of use does not have to be a total loss or loss of use. Second Injury Fund
v. Braden, 459 N.W.2d 467, 469 (Iowa 1990). The Fund is responsible for the
industrial disability present after the second injury that exceeds the disability
attributable to the first and second injuries. See Iowa Code § 85.64.
“Unlike ordinary workers’ compensation benefits, however, the [Fund’s]
obligation cannot be assessed until the employer’s liability is fixed.” Braden, 459
at 473. By statute, the voluntary payment of workers’ compensation benefits does
not establish the employer’s liability. Iowa Code § 86.13(1).
Housley argues that where, as here, the employer volunteers payment of
benefits, once the time passes within which the worker or the employer is allowed
to seek agency adjustment of the proper compensation, the employer’s “liability is
fixed.” There is some superficial appeal to the argument. But, while the employer
and the employee may no longer challenge the amount of the payments, there
remains the absence of a settlement or determination by the agency that the
employee suffered a work-related injury for which the employer is responsible.
See Iowa Code § 85.3(1) (“Every employer . . . shall provide, secure, and pay
compensation . . . for any and all personal injuries sustained by an employee
arising out of and in the course of the employment, and in such cases, the
6
employer shall be relieved from other liability for recovery of damages or other
compensation for such personal injury.”).
The commissioner wrote:
Claimant argues that nowhere in the statutory language is
there a stated requirement that there be a final adjudication either by
an agreement for settlement or by agency decision of the employer’s
liability. Claimant argues that the credit to be given the Fund for the
employer’s portion of scheduled member liability can be determined
without the employer’s presence in this proceeding. Further,
claimant argues that the same can be shown from the documents
submitted confirming voluntary payment of weekly benefits to
claimant. Claimant further argues that the Fund admits claimant was
paid five weeks of permanent partial disability benefits prior to the
arbitration hearing. However, I affirm the deputy commissioner’s
finding that the Fund merely admitted claimant was paid five weeks
of permanency benefits, which is not the same thing as stipulating to
the employer’s extent of liability.
We agree. Cf. Winnebago Indus., Inc. v. Haverly, 727 N.W.2d 567, 571–75 (Iowa
2006) (discussing employer liability for purposes of issue preclusion, law of the
case, and judicial estoppel and concluding the employer’s admission of liability in
an earlier alternate-medical-care proceeding was not binding in later contested
workers’ compensation proceeding).
This court considered whether an employer was a necessary party to a
claimant’s action against the Fund in Eaton v. Second Injury Fund, No. 05-0381,
2006 WL 2560854, at *4 (Iowa Ct. App. Sept. 7, 2006). There, Eaton voluntarily
dismissed the action against the employer and proceeded against the Fund only.
Id. at *1. At the agency hearing, the Fund argued the claimant needed to include
the employer as a necessary party and needed to supply proof of either an
adjudication of the employer’s liability or settlement for the second injury date. Id.The commissioner and district court agreed. Id. at *2.
7
On appeal, Eaton claimed the employer is not a necessary party and he
could proceed solely against the Fund, arguing there is no specific statutory
requirement that he must recover workers’ compensation benefits directly from the
employer for the second loss in order to recover benefits from the Fund under
section 85.64. Id. The Fund argued section 85.64 “requires the establishment of
employer liability, either by an adjudication or an admission, as a prerequisite to
determining the liability of the Fund.” Id. This court concluded “it was the
legislature’s manifest intent in passing this statute to require the establishment of
the employer’s liability before allowing recovery from the Fund.” Id. at *4.2 We
wrote:
[W]here, as here, there has been no prior adjudication or settlement
establishing the employer’s liability the employer is a necessary party
to the employee’s action against the Fund.
....
As stated in the arbitration decision, the employer’s liability
must be established directly against the employer and not collaterally
in an action against the Fund only, because the employer is an actual
party in interest and the employer is in a better position than the Fund
to make an early and full investigation of the employee’s claimed
work injury.
We note that because we have concluded it was the manifest
intent of the legislature to require the determination of the liability of
the second employer before allowing recovery from the Fund, we
need not determine whether the express language of the statute
requires the establishment of such liability as argued by the Fund.
. . . [A]ssuming without deciding that no express language in the
statute imposes the requirement argued by the fund, just as the
manifest intent of the legislature prevails over the literal import of the
words used, here the manifest intent of the legislature must prevail
over the absence of an express requirement.
Id. (internal citations omitted).
2 “Clearly, the manifest intent of our legislature prevails over the literal import of
the words used.” State v. Anderson, 636 N.W.2d 26, 35 (Iowa 2001).
8
Housley claims Eaton was overruled or made obsolete by the agency’s later
decisions. Housley argues the new commissioner has allowed claims against the
Fund without the employer being named in as a party. She cites Second Injury
Fund v. George, 737 N.W.2d 141 (Iowa 2007), and an agency ruling, Grahovic v.
Second Injury Fund, File 5021995, 2009 WL 3382042 (Iowa Workers’ Comp.
Comm’n Oct. 9, 2009). We note that both cited claims involve a prior agreement
for settlement with the employer, which is not the case here.
We agree with the Fund that Eaton simply states the minimum evidence a
claimant must present to establish employer liability for the second alleged date of
injury is a “prior adjudication or settlement.” 2006 WL 2560854, at *4. We find no
error of law. Because Housley failed to establish employer liability for the second
asserted injury, her claim against the Fund failed. Discerning no error of law, we
affirm.
AFFIRMED.