Gallardo v. Firestone Tire & Rubber Co.

482 N.W.2d 393, 1992 Iowa Sup. LEXIS 46, 1992 WL 48602
CourtSupreme Court of Iowa
DecidedMarch 18, 1992
Docket90-1658
StatusPublished
Cited by8 cases

This text of 482 N.W.2d 393 (Gallardo v. Firestone Tire & Rubber Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gallardo v. Firestone Tire & Rubber Co., 482 N.W.2d 393, 1992 Iowa Sup. LEXIS 46, 1992 WL 48602 (iowa 1992).

Opinion

NEUMAN, Justice.

This appeal by an employee challenges a judicial review decision that affirmed the industrial commissioner’s denial of additional workers’ compensation benefits following a second review-reopening hearing under Iowa Code section 86.14(2) (1989). We transferred the case to the court of appeals, which affirmed on a two-to-one vote. Because we are convinced the commissioner’s decision is unsupported by the record made before the agency, we vacate the court of appeals decision, reverse the judgment of the district court, and remand to the agency for further proceedings.

I. For over thirty years appellant John Gallardo worked in the factory owned by appellee Firestone Tire & Rubber Company in Des Moines, Iowa. He held a variety of positions from maintenance worker to tire builder. While building tires in April 1980, Gallardo suffered a severe back injury. He began receiving weekly workers’ compensation benefits pursuant to a negotiated settlement with the company.

In 1984 Gallardo filed his first review-reopening petition. Since his injury four years before, he had undergone two back surgeries to repair damage sustained in the original accident. Although he returned to the plant following recovery from each operation, weight and motion restrictions limited the work he was comfortably able to do. Thus he sought additional compensation for an industrial disability that fully reflected his decreased earning capacity.

At the time of the first hearing Gallardo happened to be on vacation. He testified that just prior to this leave his supervisor had advised him to sit idle at the job site because there was no work within his department that satisfied his light duty requirements. Gallardo’s physician also testified regarding Gallardo’s expressed concern that thére were no jobs within the plant that he could painlessly and safely perform. Gallardo’s impression was contradicted by a company spokesman, however, who testified that the company was willing to accommodate Gallardo’s medical restrictions with suitable employment. Without disputing Gallardo’s veracity, the official expressed surprise at Gallardo’s statement that he spent his days drinking coffee. But when asked to cite a specific position Gallardo would qualify for under the circumstances, he could not name one.

The deputy industrial commissioner concluded that Gallardo was suffering a fifty percent industrial disability. On adminis *395 trative appeal by the company, the commissioner reduced this figure to forty percent based on the company’s professed willingness to accommodate Gallardo’s medical restrictions with continued employment. Gallardo’s benefits were adjusted accordingly.

Immediately following final ruling in the first proceeding, Gallardo filed a second review-reopening petition. He alleged further deterioration in his physical condition and resultant reduction in his earning capacity. The evidence produced two years later in his second proceeding forms the basis for this appeal.

The record reveals that shortly after the first hearing Gallardo returned to the plant and was assigned to the task of cleaning machinery. After two or three weeks on this job his legs collapsed while he was climbing a ladder. On his doctor’s advice he did not return to the plant. The company then authorized fifty-two weeks of accident and disability payments. Thereafter Gallardo applied for and began receiving a medical disability retirement pension. Testimony from a company official confirmed that Firestone would authorize disability retirement only upon satisfactory proof that an employee’s medical condition prevented him or her from working in the plant.

In his ruling on Gallardo’s second petition, the industrial commissioner rejected Gallardo’s claim that his worsening condition and disability retirement warranted an adjustment to the benefits established by the first review-reopening proceeding. The commissioner found insufficient evidence in the record to support a finding that Gallar-do’s physical condition had changed. Moreover, the commissioner ruled that although Gallardo’s earnings had changed by virtue of his retirement, his earning capacity had not. Thus the commissioner ruled there was no basis to adjust the prior award. It is from this ruling, and the district court’s and court of appeals’ affirmance of it, that Gallardo now seeks further review.

II. Our decision is guided by well-settled rules. On appeal from judicial review of agency action, our review is limited to correction of errors at law. Jackson County Pub. Hosp. v. PERB, 280 N.W.2d 426, 429 (Iowa 1979). The industrial commissioner’s factual findings are binding on us if the evidence is in dispute or if reasonable minds could draw different inferences from it. Gosek v. Garmer & Stiles Co., 158 N.W.2d 731, 732 (Iowa 1968). The test is whether the commissioner’s decision is supported by substantial evidence. Id.• at 732. Evidence is substantial if a reasonable person would find it adequate to reach a conclusion. Armstrong v. State of Iowa Bldgs. & Grounds, 382 N.W.2d 161, 166 (Iowa 1986).

Iowa Code section 86.14(2) authorizes the industrial commissioner to reopen an award or settlement of workers’ compensation benefits to inquire “whether or not the condition of the employee warrants an end to, diminishment of, or increase of compensation so awarded or agreed upon.” This is commonly known as a “review-reopening” proceeding. See also Iowa Code § 85.26(2) (providing three-year statute of limitation for review-reopening petitions). The claimant carries the burden of establishing by a preponderance of evidence that, subsequent to the date of the award under review, he or she has suffered an impairment or lessening of earning capacity proximately caused by the original injury. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 350 (Iowa 1980); Deaver v. Armstrong Rubber Co., 170 N.W.2d 455, 457 (Iowa 1969).

The necessary showing in a review-reopening proceeding may be made without proof of change in physical condition. Blacksmith, 290 N.W.2d at 350; 3 A. Larson, The Law of Workmen’s Compensation § 81.31(e), at 15-1030 (1989). That is because industrial disability is the product of many factors, only one of which is functional disability stemming from the physical injury. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980). Other factors include age, education, experience, and “inability, because of the injury, to engage in employment for which [the employee] is fitted.” Id. (quoting Olson v. *396 Goodyear Serv. Stores,

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