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IN THE COURT OF APPEALS OF IOWA No. 6-907 / 05-1957 Filed December 28, 2006

SECOND INJURY FUND OF IOWA, Petitioner-Appellant/Cross-Appellee, vs. JACKIE GEORGE, Respondent-Appellee/Cross-Appellant. ________________________________________________________________

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/crossappellant.

Heard by Huitink, P.J., Zimmer, J., and Nelson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).

2 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, 1 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
1

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.

3 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,

4 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. 2 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,

2

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.").

5 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

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