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IN THE COURT OF APPEALS OF IOWA No. 0-647 / 10-0502 Filed November 24, 2010 THE WALDINGER CORPORATION and EMCASCO INSURANCE COMPANY, and SECOND INJURY FUND OF IOWA, Petitioners-Appellants, vs. MICHAEL B. METTLER, Defendant-Appellee. ________________________________________________________________ Appeal from the Iowa District Court for Polk County, Artis Reis, Judge.

The petitioners appeal from the district court order on judicial review, affirming the agencys grant of workers compensation benefits to Mettler and remanding to the agency for recalculation of his industrial disability. AFFIRMED IN PART AND REVERSED IN PART.

D. Brian Scieszinski of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellant The Waldinger Corporation. Thomas J. Miller, Attorney General, and Deborah M. Stein, Assistant Attorney General, for appellant Second Injury Fund. Harry W. Dahl, Des Moines, for appellee.

Heard by Mansfield, P.J., and Danilson and Tabor, JJ.

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TABOR, J. Today we are asked to decide two related workers compensation appeals involving injured worker Michael Mettler. The first is his employers challenge to the refusal by the workers compensation commissioner to apportion Mettlers preexisting impairment as determined by the Veterans Administration (VA) and the commissioners grant of healing period benefits after Mettler had achieved maximum medical recovery. The second is the Second Injury Funds appeal of the district courts remand for the agency to recalculate the percentage of Mettlers industrial disability. Because we find substantial evidence to support the commissioners decision on the apportionment and industrial disability claims, we affirm the district courts rejection of apportionment, but reverse the district courts remand of the industrial disability calculation. We also reverse on the healing period benefit issue, finding it is controlled by precedent from our supreme court. I. Background Facts and Procedures Michael Mettler was a plumber by trade. He graduated from high school in 1969 and completed a five-year training and apprenticeship program to become a journeyman plumber and pipefitter in 1974. He worked for several years as a union plumber. In 1979 he joined the army reserves and began active military duty in 1981. His service continued until 2001 when he was honorably discharged. Mettler performed a variety of duties while enlisted, including

construction, recruitment, truck driving, guidance counseling, logistics operations,

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radio communications, and supply. Mettler also received training as an airborne paratrooper and jumped from airplanes more than forty times during his service. In 1989, Mettler was working as a supply sergeant and fell from a step ladder while moving boxes. He landed on both elbows, breaking the bones and requiring separate surgeries on each elbow to remove bone spur chips. In 1991 or 1992, Mettler sprained his ankle while parachuting and walking on rough terrain. In the 1990s, Mettler had several surgeries to repair a recurrent umbilical hernia. He also received treatment for lower back pain during the late 1990s. Mettlers doctors restricted him to lifting no more than twenty-five pounds and he spent his last ten years of military service on a desk job that was not physically demanding. While he was in the military, Mettler took courses toward the

completion of his college degree. In May 2001, Mettler resumed his work as a plumber, starting a position with The Waldinger Corporation (Waldinger). Shortly before starting this The VA

employment, Mettler underwent a disability examination at the VA.

determined that he had twenty percent impairment to his right ankle and ten percent impairment to his right knee. Considering impairment to his spine and his tinnitus symptoms, the VA calculated his total impairment at seventy percent. As a result of this disability determination, Mettler receives $1100 a month from the VA. Mettler testified that he was able to perform his assigned duties when he started at Waldinger. As time went on, he noticed increased pain in his ankle when climbing ladders and walking on uneven surfaces. The parties stipulated

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that Mettler received a work-related injury on August 9, 2001. Mettler saw a series of doctors during late 2001; he eventually received a diagnosis of talar dome lesion, which is an injury to the ankle joint. On February 6, 2002, Mettler had the first of four surgeries on his ankle. The dates for the subsequent

surgeries were September 25, 2002; July 1, 2004; and September 28, 2007. He ended his employment at Waldinger in 2006; he worked briefly for two other plumbing companies before changing careers. As a full-time plumber, Mettler earned approximately $50,000 per year. In early 2007, Mettler finished his bachelors degree and obtained the credentials necessary to teach high school industrial arts. In the spring of 2008, he signed a nine-month contract with the Indianola Community School District to start teaching the 2008 fall semester at a salary of $33,700. Mettler filed petitions against Waldinger and the Second Injury Fund (the Fund) seeking workers compensation benefits. At the time of the August 18, 2008 hearing before the deputy workers compensation commissioner, Mettler was fifty-seven years old. The deputy workers compensation commissioner filed an arbitration decision on September 23, 2008, awarding Mettler fifteen percent partial disability for his lower right extremity, based on the opinion of Dr. Michael Lee, following Mettlers 2007 ankle surgery. The decision did n ot apportion a

preexisting impairment based on Mettlers examination by VA doctors before he started his employment with Waldinger, opining it was "unclear how the ,,disability for Veterans Affairs benefits was determined."

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The arbitration decision declined Mettlers request for healing period benefits, a form of temporary compensation that precedes the allowance of permanent partial disability benefits. The decision noted that under Iowa Code section 85.34(1) (2001), the employer is to pay healing period benefits until the employee returns to work or reaches maximum medical improvement. The

arbitration decision found Mettler returned to work before September 18, 2007, and reached maximum medical improvement on April 6, 2005. The deputy commissioner also awarded a fifteen percent industrial disability against the Fund as a result of the combined effects of the losses to his right and left arms and his right ankle and leg. The arbitration decision

considered a host of factors, including the injured workers age, education, qualifications, experience, motivation, loss of earnings, severity and sight of the injury, work restrictions, and the workers ability to engage in employment for which he is qualified, and the employers offer of work. The decision also

compared Mettlers $4000 monthly salary as a plumber to his teaching contract monthly salary of $3745 and concluded that his various disabilities "do not appear to have diminished in any way his earning capacity." Both Mettler and Waldinger appealed from the arbitration decision. The appeal decision issued by the agency on July 21, 2009, affirmed the arbitration decision in all aspects except one. The appeal decision awarded Mettler healing period benefits from his last surgery on September 18, 2007, through December 17, 2007.

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Waldinger petitioned for judicial review on July 28, 2009. The district court affirmed the agencys determination that Waldinger was responsible for the full amount of compensation for Mettlers right lower extremity disability of fifteen percent. The court determined the evidence was not sufficient to establish that the preexisting condition independently produced a discrete and ascertainable degree of disability, for the purpose of apportionment under Iowa law. The

district court also affirmed the appeal decisions award of healing period benefits for the time period following the September 2007 surgery. The court opined: "A single injury may produce multiple periods of time when healing period compensation is payable." The district court disagreed with the agencys method of calculating Mettlers loss of earnings by comparing his monthly salary as a plumber with his monthly salary as a teacher, which "ignor[ed] the fact that he receives no earnings during the other three months of the year." The district court remanded the case to the agency to "reassess the amount of Mettlers industrial disability based on an actual loss of earnings of 30% so as to more accurately reflect the lost earnings and loss of access to the job market." Waldinger and the Fund both appeal from the district courts decision. II. Standard of Review We review decisions of the workers compensation commissioner according to Iowa Code chapter 17A. Swiss Colony, Inc. v. Deutmeyer, 789 N.W.2d 129, 133 (Iowa 2010). When the question is the meaning of a statute, the commissioners interpretation receives no deference; we are free to

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substitute our interpretation de novo. Iowa Code

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