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IN THE COURT OF APPEALS OF IOWA No. 9-462 / 08-2036 Filed October 7, 2009

WEST RIDGE CARE CENTER, Plaintiff-Appellant, vs. ANNETTE JOHNSON, Defendant-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Richard G. Blane II, Judge.

West Ridge Care Center appeals from the district court's judicial review decision that affirmed the agency decision awarding employee benefits for a permanent total disability. AFFIRMED.

Cynthia Scherrman Sueppel, Charles A. Blades, and Chris J. Scheldrup of Scheldrup Blades Schrock Sand Aranza P.C., Cedar Rapids, for appellant. Thomas M. Wertz and Daniel J. Anderson of Wertz & Dake, P.C., Cedar Rapids, for appellee.

Heard by Vogel, P.J., Potterfield, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).

2 MAHAN, S.J. West Ridge Care Center appeals from the district court's judicial review decision that affirmed the agency decision awarding employee benefits for a permanent total disability to Annette Johnson. West Ridge contends that the commissioner and district court erred in finding Johnson permanently and totally disabled under the traditional analysis and the odd-lot doctrine. We affirm. I. Background Facts and Proceedings. Annette Johnson began working at West Ridge (a residential care facility serving the elderly) as a housekeeper in 1994. Within a year, Johnson began working in the laundry department. Her job duties included loading and

unloading washing machines and dryers, folding and ironing, picking up dirty laundry around the facility, and delivering clean laundry to residents. At the time of the arbitration hearing, Johnson was forty-three years old. She has an

eleventh grade education and has not obtained a GED or high school diploma. Prior to working for West Ridge, Johnson worked briefly at a photography studio, but has no other work experience or marketable skills. Johnson's supervisors at West Ridge, however, have described her as hard-working, smart, and organized--a "star employee" with a perfect attendance record.1 In 2002, Johnson sustained a back injury when she maneuvered to catch a heavy laundry cart that was falling toward a wheelchair-bound resident. An MRI revealed a disk herniation at L4-5 on the right. Dr. Loren Mouw performed a diskectomy and partial facetectomy on Johnson on August 12, 2002, and

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Johnson's supervisors testified that her performance and work ethic remained exemplary even after her injury.

3 released Johnson to work without permanent restrictions on November 10, 2003. On October 20, 2005, Dr. Douglas Sedlacek, the pain management specialist in charge of Johnson's post-surgery care, declared Johnson to be at maximum medical improvement. Dr. Sedlacek gave Johnson several work restrictions: (i) (ii) (iii) (iv) (v) (vi) One eight-hour shift per day with a maximum of 32 hours weekly; 20 lb lifting restriction; No bending at the waist to the floor; Sit as needed; Continue use of a helper 4 hours of the 8 hour shift; and Possibly schedule to work only two days in a row.

On January 23, 2007, Dr. Sedlacek imposed a three-week trial restriction of sixhour shifts per day to see if Johnson's pain improved. Joh nson continued to work six-hour shifts as of the time of the arbitration hearing. Johnson was issued two different impairment ratings: Dr. William Roberts assigned an impairment of seven percent body as a whole on December 6, 2005, and Dr. John Kuhnlein assigned an impairment of fifteen percent body as a whole on November 29, 2006. At Johnson's request, vocational specialist Laughlin's report

Barbara Laughlin authored a report on January 3, 2007. included the following findings:

Ms. Johnson has significant restrictions and is currently being greatly accommodated by her employer. However, in terms of her employability, it is necessary to look beyond one employer. It is possible that she could be fired, her employer could be bought by another, or the company could go out of business. . . . It is unlikely that any other employer would hire Ms. Johnson for comparable work and also hire a helper to assist her for four hours per day. This is particularly true in light of the fact that she has no unique or unusual skills to bring to the labor market. If Ms. Johnson were to seek work elsewhere, it is my opinion that she would face extreme difficulty in obtaining employment. Additionally, she does not hold a high school diploma or GED,

4 which is sought after by employers in even factory or unskilled work. West Ridge accommodated Johnson's restrictions and she was able to maintain her employment.2 from her injury. However, Johnson continued to experience pain

Eventually, on June 14, 2006, Johnson filed for workers'

compensation benefits. After an arbitration hearing on March 8, 2007, the deputy workers' compensation commissioner determined Johnson was permanently and totally disabled, under both the odd-lot doctrine and by traditional analysis. On April 28, 2008, the commissioner affirmed and adopted the deputy's decision as final agency action with additional analysis. On judicial review, the district court affirmed the agency's decision. West Ridge now appeals. II. Scope and Standard of Review. Iowa Code chapter 17A governs our review of the decisions of the workers' compensation commissioner. Iowa Code

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