Time & Attendance
By Roberto Ceniceros
Nov. 21, 2012
Consideration of an injured worker’s inability to speak English was “entirely appropriate” in finding he suffered a 100 percent earning capacity loss after falling at work, the Iowa Court of Appeals ruled.
The case of Merivic Inc. and Zurich North America v. Enrique Gutierrez involved a workers’ compensation claimant who had a ninth-grade education and a “limited working knowledge” of English despite having lived in the United States for 34 years, according to the opinion.
After falling from a height of about 10 feet and undergoing surgeries to repair a wrist and a rotator cuff, Gutierrez did not work for Merivic again and was unable to find work elsewhere.
He petitioned for workers’ comp benefits and a deputy workers’ comp commissioner determined after an arbitration hearing that Gutierrez suffered a 100 percent total loss of his earning capacity as a result of the work injury.
The deputy commissioner partially relied on a vocational rehabilitation expert report stating Gutierrez’s limited English skills adversely impacted his employability. The deputy commissioner thus rejected the employer’s argument that Gutierrez’s award of benefits should be reduced based on an alleged lack of motivation to learn English.
The deputy commissioner cited a prior workers’ comp agency decision reached in the case of Lovic v. Construction Products Inc. In that decision, the agency decided to stop penalizing migrant workers for failing to learn English by lowering their awards purportedly due to their lack of motivation.
On appeal, an Iowa workers’ comp commissioner declined to overrule the deputy commissioner’s finding and added that the 100 percent disability determination was based on factors other than Gutierrez’s lack of English fluency.
On Nov. 16, Iowa’s appellate court affirmed the award of permanent total disability benefits.
“Merivic essentially seeks to turn back the clock to the pre-Lovic era when the commissioner accepted a claimant’s failure to learn English as a basis for reducing the claimant’s award,” the court said. “That ship has sailed. Contrary to Merivic’s assertion, Lovic was the agency precedent in effect at the time Gutierrez’s case was decided, and the commissioner’s decision was entirely consistent with that agency precedent.”
The appellate court also ruled that the commissioner’s finding was “not irrational, illogical or wholly unjustifiable” because the commissioner considered other issues related to Gutierrez’s limitations in finding work, such as his advancing age and his diminished post-injury capacity for the physically demanding work that characterized his employment history.
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