Legal

Worker’s Inability to Speak English Appropriately Considered in Disability Ruling: Court

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.

Roberto Ceniceros writes for Business Insurance, a sister publication of Workforce Management. To comment, email editors@workforce.com.

Stay informed and connected. Get human resources news and HR features via Workforce Management’s Twitter feed or RSS feeds for mobile devices and news readers.

Roberto Ceniceros writes for Business Insurance, a sister publication of Workforce Management.

What’s New at Workforce.com?

blog workforce

Come see what we’re building in the world of predictive employee scheduling, superior labor insights and next-gen employee apps. We’re on a mission to automate workforce management for hourly employees and bring productivity, optimization and engagement to the frontline.

Book a call
See the software

Related Articles

workforce blog

Compliance

Minimum Wage by State in 2023 – All You Need to Know

Summary Twenty-three states and D.C. raised their minimum wage rates in 2023, effective January 1.  Thr...

federal law, minimum wage, pay rates, state law, wage law compliance

workforce blog

Legal

New Labor Laws Taking Effect in 2023

The new year is fast approaching, and with its arrival comes a host of new labor laws that will impact ...

labor laws, minimum wage, wage and hour law

workforce blog

Legal

Wage and Hour Laws in 2022: What Employers Need to Know

Whether a mom-and-pop shop with a handful of employees or a large corporation staffing thousands, compl...

compliance, wage and hour law