                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1299
                             Filed November 8, 2017

VICKY NORTON,
     Petitioner-Appellant,

vs.

HY-VEE, INC.,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,

Judge.



      An injured worker appeals the district court’s denial of her petition for

judicial review asserting the workers’ compensation commissioner misinterpreted

Iowa law addressing accommodated work. AFFIRMED.



      Daniel J. Anderson of Wertz, Dake & Anderson, Cedar Rapids, for

appellant.

      Cynthia S. Sueppel of Scheldrup Blades Smith Schrock P.C., Cedar

Rapids, for appellee.



      Heard by Vogel, P.J., and Tabor and Bower, JJ.
                                             2


VOGEL, Presiding Judge.

       Vicky Norton appeals the district court’s denial of her petition for judicial

review, which alleged the workers’ compensation commissioner misinterpreted

Iowa law regarding the impact accommodated work has on an industrial disability

rating. Because we conclude the commissioner did not misinterpret Iowa law, we

affirm the decision of the district court.

I. Background Facts and Proceedings.

       Norton injured her neck and back at work on April 2, 2009. The employer,

Hy-Vee, accepted the injury and paid workers’ compensation benefits but

disputed certain aspect of Norton’s claim. Norton filed an arbitration petition with

the workers’ compensation commission in 2012, and the matter proceeded to a

hearing on February 14, 2014. The presiding deputy commissioner concluded,

among other things, Norton reached maximum medical improvement for her

injury on November 16, 2011, Norton’s work injury contributed to her mental

health issues of anxiety and depression, and Norton sustained a seventy-percent

industrial disability. In assigning the disability rating, the deputy stated:

              It was clear from the testimony of the witness who worked
       with [Norton], she was motivated and a valuable employee both
       before and after the injury. [Norton’s] current supervisor will
       continue to employ [Norton] with her restrictions. [Norton] has
       developed unique skills that allow her to be an exceptional
       pharmacy technician. She is very productive in the current
       employment niche. However, if [Norton] was not able to work in
       this specific vocational area, [she] would not likely be employed.
       [Norton] is only able to work 6 hours per day. [She] is working 25
       percent less for her employer, a significant reduction in her ability to
       work.
              [Norton’s] anxiety and depression are part of [her] work
       injury. Neither Dr. Netolicky nor Dr. March have imposed any
       specific restriction based upon these conditions at the time of the
       hearing.
                                           3


              Considering the situs and severity of [Norton’s] injury, the
       length of her healing period, her motivation level, her age,
       education, employment background, ability to retrain, her
       permanent impairment, permanent restrictions, and all other
       industrial disability factors outlined by the Iowa Supreme Court, I
       find [Norton] has proven a [seventy] percent loss of future earning
       capacity as a result of the April 2, 2009 work injury.

       Both parties appealed the deputy’s decision to the workers’ compensation

commissioner; Norton sought permanent total disability benefits, and Hy-Vee

claimed the industrial disability award should have been twenty-five percent

rather than a seventy percent.          The commissioner issued a decision on

December 16, 2015, largely affirming the deputy’s ruling1 and providing

additional analysis.    With respect to the award of seventy-percent industrial

disability, the commissioner stated:

               The presiding deputy was correct in rejecting [Hy-Vee’s]
       argument that a permanent 25 percent reduction in [Norton’s] work
       hours as a pharmacy technician at [Hy-Vee] does not result in
       significant permanent disability. Such a reduction in work hours
       results in a very significant loss of job opportunities in the labor
       market.
               On the other hand, the presiding deputy was correct in
       rejecting [Norton’s] argument that she is permanently and totally
       disabled. While [Norton] can no longer work more than 30 hours
       per week, and she is being accommodated for that disability by [Hy-
       Vee], she continues in suitable and stable employment. [Norton’s]
       managers at [Hy-Vee] testified at hearing, without contradiction,
       that [Norton] is a highly valued employee who probably would find
       new employment, even with her permanent restrictions, should she
       leave her employment with [Hy-Vee]. [Norton’s] managers also
       testified that the high quality of [Norton’s] work, along with her
       extra-duty tasks more than make up for any of her deficits. A
       scheduled work week of 30 hours per week is considered full time,

1
  The commissioner did reverse the deputy’s award of penalty benefits. Norton included
this issue in her petition for judicial review.           The district court reversed the
commissioner’s denial of penalty benefits and remanded the matter to the agency.
Before the remand could be completed, Norton filed a notice of appeal to this court.
However, the issue of the award of penalty benefits is not raised on appeal, so the
district court’s decision on that issue remains as the final decision.
                                         4


       and gainful employment, in many employments in our current labor
       market.
              Many argue [Norton’s] accommodated work should not be
       considered because a future loss of employment due to a
       discontinuance of those accommodations cannot form the basis of
       a review-reopening proceeding, and they cite for this proposition
       the Iowa Supreme Court decision in U.S. West v. Overholser, 566
       N.W.2d 873 (Iowa 1997).               However, this would be a
       misinterpretation of the court’s opinion in Overholser. In that case,
       the claimant failed to establish that the loss of her employment was
       due to a discontinuance of an accommodation and the claimant
       also failed to establish that the prior agreement for settlement was
       lower due to her accommodated employment. The court in
       Overholser cited favorably their opinion in Gallardo v. Firestone Tire
       & Rubber Co., 482 N.W.2d 393, 396 (Iowa 1992), which allowed a
       review-reopening proceeding and an increase in compensation
       when the prior agency decision specifically stated that the award
       was adjusted downward due to continued accommodated
       employment. Overholser, 566 N.W.2d at 876-77.
              In this case, the award of permanent disability is based on
       [Norton’s] ability to continue in her pharmacy technician position at
       Hy-Vee and her ability to find new employment should she ever
       leave Hy-Vee.

       Both parties sought judicial review of the commissioner’s decision in the

district court.   Norton claimed the commissioner incorrectly interpreted the

applicable controlling case law and impermissibly decreased her industrial

disability rating based on Hy-Vee’s accommodation of her permanent work

restrictions. Hy-Vee sought a reversal of the agency decision that concluded

Norton’s work injury caused her mental injury. In July 2016, with respect to

Norton’s claim, the district court affirmed the commissioner’s decision,

concluding:

              Here, [the commissioner] considered Norton’s work history,
       work schedule, employee value, and accommodations in affirming
       [the deputy’s] industrial disability award. The commissioner noted
       that Norton has worked for five years after injuring her back at Hy-
       Vee. He noted that Norton continues to be a valuable employee at
       Hy-Vee, and that thirty hour workweeks are considered full-time,
       gainful employment in some jobs in the current labor market.
                                         5


       Finally, he noted that Norton’s colleagues expressed their belief
       that Norton would probably find new employment; even with her
       permanent restrictions should she leave Hy-Vee.                    The
       commissioner’s conclusions support a finding that he correctly
       interpreted Murillo,[2] Ciha,[3] and Thilges[4] by focusing on Norton’s
       ability to earn in the competitive job market.
                Extending the analysis even further affirms the
       commissioner correctly interpreted Overholser, which states: “the
       injured’s loss of earning capacity is properly viewed ‘in terms of the
       injured worker’s present ability to earn in the competitive job market
       without regard to the accommodation furnished by one’s present
       employer.’” [Overholser, 566 N.W.2d at 876]. “[T]he disability
       award must not be adjusted downward because the worker is
       receiving sheltered employment or merely because the employer
       modifies its job requirements in light of an employee’s disability.”
       Id. The court, in Overholser, noted that “there was no evidence that
       Frances’[s] disability rating was ‘adjusted downward’ because of
       accommodation by U.S. West. [Id.] Additionally, the court was not
       convinced that U.S. West “actually accommodated her original
       injury.” Id. at 877. Instead, the Court concluded that “the record
       does not support the contention that her work was modified . . . to
       accommodate her injury or that she received sheltered employment
       which distorted her true earning capacity.” Id.
                First, as in Overholser, there is no evidence in the record
       that Norton’s disability rating was “adjusted downward” due to an
       accommodation.         [The deputy] awarded Norton an industrial
       disability rating of [seventy percent] after considering each opinion
       provided by Norton’s doctors, Norton’s motivation level, age,
       education, employment background, severity of injury, length of
       healing, and other factors outlined by the Iowa Supreme Court.
       McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa
       1980). [The deputy] assessed each doctors’ medical history,
       history with Norton, and type of examination performed. [The
       deputy] assessed more weight to some doctors, rather than others.
       For example, [the deputy] found the opinions of Dr. Netolicky and
       Dr. March more reliable than those of Dr. Sundermann and Dr.
       Mooney due to their extensive experience with Norton’s medical
       history.
                “As we have explained, the commissioner, as fact finder, is
       responsible for determining the weight to be given expert
       testimony.” Sherman v. Pella Corp., 576 N.W.2d 312, 321 (Iowa
       1998). “The commissioner is free to accept or reject an expert’s
       opinion in whole or in part, particularly when relying on a conflicting

2
  See Murillo v. Blackhawk Foundry, 571 N.W.2d 16 (Iowa 1997).
3
  See Quaker Oats Co. v. Ciha, 552 N.W.2d 143 (Iowa 1996).
4
  See Thilges v. Snap-On Tools Corp., 528 N.W.2d 614 (Iowa 1995).
                                        6

      expert opinion.” Id. [The commissioner] assessed similar weight to
      Dr. Netolicky[’s], Dr. March[’s], and Dr. Perri’s opinions due to their
      more recent experience with Norton. Therefore, [the deputy’s]
      award of [seventy percent] disability, and [the commissioner’s]
      affirmation, was supported by substantial evidence and was not
      adjusted downward from another rating. Iowa Code § 17A.19(10)(f)
      [(2015)].
               Second, the court in Overholser, focused on U.S. West’s
      accommodations and their effect on Frances’[s] true earning
      capacity.     While the Overholser court was not convinced
      accommodations were present, Hy-Vee acknowledges they
      accommodated Norton. However, Hy-Vee does not believe those
      accommodations distorted Norton’s true earning capacity or her
      ability to compete in the marketplace. The commissioner noted that
      Norton is a highly valued employee who would likely find new
      employment, even with her permanent restrictions. Additionally,
      Hy-Vee has not created a new job for Norton. Norton’s supervisors
      typically place extra-duty tasks on her because they know she can
      complete them, as well as schedule her during some of pharmacy’s
      busiest hours. Therefore, Hy-Vee’s accommodation of Norton’s
      disability does not equate to “sheltered employment” and [the
      commissioner’s] conclusion that Norton was someone who would
      probably find new employment is supported by substantial
      evidence.
               Accordingly, the commissioner correctly interpreted
      Overholser. Overholser, as well as Murillo, Ciha, and Thilges,
      emphasize awarding a disability rating that reflects true earning
      capacity. To determine the correct disability award, the deputy
      must not adjust the award downward due to accommodations when
      there is not a similar job available in the marketplace. In affirming
      [the deputy], [the commissioner] neither adjusted downward, nor
      considered Norton’s employment to be “sheltered.” Instead, he
      concluded the [seventy percent] disability rating was “based on
      [Norton’s] ability to continue in her pharmacy technician position at
      Hy-Vee and her ability to find new employment should she ever
      leave Hy-Vee.” Therefore, the appeal decision is not based upon
      an irrational, illogical, or wholly unjustifiable interpretation of a
      provision of law. Iowa Code § 17A.19(10)(l).

Norton appeals claiming the district court incorrectly interpreted her claim as a

challenge to the substantial evidence supporting the agency’s decision, rather

than a challenge to the agency’s interpretation of Iowa law. She further asserts

the agency did make a “downward adjustment” to her industrial disability rating
                                        7

based on an incorrect interpretation of Overholser and Gallardo.           Hy-Vee

defends the agency’s decision, asserting no downward adjustment was made

and the agency correctly interpreted the applicable case law.

II. Scope and Standard of Review.

      Our review of the workers’ compensation commissioner’s decision is

governed by Iowa Code chapter 17A. Ramirez-Trujillo v. Quality Egg, L.L.C.,

878 N.W.2d 759, 768 (Iowa 2016).        “We will apply the standards of section

17A.19(10) to determine whether we reach the same results as the district court.”

Burton v. Hilltop Care Ctr., 813 N.W.2d 250, 255–56 (Iowa 2012). Because of

the differing standards of review in Iowa Code section 17A.19(10), it is vital that

parties “search for and pinpoint the precise claim of error on appeal.” Meyer v.

IBP, Inc., 710 N.W.2d 213, 219 (Iowa 2006).

      In this case, Norton asserts the commissioner misinterpreted the

controlling supreme court case law regarding how accommodated work is

considering in setting an industrial disability rating. We review this claim under

section 17A.19(10)(c), to determine whether the substantial rights of Norton were

prejudiced because the agency’s decision was “[b]ased on an erroneous

interpretation of a provision of law whose interpretation has not clearly been

vested by a provision of law in the discretion of the agency.” See Neal v. Annett

Holdings, Inc., 814 N.W.2d 512, 518 (Iowa 2012) (“[W]e have stated that no

deference is given to the commissioner’s interpretation of law because the

‘interpretation of the workers’ compensation statutes and related case law has

not been clearly vested by a provision of law in the discretion of the agency.’”

(emphasis added)). Because the agency has not been vested with the authority
                                          8


to interpret supreme court case law, “we do not give deference to the agency’s

interpretation and will substitute our judgment . . . if we conclude the [agency]

made an error of law.” Simon Seeding & Sod, Inc. v. Dubuque Human Rights

Comm’n, 895 N.W.2d 446, 456 (Iowa 2017) (citation omitted).

III. Accommodated Work.

       Norton asserts the commissioner incorrectly interpreted the supreme

court’s case law pertaining to the effect an employer’s accommodation of an

injured employee’s work restriction has on the injured employee’s industrial

disability rating. Norton claims she is entitled to permanent total disability but the

commissioner erroneously awarded only seventy percent industrial disability after

making a “downward adjustment” based on Hy-Vee’s accommodation of her

work restrictions. It is her contention that the commissioner incorrectly relied on

the cases of Gallardo and Overholser in making the downward adjustment.

       In Gallardo the supreme court was asked to address the issue of “whether

substantial evidence in the record supports the agency’s conclusion that

Gallardo’s earning capacity remained unchanged” between a first and second

review-reopening proceeding. 482 N.W.2d at 396. In reciting the underlying

facts of Gallardo’s case, the supreme court noted the first review-reopening

agency decision had “reduced” Gallardo’s industrial disability rating by ten

percent “based on the company’s professed willingness to accommodate

Gallardo’s medical restrictions with continued employment.” Id. at 395. After the

employer could no longer accommodate the restrictions, Gallardo applied for

additional benefits through a second review-reopening proceeding.           Id.   The

commissioner denied additional benefits, finding a lack of evidence to support a
                                           9

change in Gallardo’s physical condition.          Id.      The supreme court found

substantial evidence did not support the commissioner’s rejection of Gallardo’s

second review-reopening petition and remanded the case to the agency to adjust

Gallardo’s award “upward by ten percent to reflect the full impact of the industrial

disability determined at the first hearing.” Id. at 397.

       The supreme court in Gallardo was not asked to decide the legal validity

of the commissioner’s decision in the first review-reopening proceeding to

“reduce” the worker’s industrial disability rating based on the employer’s work

accommodation.       The supreme court was only asked to decide whether

substantial evidence supported the commissioner’s second review-reopening

decision.   Thus, we agree with Norton that Gallardo decision should not be

interpreted as the supreme court’s approval of a “downward adjustment” to an

industrial disability rating based on an employer’s accommodation of work

restrictions.

       Likewise, the Overholser case does not support the proposition that an

industrial disability rating can be reduced by the employer’s accommodation of

work restrictions. To the contrary, the supreme court in Overholser specifically

stated: “[T]he disability award must not be adjusted downward because the

worker is receiving sheltered employment or merely because the employer

modifies its job requirements in light of an employee’s disability.” 566 N.W.2d at

876 (emphasis added). While the injured worker in Overholser pointed to the

Gallardo case in support of her claim that her prior workers’ compensation

settlement should be adjusted upward after she was laid off by her employer, the

supreme court distinguished the facts of the two cases and ultimately affirmed
                                           10


the commissioner’s refusal to increase the industrial disability award based on

the injured worker’s dismissal from her job. Id. at 876–77.

       The supreme court has repeatedly stated that an industrial disability rating

is to be based on the injured workers’ “earning capacity”—the worker’s “present

ability to earn in the competitive job market”—“without regard to the

accommodation furnished by one’s present employer.” Thilges, 528 N.W.2d at

617; accord Ciha, 552 N.W.2d at 157 (“Although we applaud the efforts of [the

employer] in modifying the workplace to accommodate Ciha’s disability, such

efforts are not determinative of Ciha’s industrial disability rating.”).

       In Murillo, the supreme court clarified how the employer’s accommodation

of an injured worker’s work restrictions factors into the earning capacity

assessment:

                Neither Thilges nor Ciha reached the same factual situation
       here however. They stand only for the proposition that the
       industrial commissioner should not be influenced by the mere fact
       that an employer has found a place to employ an injured worker.
       What Thilges and Ciha did not decide is whether the industrial
       commissioner could consider whether the newly-furnished job—and
       the injured worker’s ability to function in it—cast light on the injured
       worker’s ability to earn a living in the market place. The worker’s
       ability to function in some new jobs might cast light on that
       question. The ability to function in other jobs might not cast new
       light on that question. The transferability of the worker’s skills is a
       factual question to be decided by the commissioner, but it must be
       based on evidence of wages available from those skills in the open
       market. We think the proper rule should be that an employer’s
       special accommodation for an injured worker can be factored into
       the award determination to the limited extent the work in the newly
       created job discloses that the worker has a discerned earning
       capacity. To qualify as discernible, it must appear that the new job
       is not just “make work” provided by the employer, but is also
       available to the injured worker in the competitive market. We
       recently hinted the same rule in another context in [Overholser, 566
       N.W.2d at 876] (earning capacity measured by employee’s own
       ability to compete in the labor market).
                                       11



571 N.W.2d at 18 (emphasis added). Because the court’s holding in Murillo was

a new rule, the supreme court remanded the case to the agency “to accord the

employer the opportunity to make an appropriate showing on the accommodation

question.” Id. at 19 (noting there was no evidence in the record whether the

accommodated position was available in the labor market and whether the pay

for the position was comparable to other positions in the market). This new rule

was applied by the supreme court in Ellingson v. Fleetguard, Inc.:

      [A]n employer’s accommodation of an employee’s inability to
      perform that person’s usual work may only be considered if such
      accommodation would be available in the general labor market.
      Otherwise, the loss of earning capacity must be based on the
      injured worker’s present ability to earn in the competitive job market
      without regard to any accommodation furnished by that person’s
      present employer.

599 N.W.2d 440, 445 (Iowa 1999) (citation omitted), overruled on other grounds

by Waldinger Corp. v. Mettler, 817 N.W.2d 1 (2012). Again, because the agency

in Ellingson did not make a finding concerning “whether the type of work

accommodations furnished to Ellingson by her employer would be available in

the competitive job market”—the agency’s decisions predated the supreme

court’s Murillo decision—the case was remanded to the agency to make those

findings. Id. at 445–46.

      Further, in 2004, the supreme court affirmed the commissioner’s finding of

permanent total disability in a review-reopening proceeding for a worker who

remained employed earning twice what he earned at the time of the initial

hearing. See Acuity Ins. v. Foreman, 684 N.W.2d 212, 219–20 (Iowa 2004),
                                         12

abrogated on other grounds by Kohlhaas v. Hog Slat, Inc., 777 N.W.2d 387 (Iowa

2009). The Foreman court stated:

               In deciding that Foreman was totally disabled, the
       commissioner concluded “independent work for another employer
       [was] not available in the competitive job market given claimant’s
       disability.”    The commissioner placed little importance on
       Foreman’s current employment, concluding it was only due to
       Foreman’s management and ownership interest in his electrical
       contracting business that he was able to continue working. This
       conclusion was properly considered by the commissioner in
       assessing Foreman’s earning capacity because earning capacity
       must be evaluated in terms of “the competitive job market without
       regard to the accommodation furnished by [a worker’s] present
       employer.” [Overholser, 566 N.W.2d at 876] (quoting [Thilges, 528
       N.W.2d at 617]). Here, there was no evidence that the work
       performed by the claimant for his own company was transferable to
       the competitive job market. See [Murillo, 571 N.W.2d at 19] (stating
       employer’s re-employment of injured worker in different position is
       relevant insofar as it shows employee has “ability to earn a living in
       the market place”).         Moreover, since Foreman’s continuing
       employment was reasonably viewed by the commissioner as an
       accommodation that disclosed no discernible earning capacity, the
       increase in Foreman’s earnings is of relatively minor importance.
       See Overholser, 566 N.W.2d at 876 (“If post-injury earnings do not
       reflect [the] ability to compete with others for wages, they are not a
       proper measure of earning capacity.” (citation omitted.)).

Id. at 220 (emphasis added).

       Based on the above law, we agree with Norton that an injured worker’s

performance of accommodated work, in and of itself, many not be used to reduce

a worker’s industrial disability rating.5 But the injured worker’s performance of


5
 We note the legislature recently amended Iowa Code section 85.34(u), and the statute
now specifically states, in part:
      If an employee who is eligible for compensation under this paragraph
      returns to work or is offered work for which the employee receives or
      would receive the same or greater salary, wages, or earnings than the
      employee received at the time of the injury, the employee shall be
      compensated based only upon the employee’s functional impairment
      resulting from the injury, and not in relation to the employee’s earning
      capacity. Notwithstanding section 85.26, subsection 2, if an employee
      who is eligible for compensation under this paragraph returns to work with
                                           13


accommodated work can be considered in assessing the industrial disability

rating if the work being performed is “transferrable to the competitive job market,”

id., and “discloses that the worker has a discerned earning capacity.” Murillo,

571 N.W.2d at 18. “To qualify as discernible, it must appear that the new job is

not just ‘make work’ provided by the employer, but is also available to the injured

worker in the competitive market.” Id.

       While we agree with Norton on the state of the current law regarding

accommodated work, we disagree that the commissioner misinterpreted the law

in Norton’s case. In setting the seventy-percent industrial disability rating, the

deputy commissioner noted Norton was motivated and a valuable member of the

pharmacy team at Hy-Vee, Norton had developed “unique skills,” and she was

“very productive in the current employment niche,” but also the deputy noted she

would likely not be able to work out in the specific vocational area. The deputy

did not conclude Norton would be unable to find work apart from Hy-Vee but

instead found she would be limited to the “specific vocational area”—pharmacy

technician work. In determining the industrial disability rating, the deputy stated:

              Considering the situs and severity of [Norton’s] injury, the
       length of her healing period, her motivation level, her age,
       education, employment background, ability to retrain, her
       permanent impairment, permanent restrictions, and all other
       industrial disability factors outlined by the Iowa Supreme Court, I

         the same employer and is compensated based only upon the employee’s
         functional impairment resulting from the injury as provided in this
         paragraph and is terminated from employment by that employer, the
         award or agreement for settlement for benefits under this chapter shall be
         reviewed upon commencement of reopening proceedings by the
         employee for a determination of any reduction in the employee’s earning
         capacity caused by the employee’s permanent partial disability.
2017 Iowa Acts ch. 23, § 8. Because this legislative amendment occurred subsequent
to Norton’s injury and the agency’s decision in this case, we need not address the effect
of this legislative change on the supreme court’s case law on accommodated work.
                                       14


      find [Norton] has proven a [seventy] percent loss of future earning
      capacity as a result of the April 2, 2009 work injury.

      On intra-agency appeal, the commissioner affirmed the deputy’s seventy-

percent rating, concluding the facts did not support a lower rate, as argued by

Hy-Vee, or a permanent total rating as argued by Norton. The commissioner

found the accommodated work being provided was “suitable and stable

employment” and credited Norton’s manager’s testimony that Norton “probably

would find new employment, even with her permanent restrictions, should she

leave her employment with [Hy-Vee].”        The commissioner also noted, “A

scheduled work week of 30 hours per week is considered full time, and gainful

employment, in many employments in our current labor market.”

      The commissioner then went on to address the concern that if Norton lost

her employment at Hy-Vee because the accommodations were discontinued,

then she would not qualify for a review-reopening proceeding.                 The

commissioner stated Norton would be eligible for a review-reopening, noting the

Gallardo case allowed a review-reopening proceeding to result in an increased

industrial disability rating when the accommodated work was no longer provided

because the initial award indicated the rate was based on accommodated work.

The commissioner then noted the seventy-percent industrial disability rate was

based on Norton’s ability to continue at her job at Hy-Vee and her ability to find

new employment if she left Hy-Vee.

      Contrary to Norton’s claims, we do not interpret the language used in the

commissioner’s decision to indicate that the commissioner found Norton to be

permanently totally disabled but then reduced the rating to seventy-percent
                                           15


based on the work accommodation. The seventy-percent rating was based on

Norton’s current condition, but the commissioner wanted to assure Norton that a

review-reopening proceeding would be available should her earning capacity

change in the future. See Kohlhaas, 777 N.W.2d at 392–93 (noting a review-

reopening proceeding can be based on the “worsening of the claimant’s physical

condition,” the “diminution of earning capacity,” the development of a permanent

disability from a temporary disability, the discovery of critical facts unknown and

not discoverable at the time of the prior award, or the development of industrial

disability caused by a scheduled member injury).

       Norton claims the commissioner has subsequently cited her case as

authority in five other agency decisions for support for the position that a

downward departure based on accommodated work is acceptable. She claims

the commissioner’s citation of her case in those other decisions demonstrates

the commissioner misinterpreted Iowa law in this case and shows his intent to

depart from long-standing supreme court precedent. However, the validity of the

interpretation of Iowa law in those other five agency decisions is not before us, 6

nor does it lead us to conclude the commissioner’s interpretation of Iowa law in

this case was incorrect. We affirm the district court’s decision denying Norton’s

petition for judicial review.

       AFFIRMED.

       Bower, J., concurs; Tabor, J., dissents.



6
  If the commissioner’s interpretation of the law on accommodated work is incorrect in
the cases cited by Norton, that interpretation can be corrected through judicial review in
those cases.
                                         16


TABOR, Judge. (dissenting)

      I respectfully dissent. Under Iowa case law, the workers’ compensation

commissioner should view an injured worker’s loss of earning capacity in terms

of her present ability to earn in the competitive job market without regard to any

accommodation furnished by her present employer.7 See U.S. West Commc’n,

Inc. v. Overholser, 566 N.W.2d 873, 876 (Iowa 1997) (stating “an injured

employee’s earning capacity must [not be measured] by the largesse of a

particular employer” (citation omitted)); Thilges v. Snap-On Tools Corp., 528

N.W.2d 614, 617 (Iowa 1995) (“Claimant is not likely to find other employers in

the competitive employment market as understanding, cooperative, and helpful

as this employer has been.”). The commissioner did not follow the case law in

Norton’s   case;    instead    the    agency   specifically   considered   Norton’s

accommodated employment in its award of an industrial disability of seventy

percent. Accordingly, we should remand this case for the commissioner to apply

the proper legal standard.           See Thilges, 528 N.W.2d at 617 (stating

commissioner correctly viewed loss of earning capacity “in terms of the injured

worker’s present ability to earn in the competitive job market without regard to the

accommodation furnished by one’s present employer” (emphasis added)); see

also Murillo v. Blackhawk Foundry, 571 N.W.2d 16, 18 (Iowa 1997) (“[I]t must

appear that the new job . . . is also available to the injured worker in the

competitive labor market.”).




7
 Hy-Vee does not assert that a recent legislative amendment to Iowa Code section
85.34(u) would govern Norton’s industrial disability rating.
                                         17

      The commissioner’s decision misinterpreted Overholser and Gallardo v.

Firestone Tire & Rubber Co., 482 N.W.2d 393, 395–96 (Iowa 1992) (stating a

reduction of industrial disability based upon accommodated employment in an

earlier proceeding was not appealed). The commissioner prefaced his analysis

with the statement “many argue” that accommodated work should not be

considered when determining future loss of employment opportunities. He then

suggested that under the authority of Gallardo and Overholser, the agency was

allowed to make a downward adjustment of an industrial disability award due to

continued accommodation by the injured worker’s present employer as long as

the agency stated it was doing so. The commissioner acknowledged basing

Norton’s award of permanent disability both on Norton’s ability to continue in her

pharmacy technician      position   at   Hy-Vee   under   a   six-hour   work   day

accommodation with breaks as needed and on her ability to find new

employment should she ever leave Hy-Vee. The commissioner should not have

considered Norton’s ability to continue in the accommodated position created by

her current employer in its analysis of her request for total permanent disability.

See Overholser, 566 N.W.2d at 877 (stating the issue is whether the “disability

rating is artificially low and contingent upon [the employee’s] continued

employment with [an employer providing an accommodation]” and concluding no

evidence showed “she received sheltered employment, which distorted her true

earning capacity” (emphasis added)).

      The majority agrees with Norton on the current state of the law regarding

accommodated work, yet refuses to hold the agency to the correct legal

standard. It is not a mystery that the agency believes it is empowered to make a
                                          18


downward departure in a worker’s industrial disability rating based on the

worker’s current accommodated work—the commissioner explicitly based

Norton’s award on Hy-Vee’s accommodated employment without a finding

Norton’s accommodated job was not “sheltered employment” or a finding Hy-Vee

had proven the same job could be found in the broader labor market. 8 We owe

no deference to the agency’s legal interpretation in this case. See Neal v. Annett

Holdings, Inc., 814 N.W.2d 512, 518 (Iowa 2012).

       We also note the agency has perpetuated its misinterpretation several

times after resolving Norton’s intra-agency appeal, explicitly citing the

commissioner’s decision in Norton’s case as precedential for other workers’

claims involving accommodation. See, e.g., Baker v. Bridgestone/Firestone, File

No. 504073, 2016 WL 1554240, at *11 (Remand Dec. Apr. 13, 2016) (rejecting

claimant’s     argument       that    agency       should      not     consider     his

current accommodated work in assessing industrial loss); Kincaid v. Iowa Dep’t

of Transp., File No. 5044860, 2016 WL 1291780, at *1 (App. Dec. Mar. 30, 2016)

8
  Norton testified, to work the accommodated six-hour schedule, she sometimes needed
to rest on the floor, but she needed to work six hours to maintain her health insurance.
Hy-Vee acknowledged Norton’s injury prevented her from working on the computer or
answering the phone. Hy-Vee’s treating doctor opined:
        I do not believe she is or will ever be capable of maintaining full time
        employment. Her pain is severe, life changing and permanent. It’s all
        she can do to struggle every day to try and get through the designated
        [six] hour work day and then get home where she can then take her rapid
        acting analgesic . . . and then basically sit or lay around the rest of the
        day and not get much of anything done at home without further struggle.
        She needs the pain relief badly by the time she gets home. She reports
        she never takes [a controlled-substance drug] at work as it makes her
        sleepy and she needs to be alert at work.
                ....
                . . . [T]his woman suffers from chronic severe pain related to a
        work injury. I believe her pain is neuropathic and there is no cure . . . . It
        would be nice if she could have her hours at the pharmacy limited to [four]
        hours per day and still retain an “affordable health insurance.”
                                         19


(“The [industrial disability award was proper due to his ability to continue in his

job with accommodations by the employer. Claimant asserts the award should

be much higher because the employer has not finally determined that those

accommodations will continue in the future. However, should claimant no longer

be able to continue in his current job or in similar employment without loss of

wages as a result of his work injury, such would constitute a material change of

condition” for a “timely petition for review reopening”); Chapman v. Abbe, Inc.,

File No. 5047167, 2016 WL 1533148, at *12 (Arb. Dec. Apr. 7, 2016) (rejecting

assertion “this agency should ignore claimant's current accommodated work in

assessing industrial disability”); Franks v. CenturyLink, Inc., File No. 5051501,

2016 WL 1272070, at *8 (Arb. Dec. Mar. 29, 2016) (making a specific adjustment

downward and stating, if claimant loses his current job and is unable to secure a

similar job in the labor market, he “could seek re-evaluation of his disability in a

timely review-reopening proceeding) (emphasis added)); Pablo Argueta v. United

Brick & Tile Co., File No. 5044420, 2015 WL 9419948, at *10 (Arb. Dec. Dec. 22,

2015) (“[A] specific adjustment downward is set forth in this decision.”).

       The majority emphasizes these later rulings are not before us, and notes if

the agency was incorrect in its interpretation of the law on accommodated work

in reducing the awards of those other workers, then the agency’s mistakes can

be corrected through judicial review. But why isn’t this court fixing the problem

today? The majority gives the agency the benefit of the doubt that it did not

apply the wrong legal standard in Norton’s case, all the while knowing that in the

interim, the agency is flouting its legal misinterpretation, to which we owe no

deference, in its ongoing decision making.       As the reviewing court, it is our
                                          20


obligation to remand this case to ensure the agency’s analysis of Norton’s

disability is viewed under the correct legal standard.9

       Accordingly, the commissioner should be instructed on remand to

determine whether Hy-Vee’s accommodations meet the requirements for

“sheltered employment.” Additionally, the commissioner should be instructed to

determine whether Hy-Vee met its burden of                  establishing the same

accommodated job existed in the competitive labor market.                 Finally, the

commissioner should apply the law correctly. See Quaker Oats v. Chia, 552

N.W.2d 143, 157–58 (Iowa 1996) (rejecting claim employee deserved a lower

disability rating due to employer’s accommodation, which is admirable, but “such

efforts are not determinative of [employee’s] industrial disability rating”); Wal-Mart

Stores v. Henle, No. 2014 WL 69540, at *7 (Iowa Ct. App. Jan. 9, 2014)

(rejecting employer’s interpretation of Murillo and Thilges and ruling “employer’s

accommodation of an injured employee—like Henle’s part-time job and excused

sick days—may only be factored into an industrial disability award if the

commissioner finds a position equivalent to the newly created job is available in

the competitive labor market”).




9
  Neither are we convinced the fact Norton “might” be eligible for a review-reopening
proceeding changes the resolution of the “legal misinterpretation” issue herein. The
opportunity for a claimant to file a review-reopening is not open-ended; the legislature
has imposed time constraints. See Iowa Code § 85.26(1)–(2).
