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Agency Rules on Apportionment, Employer’s Right to Credit

• Nov 08, 2021

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By Attorney Alison Stewart and Law Clerk Jordan Gehlhaar

Recent arbitration decision, Rife v. P.M. Lattner Manufacturing Company, reviewed apportionment of disability and an employer’s right to a credit. The issue in this case was whether the employer was entitled to a credit for 29.6 percent industrial disability it paid as settlement of a prior shoulder injury.

Claimant Rife worked as a welder at P.M. Manufacturing for most of his career. In 2009 he experienced a work-related right shoulder injury resulting in surgery and permanent functional impairment. Rife and P.M. entered into a full commutation settlement in 2010, which stipulated to a permanent disability of 29.6 percent to the body as a whole. At this time, the shoulder was not a scheduled member, so all shoulder injuries were to the body as a whole. Three different doctors provided impairment ratings, but it was not clear which rating was the basis of the settlement. Rife returned to work for P.M. after this injury.

Claimant Rife had no issues with his right shoulder until experiencing another work-related injury in 2018. He underwent another surgery and was diagnosed with adhesive capsulitis, partial thickness tears of the rotator cuff and labrum, and impingement. The claimant obtained an independent medical examination (IME) that assessed a 19 percent right upper extremity impairment, or 11 percent of the whole person. Importantly, the doctor did not distinguish between the 2009 and 2018 injuries when assessing the claimant’s impairment.

The employer sought apportionment of disability under Iowa Code 85.34(7) for successive disabilities, which provides, in part:

“An employer is not liable for compensating an employee’s preexisting disability that arose out of and in the course of employment from a prior injury with the employer, to the extent that the employee’s preexisting disability has already been compensated under [workers’ compensation law].”

The Deputy found the employer was not entitled to a credit for the loss assigned to the first injury “under the version of Iowa Code section 85.34(7) that is now in effect.” Previous versions of this statute explained how an offset was to be calculated. But in this version, the legislature provided no mechanism for apportioning the loss between a present injury and prior injury.

Additionally, it was reasoned: (1) the settlement agreement for the first injury did not specify what impairment rating the parties adopted, (2) the employer did not obtain an impairment rating for the second injury or an expert opinion apportioning the two injuries, and (3) a claimant with a prior unscheduled shoulder injury and a subsequent scheduled shoulder injury would likely not receive any additional compensation.

The opinion suggests that an employer is more likely to receive a credit where it is clear what impairment rating was used for both the first and second injuries, the second rating doctor differentiates the percentages for each injury, and the employer provides an expert on the issue. However, based on the Agency’s interpretation of the statute, apportionment credit is not likely absent legislative amendment.

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