November 28, 2012

The Effect of English Speaking Ability on Industrial Disability Awards


In Iowa workers' compensation cases involving industrial disability injuries the primary question is how the injury affects the workers' potential earning capacity. Click here to get an overview explanation of the difference between scheduled injuries and industrial disability injuries.

Assessing a worker's loss of potential earning capacity involves analyzing the totality of the circumstances, including the injured employee's age, education, qualifications, experience, motivation, loss of earnings, severity and location of the injury, work restrictions, ability to engage in employment for which the employee is fitted, and the employer's offer of continuing work or failure to offer continuing work.

Industrial disability injuries generally involve the shoulders, the back, the neck, the head, the hips, psychological injuries and chronic pain syndromes. Permanent partial disability (PPD) benefits for industrial disability injuries are generally paid based on a maximum of 500 weeks. For example, if a worker is found to have suffered a 50% industrial disability or loss of earning capacity, the worker is entitled to collect 250 weeks of PPD benefits.

The nature of the industrial disability analysis generally means that a worker with fewer skills and less education will receive a higher industrial disability award for the same injury than a worker with more skills and higher education. For example, a logger and a lawyer might both suffer the same serious low back injury that restricts their ability to lift and bend. For a lawyer these problems would be more of the nature of an inconvenience, and they would not substantially impact his ability to do his job. Therefore, the lawyer and he would not receive a high industrial disability award. However, for a logger these same work restrictions could potentially end his ability to do his regular job. If the logger had a limited education, and all of his jobs had been based on his ability to work hard and perform heavy physical labor, he would receive a much higher industrial disability award than the lawyer.

Iowa work comp law has not been as clear about the effect of a worker's lack of fluency in speaking English. In different cases the Workers' Compensation Commissioner has found that a worker's inability to speak English will increase their industrial disability, and in other cases the Commissioner has found that the inability to speak English should be viewed as a factor that would actually lower industrial disability awards.

In the recent Iowa Court of Appeals case of Merivick, Inc. v. Gutierrez filed on November 15, 2012 the Court ruled that an award of total permanent disability based in part on the injured worker's limited knowledge of English was entirely appropriate, and that all personal characteristics of an employee that affect employability may be considered.

The Iowa Court of Appeals approvingly cited to reasoning by the Workers' Compensation Commissioner to reject the earlier line of cases which found that a worker's inability to speak English should lower their industrial disability award, "Unfortunately, this line of cases overlooked the fact that the employers who hired these workers should have reasonably anticipated that an injury which limits an ability to return to manual labor work would have far more devastating consequences upon non-English speaking workers than English speaking workers. Oftentimes, this agency has penalized non-English speaking workers despite the knowledge that the employers actually recruited such workers because they were willing to work for less wages. What has been troublesome to many, including myself, is that this agency has never similarly treated non-immigrant workers for failing to learn other skills. Defendants would certainly have trouble citing any agency or court precedent in the workers' compensation area where an industrial award for an English speaking worker was lowered because the injured worker, before the injury, failed to anticipate he would suffer a devastating work injury and failed to obtain a type of education before the injury that would mitigate the effects of such an injury."

The Merivick, Inc. case might not end up being binding precedent either because it is not chosen to be a published decision of the Iowa Court of Appeals, or because it might be reviewed and reversed by the Iowa Supreme Court.

However, at least for the time being the Merivick, Inc. case does support the argument that non-English speaking workers in Iowa will receive higher industrial disability awards if they suffer serious injuries that affect their ability to perform their regular jobs.