The Iowa Workers’ Compensation Commissioner filed an appeal decision on December 19, 2019 in the case of Nguyen v. Des Moines Public Schools and EMC Risk Services. I think the case is a good example of the situation where there are a lot of complicated and conflicting factors that the Work Comp Commissioner has to take into account in assessing the extent of damages.
In this case the claimant was a 34 year old woman who was born in Vietnam. She graduated from high school and attended one year of college in Vietnam. When the claimant was 18 she married her husband moved with him to the United States. The claimant became a U.S. Citizen in 2008.
The claimant has never taken any formal language classes, but speaks English well. The claimant explained that she has more difficulty reading and writing the English language.
The claimant has had four different jobs since she has come to the United States. She began as a machine operator producing plastic parts. She left that job for a better paying job at Mercy Medical Center in Des Moines. She started in housekeeping and eventually transferred to become a transporter at the hospital. Both these positions required a lot of physical effort.
She left Mercy Medical Center for a better paying job with the Des Moines Public Schools in 2008. The claimant started at the Des Moines Public Schools as a custodian. She eventually became a chief custodian. The promotion to chief custodian required her to pass a written test to obtain a certificate to operate and maintain the school’s hot water boiler. The claimant had to take the test three times before she passed.
The claimant injured her low back on November 19, 2015 while lifting a box of paper weighing approximately 50 pounds. The claimant ended up undergoing two low back surgeries that did not help her condition. She then had a spinal cord stimulator implanted into her back that helps her condition moderately, but is not a cure.
Three different doctors all agreed that the claimant’s low back injury constituted a 15% impairment of the whole person.
However, there was a great deal of disagreement over what were the appropriate restrictions. One doctor testified that she could lift up to 50 pounds on an occasional basis.
A second doctor recommended a 10-pound weight restriction and that claimant would need 15-20 minutes of rest if she walked or sat for 30 minutes continuously.
The third doctor recommended that she not lift more than 10 pounds occasionally, and that she cannot frequently bend or twist, that she be allowed sit, stand or walk as tolerated; but she could not sit or stand more than 30 minutes continuously and cannot walk more than 45 minutes continuously.
The Deputy Workers’ Compensation Commissioner and Commissioner Cortese were both troubled by the claimant’s resistance to increasing her activity level, and using a wheelchair although all of her doctors told her that was a bad idea and that she should try to be as active as possible.
The Des Moines Public Schools terminated the claimant from her job. The termination was a helpful factor for the claimant in showing her reduced capabilities. However, the claimant did not actively seek employment after her injury, and did not appear to be highly motivated to seek employment.
Deputy Commissioner William Grell wrote the original arbitration decision that was affirmed by Commissioner Cortese. Deputy Grell wrote a very nice summary of the conflicting factors that he weighed in coming to his decision:
“Ms. Nguyen required two low back surgeries, numerous injections, requires ongoing medication for her symptoms, and has had a spinal cord stimulator surgically implanted into her spine. Her limitations are relatively significant, though she could probably increase her own functional abilities by following physicians’ advice to increase her level of activity. Ms. Nguyen has a significant permanent impairment. Her ability to retrain is limited.
Claimant’s ability to read and write in English is limited. Her spoken English is good, but not sufficient to permit her to operate in many office or customer service settings. Yet, she is a young worker. She has not demonstrated significant motivation to return to work, having only applied at one employer for full-time work. She conceded at hearing that she believes she could perform a job as a cashier at Hy-Vee, obviously a job that is common to and prevalent in the competitive labor market.
Having considered claimant’s age, educational background, employment history, the situs of her injury, the severity of her injury, the length of her healing period, her permanent impairment, lack of motivation to return to work, as well as all other factors of industrial disability enumerated by the Iowa Supreme Court, I find that Mr. Nguyen has not proven she is permanently and totally disabled. However, I find that Ms. Nguyen has proven a significant loss of earning capacity. Specifically, I find that claimant has proven she sustained 70 percent loss of future earning capacity as a result of the November 19, 2015 work injury.”
I have found throughout my career that injured workers who try to get back to work receive higher awards than workers who do not make a significant effort to get back to work.