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Cargill12/20/2000
Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge.
Injured worker appeals from district court decision reversing industrial commissioner's award of permanent partial disability benefits. REVERSED AND REMANDED.
Considered en banc.
The appellant, Kevin Conley, suffered a back injury arising out of and in the course of his employment by the appellee, Cargill, Inc. He filed this workers' compensation action and was awarded permanent partial disability benefits based on a twenty-percent industrial disability. On judicial review in the district court, the award was reversed because the court determined that the commissioner had considered an improper factor in making her award, namely, the employer's discriminatory refusal to allow the employee to bid into other jobs upon his return to work.
On appeal, the employee challenges this decision on two bases: (1) the alleged error upon which the district court based its reversal was not raised before the commissioner and, therefore, error was not preserved; and (2) the commissioner's consideration of Cargill's refusal to place Conley in certain positions was not improper. Cargill argues that the district court decision was correct and that, in any event, there was insufficient evidence to support the commissioner's finding of a twenty-percent industrial disability.
We find that error was not preserved on the question of whether the commissioner considered an improper factor in evaluating Conley's industrial disability. We also reject Cargill's contention that the commissioner's decision is not supported by substantial evidence. Accordingly, we reverse the decision of the district court and remand for entry of an order affirming the agency decision.
I. Background Facts and Proceedings.
From 1990 through the time of hearing, Conley was employed by Cargill at its corn milling facility. He had worked in several different positions, but they all required repetitive lifting, bending and stooping in varying degrees. During this period, Conley sustained three back injuries that the parties agree were work related. The first time that Conley injured his back he received conservative treatment and was eventually able to return to his regular job without modification. After the second injury it was thought that he had a probable disc herniation, but he was again treated conservatively and released to return to work. Initially, Cargill was reluctant to return Conley to his normal position due to the risk of reinjury. But after Conley filed a grievance, he was allowed to return to his previous job as a starch loader.
Within a few months of his return to his former position, Conley reinjured his back. This time the doctors confirmed a large herniated disc and performed back surgery. Conley returned to work three weeks later, but to a position other than the one he occupied at the time of his most recent injury . Cargill disqualified him from bidding into certain jobs at the plant based on medical restrictions, even though Conley contended that he was fully capable of performing the requirements of those positions.
Conley filed this workers' compensation action seeking benefits for all three back injuries. He also filed a lawsuit in federal court under the Americans with Disabilities Act, claiming that Cargill had engaged in discriminatory practices by the "demotion and selective promotion of Mr. Conley, a qualified individual with a disability, who is able to perform the essential functions of his position with or without reasonable accommodation because of his disability retaliation for filing workers' compensation and/or grievance claims." The
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