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CELOTEX CORP. v. AUTEN12/20/1995
This workers' compensation case comes to us on further review. The Celotex Corporation appealed from an industrial commissioner's decision awarding 100% permanent total industrial disability benefits to its former employee, Douglas B. Auten. See Iowa Code § 85.34(3) (1987). On judicial review, the district court affirmed the industrial commissioner's award of benefits. The court of appeals affirmed, and we granted Celotex's application for further review.
Celotex presses two issues in its petition for further review. First, Celotex contends the industrial commissioner incorrectly concluded there is substantial evidence that Auten is 100% permanently and totally industrially disabled regarding an injury he sustained during the course of his employment. We conclude there is substantial evidence to support the commissioner's decision on this issue, and we give the issue no further consideration. Because the district court and the court of appeals reached the same conclusion, we affirm on this issue.
Our reason for granting further review was to revisit the second issue Celotex raised: whether it is appropriate to apportion a present industrial disability between a recent work-related injury and prior work-related injuries. We agree with the industrial commissioner, the district court, and the court of appeals that there should be no such apportionment. We therefore affirm on this issue as well.
Auten began employment with Celotex in May 1959. In 1977 he sustained an injury to his neck while unloading stucco blocks from boxcars. Because of this injury, Auten had surgery on his cervical spine in 1979. In approximately June 1980, the parties negotiated a settlement agreement in which Celotex agreed to pay Auten permanent partial disability benefits for a 25% body as a whole injury. The total amount of the settlement was $17,000.
In 1982 Auten tore his right bicep tendon while lifting a bucket of water. As a result he received permanent partial impairment ratings to his right arm. In 1984 Auten received a lump-sum payment of $10,000 in a special case settlement of the 1982 injuries and of a review-reopening claim for the 1977 injury.
Under his union contract, Auten "bumped into" the sole janitorial position at Celotex in 1980. It is undisputed that in May 1987, Auten was injured during the course of his employment as a janitor at Celotex. When he attempted to untangle water hoses hanging [541 NW2d Page 253]
from a wall hook, Auten experienced a tearing sensation in his right shoulder.
Celotex sent Auten to a local doctor, who referred him to Dr. Arlen Hanssen at the Mayo Clinic. Dr. Hanssen examined Auten on September 3 and performed an arthrogram (a photograph of a joint made with X-rays). The arthrogram revealed that Auten had sustained a torn rotator cuff to his right shoulder. Auten underwent acromioplasty (surgical repair of the acromial process) with rotator cuff repair and was off work recuperating until the spring of 1988.
On March 28 Dr. Robert Weatherwax examined Auten at Celotex's request. Dr. Weatherwax determined that Auten could return to work as early as April 4, but with several restrictions. Auten should engage in no activities requiring him to lift his right shoulder above horizontal. He could not do any pushing, pulling, or lifting with that shoulder of any weight greater than five pounds.
Auten returned to work on April 4. At the hearing before the deputy industrial commissioner, Auten stated he was unaware of the restrictions Dr. Weatherwax had imposed. Auten worked — apparently without incident — until November 21, when Celotex again sent him to Dr. Weatherwax. After this examina
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