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CELOTEX CORP. v. AUTEN12/20/1995
tion Dr. Weatherwax sent Celotex's claims management service a letter. In the letter Dr. Weatherwax recommended that Auten permanently refrain from mopping. In addition, Auten was to avoid pushing, pulling, and lifting of any amount greater than ten pounds. Auten was to permanently avoid overhead activity.
Celotex terminated Auten on June 2, 1989, after another employee with more seniority bid for — and bumped Auten out of — the janitorial position. The company's employee relations supervisor told Auten that there were no other positions available at the plant that complied with Weatherwax's restrictions. Celotex refused Auten's three attempts to bid for other positions at the plant because none of the jobs met these restrictions. Auten remains unemployed.
Auten filed a petition with the industrial commissioner, alleging that his May 1987 injury was work-related. Following a hearing, a deputy industrial commissioner awarded Auten 100% permanent total industrial disability benefits under Iowa Code section 85.34(3). The award order directed Celotex to pay Auten at the rate of $293.89 per week from September 7, 1987, for an indefinite period of time during Auten's period of disability.
Celotex appealed to the industrial commissioner, who affirmed the deputy's decision. The industrial commissioner concluded that if there is no change in Auten's condition, the benefits will continue for life.
As a preliminary matter, Auten contends Celotex failed to preserve error on the apportionment issue. In his resistance to Celotex's application for further review, Auten initially claims Celotex first raised the issue with the district court on judicial review. He later claims Celotex first raised the issue with us in the application for further review.
Our careful review of the record reveals that Celotex raised the issue with the deputy industrial commissioner and the industrial commissioner. Both considered and rejected the apportionment argument Celotex now urges upon us. Because the issue was preserved for our review, we move to a consideration of the merits.
Although the commissioner found that a considerable part of Auten's total disability is attributable to the two prior work-related injuries, he refused to apportion some part of the total disability to these injuries. In refusing to apportion, the commissioner relied on our rule that limits apportionment to
those situations where a prior injury or illness, unrelated to the employment, independently produces some ascertainable portion of the ultimate industrial disability which exists following the employment-related aggravation.
Varied Enters., Inc. v. Sumner, 353 N.W.2d 407, 411 (Iowa 1984); accord Bearce v. FMC Corp., 465 N.W.2d 531, 535 (Iowa 1991).
Celotex contends that this rule does not apply here because the extent of disability attributable to Auten's two prior work-related injuries is known. Auten, Celotex argues, was paid $27,000 for these injuries which [541 NW2d Page 254]
caused a substantial part of his permanent total industrial disability.
Like the court of appeals, we recognize that the earlier disability was established. This then presents the following narrow question: Because the two prior injuries were work-related, does that fact preclude apportionment? In Tussing v. George A. Hormel & Co., 461 N.W.2d 450 (Iowa 1990), we squarely addressed this issue. The employee's prior injury was work-related. In addition, there was no evidence that the prior injury was producing industrial disability. For these two reasons, we held that the apportionment rule did not apply. Id. at 453.
Celotex does
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