Tim Neal v. Annett Holdings, Inc.

               IN THE SUPREME COURT OF IOWA
                              No. 10–2117

                           Filed March 2, 2012


TIM NEAL,

      Appellant,

vs.

ANNETT HOLDINGS, INC.,

      Appellee.


      Appeal from the Iowa District Court for Polk County, Karen A.

Romano, Judge.



      Workers’ compensation claimant asserts the district court erred in

holding the employer offered “suitable work” under Iowa Code section

85.33(3) (2007). On cross-appeal, employer argues the commissioner’s

industrial disability determination is not supported by substantial

evidence. AFFIRMED IN PART AND REVERSED IN PART.


      Christopher D. Spaulding of Berg, Rouse, Spaulding & Schmidt,

P.L.C., Des Moines, for appellants.



      Charles A. Blades and Sasha L. Monthei of Scheldrup Blades

Schrock Smith Aranza, PC, Cedar Rapids, for appellee.
                                          2

APPEL, Justice.

       In     this   case,   we   must    determine    whether     the   Workers’

Compensation Commissioner (commissioner) erred in concluding that

light duty employment offered to an injured worker was not “suitable

work” under Iowa Code section 85.33(3) (2009) because the offered

employment was located 387 miles from the residence of the worker. We

also   must      address     whether     substantial   evidence    supports    the

commissioner’s finding that the employee suffered a sixty percent

industrial disability as a result of an on-the-job injury. The district court

reversed the commissioner’s ruling on the “suitable work” issue, but

affirmed the commissioner’s ruling on industrial disability.              For the

reasons expressed below, we reverse the district court on the “suitable

work” issue, but affirm the district court on the issue of industrial

disability.

       I. Factual and Procedural Background.

       TMC Transportation, a division of Annett Holdings, employed Tim

Neal as an over-the-road flatbed truck driver. In September 2007, Neal

was sent to Michigan to pick up a load of plywood.                A forklift driver

loaded Neal’s flatbed with the plywood in three stacks and left tarps on

top of the load. In an effort to secure the tarps, Neal climbed onto the

flatbed and, as he was lifting himself onto the first stack, injured his

shoulder.

       An MRI scan of Neal’s shoulder revealed a partial full thickness

tear of the rotator cuff, tendinopathy and thickening of the rotator cuff,

and hypertrophic change of the AC joint. Due to the injury, Neal’s doctor

imposed work restrictions including limitations on the amount of weight

Neal could lift. TMC offered Neal light-duty work in Des Moines, Iowa.
                                            3

       At the time, Neal resided with his wife and three children in

Grayville, Illinois. Grayville is 387 miles from Des Moines. TMC offered

to provide Neal a motel room while Neal worked in Des Moines. TMC also

stated it would provide Neal transportation costs to allow Neal to return

to Grayville every other weekend.               According to Neal, if he were to

participate in TMC’s light-duty program he could return home every

other week to see his family. Before the injury, Neal returned home every

weekend and occasionally during the week.

       Neal   declined     TMC’s    offer       to    perform    light-duty   work   in

Des Moines. As a result, TMC suspended Neal’s workers’ compensation

benefits.

       In February 2009, an arbitration hearing was held on Neal’s

workers’ compensation claim.          In the arbitration decision, the deputy

commissioner concluded Annett Holdings properly suspended temporary

disability benefits because Neal refused to accept “suitable work” as

defined in Iowa Code section 85.33(3).               The deputy commissioner also

concluded     Neal    experienced     a     fifteen    percent    permanent     partial

disability.

       Neal appealed the arbitration decision.                   Neal argued Annett

Holdings failed to offer “suitable work” because the work was located 387

miles from Neal’s residence. Neal also challenged the finding of a fifteen

percent permanent partial disability.

       On appeal, the commissioner 1 modified the arbitration decision.

Specifically, the commissioner concluded Annett Holdings failed to offer

“suitable work” because the job was located a great distance from Neal’s


       1The  appeal in this case was decided on behalf of the commissioner by a deputy
commissioner. For the purposes of this proceeding, the decision maker on appeal is
referred to as the commissioner.
                                     4

residence. The commissioner observed that Neal could return home only

every other weekend, whereas prior to the injury he could return home

every weekend.    The commissioner reasoned a worker should not be

required to uproot and move to a different location, observing that

“[b]eing away from the support of your wife and family, especially while

recovering from a serious work injury, is not an insignificant matter.”

The commissioner also found Neal suffered from a sixty percent

industrial disability. Annett Holdings filed a motion to reconsider, which

the commissioner denied. Annett Holdings petitioned for judicial review.

      The district court affirmed in part and reversed in part.          The

district court affirmed the commissioner’s finding that Neal suffered a

sixty percent industrial disability. The district court reversed, however,

on the issue of whether Annett Holdings offered suitable work.           The

district court stated Iowa Code section 85.33(3) “does not define ‘suitable

work’ in terms of its location; rather, ‘suitable work’ is that which is

‘consistent with the employee’s disability.’ ”    Because Annett Holdings

offered light-duty work consistent with Neal’s disability, the district court

concluded that Neal refused suitable work and thus, forfeited his right to

temporary partial, temporary total, and healing period benefits during his

period of refusal. Neal appealed, and Annett Holdings cross-appealed.

      II. Standard of Review.

      Judicial review of the decisions of the workers’ compensation

commissioner is governed by Iowa Code chapter 17A. Mycogen Seeds v.

Sands, 

686 N.W.2d 457, 463

 (Iowa 2004).          A district court acts in an

appellate capacity when it exercises its judicial review power. 

Id.

 When

reviewing a district court’s decision “we apply the standards of chapter

17A to determine whether the conclusions we reach are the same as
                                      5

those of the district court. If they are the same, we affirm; otherwise, we

reverse.” 

Id. at 464

 (citation omitted).

      In this case, we are asked to consider whether the commissioner

erred in concluding that Annett Holdings failed to offer suitable work for

purposes    of   Iowa    Code   section    85.33(3).   To   the    extent   the

commissioner’s decision reflects factual determinations that are “clearly

vested by a provision of law in the discretion of the agency,” we are

bound by the commissioner’s findings of fact if they are supported by

substantial evidence.     Schutjer v. Algona Manor Care Ctr., 

780 N.W.2d 549, 557

 (Iowa 2010) (citation and internal quotation marks omitted);

Meyer v. IBP, Inc., 

710 N.W.2d 213, 219

 (Iowa 2006).              Further, the

commissioner’s application of law to the facts as found by the

commissioner will not be reversed unless it is “irrational, illogical, or

wholly unjustifiable.”    Lakeside Casino v. Blue, 

743 N.W.2d 169, 173

(Iowa 2007) (citation and internal quotation marks omitted).

      The question of whether an employer offered suitable work is

ordinarily a fact issue. See Schutjer, 

780 N.W.2d at 557, 559

; McCormick

v. N. Star Foods, Inc., 

533 N.W.2d 196, 199

 (Iowa 1995). Whether the

commissioner considered an improper factor in reaching its factual

determination regarding suitability, however, is a question of law.         Cf.

Pac. Mills v. Dir. of Div. of Emp’t Sec., 

77 N.E.2d 413, 415

 (Mass. 1948).

      With respect to questions of law, we have stated that no deference

is given to the commissioner’s interpretation of law because the

“interpretation of the workers’ compensation statutes and related case

law has not been clearly vested by a provision of law in the discretion of

the agency.”      Schutjer, 

780 N.W.2d at 558

 (citation and internal

quotation marks omitted).       Shortly after Schutjer, this court decided

Renda v. Iowa Civil Rights Commission, 

784 N.W.2d 8

 (Iowa 2010), which
                                     6

clarified and refined our approach to determining whether an agency has

been delegated the authority to interpret a statute.

      In Renda, we explained that “each case requires a careful look at

the specific language the agency has interpreted as well as the specific

duties and authority given to the agency with respect to enforcing

particular statutes.” Renda, 

784 N.W.2d at 13

. We give deference to the

agency’s interpretation if the agency has been clearly vested with the

discretionary authority to interpret the specific provision in question. 

Id. at 11

.   If, however, the agency has not been clearly vested with the

discretionary authority to interpret the provision in question, we will

substitute our judgment for that of the agency if we conclude the agency

made an error of law.     

Id.

 at 14–15.    Deference may be given to an

agency’s interpretation in a specific matter or an interpretation embodied

in an agency rule. Sherwin-Williams Co. v. Iowa Dep’t of Revenue, 

789 N.W.2d 417

, 422–23 (Iowa 2010).       Indications that the legislature has

delegated interpretive authority include “rule-making authority, decision-

making or enforcement authority that requires the agency to interpret

the statutory language, and the agency’s expertise on the subject or on

the term to be interpreted.” 

Id. at 423

.

      We conclude the legislature did not vest the authority to interpret

the phrase “suitable work” for purposes of Iowa Code section 85.33(3) in

the workers’ compensation commission. First, the legislature has made

no explicit grant of interpretive authority to the commission. See Renda,

784 N.W.2d at 11

. Second, while we recognize Iowa Code section 86.8(1)

creates in the commissioner a duty to “[a]dopt and enforce rules

necessary to implement . . . chapters 85, 85A, 85B, [86,] and 87,” the

mere grant of rulemaking authority does not give an agency authority to

interpret all statutory language. Renda, 784 N.W.2d at 13–14. Third, as
                                     7

discussed below, the concept of “suitable work” is found in similar

contexts, including employment discrimination, wrongful termination,

unemployment compensation, and the odd-lot doctrine.          Therefore, we

are not convinced “suitable work” is a specialized phrase within the

expertise of the commissioner; rather, the phrase has a specialized legal

meaning extending beyond the context presented in this case. 

Id. at 14

.

Consequently, we accord no deference to the interpretation of the

commissioner and will substitute our own judgment if we conclude the

commissioner made an error of law. 

Id.

 at 14–15; Swiss Colony, Inc. v.

Deutmeyer, 

789 N.W.2d 129, 133

 (Iowa 2010).

      III. Discussion.

      A.   Suitable Work.     Iowa Code section 85.33(3) disqualifies an

employee from receiving temporary partial, temporary total, and healing

period benefits if the employer offers “suitable work” that the employee

refuses.   

Iowa Code § 85.33

(3); Schutjer, 

780 N.W.2d at 559

.         If the

employer fails to offer suitable work, the employee will not be disqualified

from receiving benefits regardless of the employee’s motive for refusing

the unsuitable work. See Schutjer, 

780 N.W.2d at 559

. We, therefore,

must consider whether Annett Holdings offered Neal suitable work for

purposes of Iowa Code section 85.33(3).

      When interpreting a statute, we will not look beyond the express

terms of the statute if the text of the statute is plain and its meaning

clear. State v. Tesch, 

704 N.W.2d 440, 451

 (Iowa 2005). When the words

of a statute are not defined by the legislature, we may refer to “prior

decisions of this court and others, similar statutes, dictionary definitions,

and common usage.” Gardin v. Long Beach Mortg. Co., 

661 N.W.2d 193, 197

 (Iowa 2003); Bernau v. Iowa Dep’t of Transp., 

580 N.W.2d 757, 761

(Iowa 1998). Iowa Code section 85.33(3) provides:
                                     8
             3. If an employee is temporarily, partially disabled and
      the employer for whom the employee was working at the time
      of injury offers to the employee suitable work consistent with
      the employee’s disability the employee shall accept the
      suitable work, and be compensated with temporary partial
      benefits. If the employee refuses to accept the suitable work
      with the same employer, the employee shall not be
      compensated with temporary partial, temporary total, or
      healing period benefits during the period of the refusal. If
      suitable work is not offered by the employer for whom the
      employee was working at the time of the injury and the
      employee who is temporarily partially disabled elects to
      perform work with a different employer, the employee shall
      be compensated with temporary partial benefits.

Iowa Code § 85.33

(3).    The district court looked no further than this

section because, in its view, “suitable work” is defined in the statute as

work that is “consistent with the employee’s disability.”

      We begin our analysis of the statute by considering whether the

phrase “consistent with the employer’s disability” provides a definition of

the phrase “suitable work” in the statute. We conclude that it does not.

The language of the statute requires that the work offered to an injured

worker must be both “suitable” and “consistent with the employee’s

disability” before the employee’s refusal to accept such work will

disqualify him from receiving temporary partial, temporary total, and

healing period benefits. See 

id.

 Otherwise, the modifier “suitable” would

have no meaning and would be mere surplusage.               In interpreting a

statute, “each term is to be given effect,” Miller v. Marshall Cnty., 

641 N.W.2d 742, 749

 (Iowa 2002), and we “will not read a statute so that any

provision will be rendered superfluous,” Thoms v. Iowa Pub. Employees’

Ret. Sys., 

715 N.W.2d 7, 15

 (Iowa 2006). See also State v. Osmundson,

546 N.W.2d 907, 910

 (Iowa 1996); 2A Norman J. Singer & J.D. Shambie

Singer, Statutes and Statutory Construction § 46:6, at 230 (7th ed. 2007)

(“It is an elementary rule of construction that effect must be given, if
                                      9

possible, to every word, clause and sentence of a statute.” (citation and

internal quotation marks omitted)).

      We thus conclude that the phrase “consistent with the employee’s

disability” modifies “suitable work.”       The phrase “suitable work,”

however, is not defined in the statute. We must breathe some life into

this phrase in order to resolve the question of whether the commissioner

erred in determining that the offer of light-duty employment in this case

was insufficient to cut off receipt of temporary workers’ compensation

benefits under the statute.

      We begin our effort to understand the meaning of the phrase

“suitable work” by looking at the workers’ compensation statutes in other

states. Some states expressly require a consideration of the location of

available work in determining an employee’s eligibility for workers’

compensation benefits.     See, e.g., Nev. Rev. Stat. Ann. 616C.475(8)(a)

(West, Westlaw through 2009 75th Reg. Sess. & 2010 26th Special

Sess.); 

Or. Rev. Stat. Ann. § 656.268

(4)(c)(A)–(B) (West, Westlaw through

2011 Reg. Sess.); see also La. Rev. Stat. Ann. § 23:1221(3)(c)(i) (West,

Westlaw through 2011 1st Extraordinary & Reg. Sess.); 

Mich. Comp. Laws Ann. § 418.301

(9)(a), (11) (West, Westlaw through P.A. 2012, No. 4,

of the 2012 Reg. Sess.).      Nevada, for instance, requires an offer of

temporary, light-duty employment to be “substantially similar to the

employee’s position at the time of his or her injury in relation to the

location of the employment.”          Nev. Rev. Stat. Ann. 616C.475(8).

Similarly, Oregon allows an employee to refuse an offer of modified

employment if the offer “[r]equires a commute that is beyond the physical

capacity of the worker” or is at a “work site more than [fifty] miles one

way from where the worker was injured.”            

Or. Rev. Stat. Ann. § 656.268

(4)(c)(A)–(B).   Further, Michigan precludes an employee from
                                     10

receiving wage-loss benefits if the employee receives and refuses a “bona

fide offer of reasonable employment.”           

Mich. Comp. Laws Ann. § 418.301

(9)(a). The statute states “reasonable employment” means work

that is “within a reasonable distance from [the] employee’s residence.”

Id.

 § 418.301(11).    Courts in these jurisdictions have little difficulty

construing their statutes to include geographic location as a factor to be

considered in determining whether an employee is eligible for certain

workers’ compensation benefits.       See, e.g., Jones-Jennings v. Hutzel

Hosp., 

565 N.W.2d 680, 686

 (Mich. Ct. App. 1997); Amazon.com v.

Magee, 

119 P.3d 732, 735

 (Nev. 2005); see also Caparotti v. Shreveport

Pirates Football Club, 

768 So. 2d 186, 191

 (La. Ct. App. 2000).

      A number of state workers’ compensation statutes, while not

expressly requiring a consideration of location, provide that refusal of

suitable employment does not disqualify a claimant if the refusal is

“justifiable” or “reasonable.” See, e.g., 

Ala. Code § 25-5-57

(a)(3)(e) (West,

Westlaw through 2011 Reg. Sess.); 

Ark. Code Ann. § 11-9-526

 (West,

Westlaw through 2011 Reg. Sess.); 

Fla. Stat. Ann. § 440.15

(6) (West,

Westlaw through Feb. 16, 2012 of the 2012 2nd Reg. Sess.); 

Ga. Code Ann. § 34-9-240

(a) (West, Westlaw through 2011 Reg. & Special Sess.);

Ind. Code Ann. § 22-3-3-11

(a) (West, Westlaw through 1st Reg. Sess.);

N.C. Gen. Stat. Ann. § 97-32

 (West, Westlaw through S.L. 2012-1 of the

2011 Reg. Sess.); N.D. Cent. Code Ann. 65-05-08(7) (West, Westlaw

through 2011 Reg. Sess. & Special Sess.); 

Tenn. Code Ann. § 50-6

-

207(3)(D) (West, Westlaw through 2011 1st Reg. Sess.); 

Va. Code Ann. § 65.2-510

(A) (West, Westlaw through 2011 Reg. Sess.). In Georgia, for

example, an employee who “refuses employment procured for him or her

and suitable to his or her capacity” is not entitled to benefits unless the

refusal was justified.    

Ga. Code Ann. § 34-9-240

(a).         The Georgia
                                         11

Supreme Court addressed what it meant for a refusal to be justified in

City of Adel v. Wise, 

401 S.E.2d 522

 (Ga. 1991). The court explained a

refusal to accept work is justified if the employee would be required to

relocate from his or her home. Wise, 

401 S.E.2d at 525

. Thus, the court

concluded, “factors such as geographic relocation or travel conditions

which would disrupt an employee’s life” are to be considered when

determining whether an employee justifiably refused work. Id.; see also

Counts v. Acco Babcock, Inc., No. 135, 

1988 WL 81394

, at *1 (Del. 1988)

(holding claimant, a resident of Delaware, was not required to relocate

and to accept offer of employment in Pennsylvania).

      In other jurisdictions, courts have held, in the absence of

legislative direction, that the distance of available work may be

considered   in   determining      the   employee’s   eligibility   for   workers’

compensation benefits. In Joyner v. District of Columbia Department of

Employment Services, 

502 A.2d 1027

 (D.C. 1986), the court interpreted a

statute providing the following:
             If the employee voluntarily limits his income or fails to
      accept employment commensurate with his abilities, then
      his wages after becoming disabled shall be deemed to be the
      amount he would earn if he did not voluntarily limit his
      income or did accept employment commensurate with his
      abilities.

Joyner, 

502 A.2d at 1029

 (quoting 

D.C. Code § 36-308

(c) (1981),

currently § 32-1508(3)(V)(iii) (West, Westlaw through Jan. 11, 2012)).

The Joyner court observed that the statute does not expressly address

“where ‘employment commensurate with [the claimant’s] abilities’ must

be located to be relevant to determining whether a claimant has

voluntarily limited her income or failed to accept such employment.”

Joyner, 

502 A.2d at 1030

 (quoting 

D.C. Code § 36-308

(c)). The Joyner

court, however, upheld an agency decision declaring that the District of
                                    12

Columbia served as the relevant labor market for determining whether

an employee disqualified himself or herself from benefits. 

Id.

 Although

Joyner is not a case involving temporary disability benefits, it does stand

for the broader proposition that geographic location may be considered in

determining whether the availability of employment cuts off statutory

workers’ compensation benefits. See also Shah v. Howard Johnson, 

535 S.E.2d 577, 583

 (N.C. Ct. App. 2000) (stating “it seems obvious that

suitable employment for a person would normally be located within a

reasonable commuting distance of that person’s home”).

      Pennsylvania has also allowed a consideration of the distance of

work in determining a claimant’s eligibility for workers’ compensation

benefits in the absence of legislative direction. In Kachinski v. W.C.A.B.,

532 A.2d 374

 (Pa. 1987), the Pennsylvania Supreme Court, in the

absence of a statute, required suitable work to be “actually availab[le]” in

order for a modification of benefits to be effected. Kachinski, 

532 A.2d at 379

, superseded by statute, 77 Pa. Cons. Stat. Ann. § 512 (1996), as

recognized in Bufford v. W.C.A.B., 

2 A.3d 548

, 553 n.3 (Pa. 2010). The

Pennsylvania    Commonwealth       Court   interpreted    this   availability

requirement in Goodwill Industries of Pittsburgh v. W.C.A.B., 

631 A.2d 794

 (Pa. Commw. Ct. 1993).

      In Goodwill, the court addressed whether a twenty-hour per week,

light-duty job located thirty miles from the claimant’s home was

unavailable to the claimant because it was located outside the claimant’s

geographic area.   Goodwill Indus. of Pittsburgh, 

631 A.2d at 795

.      The

Goodwill court held the job was unavailable because the claimant would

have been required to commute three hours by bus. 

Id. at 796

.           The

court explained that “cases involving relatively long commutes and

relatively short work days must be examined on their individual fact
                                      13

patterns as deemed appropriate for a reasonable person in the position of

the claimant.” Id.; see also Combs v. Kelly Logging, 

769 P.2d 572, 574

(Idaho 1989) (“It is well established, even without legislative statutory

direction, that a worker who sustains an industrial accident is not

required to move from his or her home to find suitable work in order to

be eligible for worker’s compensation.”); Dilkus v. W.C.A.B., 

671 A.2d 1135, 1139

 (Pa. 1996) (examining claimant’s residence or geographic

area in determining availability of a position); Yellow Freight Sys., Inc. v.

W.C.A.B., 

377 A.2d 1304, 1306

 (Pa. Commw. Ct. 1977) (same).

      In short, it is clear that geographic proximity is commonly

considered as a relevant factor in workers’ compensation statutes.

Moreover, Joyner, Kachinski, and Goodwill are substantial authority for

the proposition that geographic location is an appropriate consideration

in determining whether the availability of other employment is a basis for

termination of workers’ compensation benefits under state statutes that

are silent on the issue. The law is sufficiently developed in this regard

that a leading treatise on workers’ compensation issues states that “[t]he

suitability of a job . . . refers to the employee’s physical capacity or ability

to perform the job, or to factors such as geographic relocation or travel

conditions that would disrupt the employee’s life.”         2 Modern Workers

Compensation § 200.32 (Westlaw 2012).

      In addition to these statutes and cases involving workers’

compensation benefits, analogy may be drawn from other areas of

employment     law.     For   example,     with   respect   to   unemployment

compensation, Iowa Code section 96.5(3) states that an individual is

disqualified from receiving unemployment benefits “[i]f the department

finds that an individual has failed, without good cause, either to apply for

available, suitable work when directed by the department or to accept
                                      14

suitable work when offered that individual.”        

Iowa Code § 96.5

(3).

Section 96.5(3) goes on to provide:
            a. (1) In determining whether or not any work is
      suitable for an individual, the department shall consider the
      degree of risk involved to the individual’s health, safety, and
      morals, the individual’s physical fitness, prior training,
      length of unemployment, and prospects for securing local
      work in the individual’s customary occupation, the distance
      of the available work from the individual’s residence, and
      any other factor which the department finds bears a
      reasonable relation to the purposes of this paragraph.

Iowa Code § 96.5

(3)(a)(1); Iowa Admin. Code r. 871—24.24(15)(g) (“In

determining what constitutes suitable work, the department shall

consider, among other relevant factors . . . [d]istance from the available

work.”); see also Arthur M. Menard, Refusal of Suitable Work, 

55 Yale L.J. 134

, 147 (1945) (noting suitability in context of unemployment

compensation “is a relative matter in which the effect of the work upon

the claimant and his normal economic activity and activity in society

should be considered”). Professor Larson has noted the validity of the

analogy between unemployment and workers’ compensation benefits on

the issue of suitability, noting, “While there are not as many workers’

compensation cases [on the issue of suitability of employment], they

seem to resemble in general effect the more numerous unemployment

compensation cases on the same point.”        4 Arthur Larson & Lex K.

Larson, Larson’s Workers’ Compensation Law § 85.01, at 85-1 (2000).

      Further, in employment discrimination cases, an employer can

meet its burden of establishing the plaintiff failed to mitigate damages by

showing (1) the availability of suitable jobs that the employee could have

discovered and for which the employee was qualified, and (2) that the

employee failed to seek such a position with reasonable care and

diligence. Sias v. City Demonstration Agency, 

588 F.2d 692, 696

 (9th Cir.
                                    15

1978).   In Spagnuolo v. Whirlpool Corp., 

717 F.2d 114, 119

 (4th Cir.

1983), the Fourth Circuit observed: “The long-settled rule in the labor

area is that a wrongfully discharged employee need not accept, in

mitigation of damages, employment that is located an unreasonable

distance from his home.”      See also Frye v. Memphis State Univ., 

806 S.W.2d 170, 173

 (Tenn. 1991) (stating a wrongfully terminated employee

need not “abandon his home or place of residence to seek other

employment” to mitigate damages).

      The Restatement (Second) of Agency takes a similar approach. If

an employer discharges an agent in violation of the contract of

employment, the agent cannot recover for damages he could have

avoided by exercising due diligence.     Restatement (Second) of Agency

§ 455 cmt. d, at 373 (1958). The comments of section 455 explain that a

wrongfully discharged agent is not “necessarily obliged to accept

employment at a distance from his home.” Id. The Restatement provides

the following illustration:
            3. P employs A, who is married, for a period of a year
      as a traveling salesman to cover New England, with
      headquarters at Boston. At the end of one month, without
      cause, P dismisses A. A is offered a position with another
      responsible house for the same territory but with
      headquarters in New York. It is a question for the triers of
      fact to determine whether or not in view of all the
      circumstances, including the social interests of A and his
      wife, A’s damages are diminished by the amount which he
      would have received had he accepted the New York offer.

Id. § 455 illus. 3, at 373–74. As one can see, the Restatement allows the

trier of fact to consider the distance of employment from one’s home in

determining whether the agent suffered damages he could have avoided.

See id.; see also Hilgendorf v. Hague, 

293 N.W.2d 272

, 276–77 (Iowa

1980) (citing Restatement (Second) of Agency section 455 with approval).
                                     16

      We have applied the generally recognized geographic concept in

employment law in other workers’ compensation settings. For instance,

in Guyton v. Irving Jenson Co., 

373 N.W.2d 101, 105

 (Iowa 1985), we

recognized the “odd-lot doctrine.”    Under the doctrine, an employee is

considered to have suffered total disability if the worker can only perform

work “so limited in quality, dependability, or quantity that a reasonably

stable market for them does not exist.”        Guyton, 

373 N.W.2d at 105

(citation and internal quotation marks omitted).             In Guyton, we

explained:
      [W]hen a worker makes a prima facie case of total disability
      by producing substantial evidence that the worker is not
      employable in the competitive labor market, the burden to
      produce evidence of suitable employment shifts to the
      employer. If the employer fails to produce such evidence and
      the trier of fact finds the worker does fall in the odd-lot
      category, the worker is entitled to a finding of total disability.

Id. at 106

 (emphasis added). “Simply put,” we observed in Second Injury

Fund of Iowa v. Shank, 

516 N.W.2d 808, 815

 (Iowa 1994), “the question

is this: Are there jobs in the community that the employee can do for

which the employee can realistically compete?” For purposes of the odd-

lot doctrine, then, we have held that an employee need not look for a
position outside the employee’s “competitive labor market” to establish

he suffers a total disability. Id.; see also See v. Wash. Metro. Area Transit

Auth., 

36 F.3d 375, 381

 (4th Cir. 1994) (stating “it is by now well-

established that, in order to defeat a claim for benefits as a result of an

alleged permanent total disability, the burden is on the employer to prove

the existence of a suitable job presently available to the claimant in the

community in which he lives” (citation and internal quotation marks

omitted)); New Orleans (Gulfwide) Stevedores v. Turner, 

661 F.2d 1031, 1042

 (5th Cir. 1981) (holding “job availability” should consider whether
                                            17

there are “jobs reasonably available in the community for which the

claimant is able to compete”). In light of the decisions of other courts

addressing similar issues, analogous statutes, and prior decisions of this

court, we conclude the commissioner may consider distance of available

work from the claimant’s home in determining whether an employer has

offered “suitable work” for purposes of Iowa Code section 85.33(3).

       Given our holding on the legal issue of whether geographic

proximity is a factor to be considered, we now turn to the question of

whether       the    commissioner’s       factual   decision    that   the    proffered

employment was not suitable is supported by substantial evidence. 2 We

acknowledge that the evidence in the record could have led a reasonable

fact finder to come to a conclusion different than that reached by the

commission. The issue before us, however, is not whether the employer

had a substantial basis for asserting the offered job was, in fact,

“suitable.”         The   question   is    whether    the   determination       of   the

commissioner should be affirmed.




       2While   there is ample authority on the general issue that geographic proximity
should be a factor in evaluating the “suitability” of employment offered by employers,
there is little caselaw applying this general principle where an agency entitled to
substantial deference in fact finding determines that an offered job is not suitable with
a record similar to that developed in this case. While the dissent has found a lower
court opinion from Pennsylvania in the general subject area, Trout v. W.C.A.B., 

836 A.2d 178

 (Pa. Commw. Ct. 2003), this case is not on point. In Trout, the court found that the
final decision of the workers’ compensation authorities denying benefits could not be
affirmed as a matter of law. Trout, 836 A.2d at 183–85. Footnote twelve of the opinion
states that if the offer of employment is “within the geographic area where others in the
same community as Claimant would accept employment, the claimant’s preference is
irrelevant, and the job is available geographically.” 

Id.

 at 184 n.12. Various cases are
cited in support of the proposition that the final workers’ compensation decision
denying benefits was so far out of bounds that it could not be affirmed as a matter of
law. See 

id.

 Trout, which establishes under Pennsylvania law the outer boundaries of
agency discretion in denying a claim, cannot be turned upside down and used as
authority to establish the inner boundary of agency discretion where the agency sides
with the employee and affirms the claim.
                                        18

       We conclude that the commissioner committed no legal error and

that substantial evidence supports the commissioner on the issue. The

distance between the proffered work and Neal’s residence was 387 miles.

Although Neal was an over-the-road truck driver, which often required

him to spend extended periods of time away from home, Neal testified

that before the injury he ordinarily spent each weekend at home with his

wife and three children, and occasionally he returned home during the

week. Had Neal accepted the work in Des Moines, he would have only

been able to return home every other weekend—cutting his time at home

in half. As observed by the commissioner, “Being away from the support

of your wife and family, especially while recovering from a serious work

injury, is not an insignificant matter.” Further, there is no evidence in

the record establishing that Neal agreed as a condition of employment to

any relocation that Annett Holdings might require.           See Serwetnyk v.

USAir, Inc., 

671 N.Y.S.2d 537, 538

 (App. Div. 1998).               Based on the

evidence,    we    are     satisfied   substantial   evidence      supports   the

commissioner’s findings of fact. See Litzinger v. W.C.A.B., 

731 A.2d 258

,

262–63 (Pa. Commw. Ct. 1999) (holding as a matter of law that light-duty

work   offered    to     former   over-the-road   truck   driver    was   “totally

unreasonable” when work was located 116 miles away from claimant’s

residence even though the employer offered to provide a motel room).

       B.   Permanent Partial Disability Benefits.         In its cross-appeal,

Annett Holdings argues the district court erred in upholding the

commissioner’s finding that Neal suffered a sixty percent permanent

partial disability. The question is a mixed one of law and fact. Larson

Mfg. Co., Inc. v. Thorson, 

763 N.W.2d 842, 856

 (Iowa 2009). In reviewing

an agency’s finding of fact for substantial evidence, courts must engage

in a “fairly intensive review of the record to ensure that the fact finding is
                                     19

itself reasonable.” Wal-Mart Stores, Inc. v. Caselman, 

657 N.W.2d 493, 499

 (Iowa 2003). We do not, however, engage in a scrutinizing analysis,

“for, if we trench in the lightest degree upon the prerogatives of the

commission, one encroachment will breed another, until finally simplicity

will give way to complexity, and informality to technicality.”     Midwest

Ambulance Serv. v. Ruud, 

754 N.W.2d 860, 866

 (Iowa 2008) (citation and

internal quotation marks omitted).

      In our fairly intensive review, we view the record as a whole, which

includes a consideration of evidence supporting the challenged finding as

well as evidence detracting from it. Iowa Code § 17A.19(10)(f)(3); Dawson

v. Iowa Bd. of Med. Exam’rs, 

654 N.W.2d 514, 518

 (Iowa 2002). Evidence

is not insubstantial merely because a contrary inference is supported by

the record. Missman v. Iowa Dep’t of Transp., 

653 N.W.2d 363, 367

 (Iowa

2002).   Because the challenge to the agency’s industrial disability

determination challenges the agency’s application of law to facts, we will

not disrupt the agency’s decision unless it is “irrational, illogical, or

wholly unjustifiable.” Larson Mfg. Co., Inc., 

763 N.W.2d at 857

.

      An employee who suffers a “permanent disability” is entitled to

compensation. 

Iowa Code § 85.34

. The amount of compensation for an

unscheduled injury resulting in permanent partial disability is based on

the employee’s earning capacity. Broadlawns Med. Ctr. v. Sanders, 

792 N.W.2d 302, 306

 (Iowa 2010).      Earning capacity is determined by an

evaluation of several factors, including “functional disability . . . age,

education, qualifications, experience, and inability to engage in similar

employment.” Deutmeyer, 789 N.W.2d at 137–38 (citation and internal

quotation marks omitted). Personal characteristics of the employee that

affect employability may be considered.    Ehlinger v. State, 

237 N.W.2d 784, 792

 (Iowa 1976).        In determining industrial disability, the
                                      20

commissioner “is not required to fix disability with precise accuracy.”

Myers v. F.C.A. Servs., Inc., 

592 N.W.2d 354, 357

 (Iowa 1999); see Klein

v. Furnas Elec. Co., 

384 N.W.2d 370, 374

 (Iowa 1986) (observing in some

cases it is impossible to determine extent of industrial disability with

precise accuracy).

      The commissioner found Neal to have suffered a sixty percent

industrial disability. The commissioner explained:
             Claimant is 47 years old.         His age would make
      retraining difficult.    Although Neal has minor residual
      discomfort, his loss of lifting capacity and formal impairment
      ratings show that he has quite significant industrial loss. He
      is unable to return to flatbed truck driving, the type of work
      for which he is best suited given his work history. He cannot
      return to any driving duties that would require heavy or
      medium lifting.       His limitations prevent a return to
      construction, other than as a non-working supervisor.
      Considering all factors of industrial disability as set forth
      above, it is found that as a result of the injury sustained
      September 13, 2007, Tim Neal has experienced diminution of
      earning capacity of sixty percent (60%).

Substantial evidence supports these findings of fact.

      We have previously held the age of forty-seven is a factor that the

commissioner may consider in finding industrial disability.           See Trade

Prof’ls, Inc. v. Shriver, 

661 N.W.2d 119, 123

 (Iowa 2003) (noting
claimant’s   age   of   forty-seven   in   concluding   substantial    evidence

supported the commissioner’s findings); see also Second Injury Fund of

Iowa v. Nelson, 

544 N.W.2d 258, 266

 (Iowa 1995) (reasoning age of sixty

consistent with greater disability); Diederich v. Tri-City Ry., 

219 Iowa 587, 594

, 

258 N.W. 899, 902

 (1935) (stating it would be difficult for a fifty-

nine-year-old person to find employment in a new field).                   The

commissioner did not error in considering age to be a factor in this case.

      As pointed out by the commissioner, Neal has limited education.

The commissioner could properly consider his high school education and
                                     21

lack of specialized training as a factor that could lessen his earning

ability. Deutmeyer, 

789 N.W.2d at 138

 (reasoning that lack of post-high

school education was a factor supporting sixty percent industrial

disability).

       Neal’s absence from work during the healing period is a factor that

could affect employability.   A reasonable commissioner could conclude

that many months absence from the job could be looked at with

skepticism by potential employers.

       There is evidence in the record tending to show that Neal is less

competitive in the employment market because of his permanent

injuries. Neal drove a flatbed truck for a number of years prior to his

injury, but he can no longer drive a flatbed truck because he would be

required to perform lifting beyond his postinjury abilities. A Functional

Capacity Evaluation report, which concluded Neal’s “physical capabilities

and tolerances to function between the Light-Medium and Medium

Categories of work,” supports the commissioner’s finding in this regard.

Neal has medical restrictions on what he can lift. Neal also explained

that, although he worked in construction before the injury, his postinjury

physical limitations preclude him from engaging in any construction

except as a nonworking supervisor.

       There is, of course, countervailing evidence in the record.    For

example, evidence in the record tends to indicate that Neal may be able

to continue his career as a truck driver, albeit not as a flatbed truck

driver, within his physical restrictions.   Nevertheless, earning capacity

contemplates more than a determination of what the employee “can or

cannot do.” Shank, 

516 N.W.2d at 815

 (citation and internal quotation

marks omitted). The inquiry requires a consideration of the employee’s

actual employability, namely, the extent to which jobs are available for
                                       22

which Neal can realistically compete as a forty-seven year old, high-

school educated person with work experience generally limited to truck

driving, construction, and oil pumping when he suffers from a functional

impairment of the upper extremity that restricts his employability to

light-medium and medium categories of work.           See 

id.

   Also, factual

findings are not insubstantial merely because evidence supports a

different conclusion or because we may have reached a different

conclusion. See Arndt v. City of Le Claire, 

728 N.W.2d 389, 393

 (Iowa

2007); Missman, 

653 N.W.2d at 367

. Further, in considering findings of

industrial disability, we recognize that the commissioner is routinely

called upon to make such assessments and has a special expertise in the

area that is entitled to respect by a reviewing court. See Lithcote Co. v.

Ballenger, 

471 N.W.2d 64, 68

 (Iowa Ct. App. 1991).

      The question before us is whether the evidence supports the

findings the commissioner actually made. Terwilliger v. Snap-On Tools

Corp., 

529 N.W.2d 267, 271

 (Iowa 1995). We conclude that it does. We

also conclude the commissioner’s application of these facts to the law is

not irrational, illogical, or wholly unjustifiable.

      IV. Conclusion.

      For the reasons expressed above, we conclude the commissioner

did not err in finding Annett Holdings failed to offer Neal suitable work

for purposes of Iowa Code section 85.33(3).             We also hold the

commissioner’s findings of fact with respect to the extent of Neal’s

industrial disability are supported by substantial evidence and the

commissioner’s application of those facts in holding Neal suffered a sixty

percent industrial disability is not irrational, illogical, or wholly
                                    23

unjustifiable. We, therefore, reverse the judgment of the district court in

part and affirm in part.

      AFFIRMED IN PART AND REVERSED IN PART.

      All justices concur except Cady, C.J., Waterman and Mansfield,

JJ., who dissent.
                                   24
                                                #10–2117, Neal v. Annett
MANSFIELD, Justice (dissenting).

      I respectfully dissent.    In my view, the commissioner has

misapplied the law to invalidate a seemingly reasonable temporary

rehabilitation and light-duty work program. That program appears well-

designed to serve the needs of both an Iowa employer and its employees.

Additionally, I see no basis for the commissioner’s factual finding that a

truck driver who has lifting restrictions but can still obtain and perform

work as a truck driver has suffered a sixty percent loss of earning

capacity. For these reasons, I would reverse and remand.

      I. Background.

      Tim Neal, a forty-seven-year-old high school graduate who lives in

southeast Illinois close to the Indiana state line, was employed by the

TMC division of Annett Holdings as an over-the-road flatbed truck driver.

Although Neal’s driving duties took him far from home, he was able to

return home on weekends. On September 13, 2007, while climbing onto

a load of plywood lumber to secure a tarpaulin in southern Michigan,

Neal sustained an injury to his right shoulder. He was put on certain

medical restrictions and was then off work from September 14 until the

beginning of October 2007.

      During that time, Annett offered light-duty work that would meet

Neal’s medical restrictions at TMC’s headquarters in Des Moines, Iowa.

Annett owns a motel there and has a regular rehabilitation/light-duty

work program for its drivers. As described by the commissioner:

      Annett Holdings maintains a regular physical therapist for
      on-site therapy, and the motel features a fitness room,
      examination room, and swimming pool. Drivers performing
      light duty work are furnished transportation home every
      other weekend; travel time does not count as weekend time.
                                         25

       Thus,    under     Annett’s     program,      employees      are    provided

transportation home at the employer’s expense every other weekend,

with the travel time not counting against their weekend time. Employees

have the option of traveling home on the other weekends, but must do so

at their own expense.

       Neal initially agreed to go to Des Moines for the light-duty program.

He was going to be picked up over the weekend and driven to Des

Moines, but claims there was a “misunderstanding” because the driver

called his cell phone rather than his home phone and his cell phone has

a dead spot at home. Neal admits he never tried to contact his employer

when his ride did not show up. He also admits he refused an offer of

another ride to get to Des Moines. Instead, Neal went to his doctor and

obtained a full release so he could return to his former job of truck

driving. He performed those duties once again from early October 2007

until he had arthroscopic shoulder surgery in March 2008.

       Following surgery, Neal was again offered light-duty work in Des

Moines and again declined. Neal said that one of his assignments would

have involved checking TMC trucks for possible safety issues, and he

considered that being a “snitch.” Neal also said that he wouldn’t be able

to see his family as much and offered several other reasons for not

undertaking the light-duty job.        As summarized by the commissioner,

“Neal’s reasons for refusing light duty work in Des Moines in March 2008

are also multiple and unclear.” 3

       Neal had a second arthroscopic shoulder surgery in June 2008.

He remained off work after that. The commissioner subsequently found


       3Neal  admitted at one point he would prefer to be home at night with his new
family, including his wife (a full-time nurse) and their eighteen-month-old child. He
said that he didn’t “want to go on the road anymore.”
                                       26

that Neal attained maximum medical improvement in November 2008.

In January 2009, Neal was released by his own physician to return to

work with restrictions of no lifting over forty pounds from floor to waist,

no lifting over fifteen pounds from floor to overhead, and no repetitive

lifting of lesser weight with the right arm. Neal has a full range of motion

in that arm.       According to Neal’s own testimony, the surgery was

successful, he could perform all of his day-to-day functions with his right

arm, and he could do a full 360 degree windmill with his right arm. As of

the hearing in February 2009, Neal had not yet obtained new

employment, although he had just begun looking.

      In addition to truck driving, Neal has prior work experience in

construction and as an oil field pumper. Neal admitted that he could

return to oil field work or truck driving, just not flatbed truck driving. He

also admitted there are many truck driving positions out there that do

not involve flatbeds.

      The two issues in the case are whether the light-duty job that Neal

refused to perform during the healing period was “suitable work,” and

whether substantial evidence supports a finding that Neal now has a

sixty percent industrial disability.

      The deputy who heard the hearing testimony found that Neal had

been offered “suitable work” and that he had a fifteen percent industrial

disability. Neal timely appealed the arbitration decision. In his appeal

decision, the commissioner adopted the deputy’s factual findings for the

most part but modified his conclusions on these two key points. 4




      4The   commissioner delegated the authority to decide the appeal to another
deputy.
                                     27

      On the suitable work issue, the commissioner cited only one

reason why the offered light-duty work was not suitable—because Neal

would be home every other weekend rather than every weekend.

      Regarding Neal’s degree of disability, the commissioner added

several observations while increasing the disability percentage from

fifteen to sixty percent. On that score, the deputy had written:

      Although Neal has minor residual discomfort, his loss of
      lifting capacity and formal impairment ratings show that he
      has actual industrial loss. He could continue to drive over-
      the-road, but realistically wishes to avoid flatbed trucks with
      attendant tarping duties. Neal could well still function as a
      construction supervisor, but probably not as a construction
      carpenter. Considering all factors of industrial disability as
      set forth above, it is found that as a result of the injury
      sustained September 13, 2007, Tim Neal has experienced
      diminution of earning capacity on the order of 15 percent of
      the body as a whole, or the equivalent of 75 weeks of
      permanent partial disability.

The commissioner concluded as follows:

      Claimant is 47 years old. His age would make retraining
      difficult. Although Neal has minor residual discomfort, his
      loss of lifting capacity and formal impairment ratings show
      that he has quite significant industrial loss. He is unable to
      return to flatbed truck driving, the type of work for which he is
      best suited given his work history. He cannot return to any
      driving duties that would require heavy or medium lifting. His
      limitations prevent a return to construction, other than as a
      non-working supervisor. Considering all factors of industrial
      disability as set forth above, it is found that as a result of the
      injury sustained September 13, 2007, Tim Neal has
      experienced diminution of earning capacity of sixty percent
      (60%). This entitles claimant to 300 weeks of permanent
      partial disability benefits commencing on November 9, 2008.

(Emphasis added to show modifications of the deputy’s findings.)

      Nonetheless, the commissioner, like the deputy, did not question

Neal’s ability to work as a nonflatbed truck driver.       He reiterated the

deputy’s findings that Neal “thinks he can work as a truck driver, but not

flatbed trucks, due to the necessity to climb loads to secure tarpaulins.
                                     28

He has generally good use of the right arm, but has problems lifting

heavy items or lifting his arm above shoulder level.”

      Annett petitioned for judicial review of the commissioner’s award.

The district court reversed the commissioner on the “suitable work”

issue, but sustained his finding of sixty percent industrial disability.

      II. The “Suitable Work” Issue.

      This case initially presents the question whether an over-the-road

trucking company can offer a rehabilitation/light-duty work program

from a centralized location. Although this issue has not been litigated

before, it is important nonetheless. Iowa has many trucking companies

and truckers—they are a vital part of our economy and our workforce. At

the same time, the workforce of those companies may be scattered in

different locales.

      Unfortunately, the commissioner, the district court, and to some

extent my colleagues in the majority all take an unduly formalistic

approach to this issue. Without addressing the specific circumstances of

this case, the commissioner simply decided that an employee who is

rehabilitating from a workplace injury should not be expected to spend

any increased amount of time away from home, even on a temporary

basis. This approach makes it difficult to have a centralized program. It

also disregards the specific facts of this case, where the employee was an

over-the-road trucker whose work already took him overnight away from

home, except on weekends.

      On the other hand, the district court—in my view—went too far in

the opposite direction. The district court said that any work should be

deemed “suitable” if it is “consistent with the employee’s disability.” See

Iowa Code § 85.33

(3) (2009).     This is too narrow a construction of the

word “suitable.” The statute reads: “suitable work consistent with the
                                         29

employee’s disability.” By using this phrasing, I believe the legislature

has made it a necessary, but not sufficient, condition that the work be

consistent with the employee’s disability. If the two modifiers “suitable”

and “consistent with the employee’s disability” meant the same thing,

there would be no need to include both of them. See 

Iowa Code § 4.4

(2)

(setting forth a presumption that the entire statute is intended to be

effective).

       The foregoing reading of the law also makes sense.                Geography

should be relevant.       It would be unrealistic and unfair to expect an

employee to commute hundreds of miles a day, for example, to go to a

temporary light-duty work assignment.

       But the majority’s approach is also too formalistic. The majority

cites a raft of precedents. Yet all of them involve situations where the

employee would have to undergo a lengthy daily commute or move

permanently elsewhere. See, e.g., Litzinger v. W.C.A.B., 

731 A.2d 258

,

262–63 (Pa. Commw. Ct. 1999) (holding it was unreasonable to require a

former over-the-road truck driver to accept a $5.00 per hour permanent

light-duty work assignment that would either result in a daily commute

of 116 miles each way or require him to move permanently into an

employer-provided motel). Those cases are not on point. Neal was not

asked to do those things.            To the contrary, Annett’s program, as

described in the record, strikes me at first blush as a reasonable way to

accommodate the needs of a trucking company and an over-the-road

trucker during the temporary period where the trucker is recovering from

a workplace injury. 5

       5The majority relies on a number of unemployment insurance cases.         Those
cases involve situations where the employee was being required to take a new
permanent job in a different community. That is a very different circumstance from the
present.
                                      30

        I wholeheartedly agree with the majority that “geographic proximity

is a factor to be considered.” At the same time, it is not the same kind of

factor in every employment context.           By lumping together many

disparate cases, which involve everything from mitigation of damages to

permanent disability to unemployment compensation, my colleagues in

the majority oversimplify the inquiry.         Geography has a different

significance in different situations. I would hold that “suitable work” for

purposes of Iowa Code section 85.33(3) may require the employee to

travel temporarily so long as the work is offered in good faith to meet the

needs of the company and the travel is at the employer’s expense.

        Another Pennsylvania decision illustrates this more nuanced

approach. See Trout v. W.C.A.B., 

836 A.2d 178

 (Pa. Commw. Ct. 2003).

In Trout, the employee—a truck driver—sustained a knee injury in the

course of employment. 

Id. at 179

. The employer offered her light-duty

work.    

Id.

   For a while, she worked as a traveling field recruiter, was

provided a company vehicle, and was required to visit truck stops within

a 100 to 150-mile radius of her home. 

Id.

 This meant that the employee

on occasion had to stay away from home for several nights. Id. at n. 3.

This arrangement nonetheless was deemed by the court to be “suitable”

work.    Id. at 184 n. 12.     However, after a time, the employer told the

employee she would be required to work permanently out of an office 150

miles away.      Id. at 180.     This meant the employee would have to

commute 300 miles a day. Id. The court found the new light-duty job

did not constitute suitable and available work within the meaning of

Pennsylvania workers’ compensation law. Id. at 184–85.         I agree with

this approach and with the Pennsylvania court’s distinction between the

two assignments.
                                         31

       I would reverse and remand for the commissioner to apply the

foregoing standard.       Geography is relevant, but the mere fact that a

temporary light-duty job may require some more travel at the employer’s

expense is not sufficient grounds by itself for deeming it “unsuitable.”

Where an Iowa employer comes up with a seemingly logical plan to give

its injured employees useful tasks while helping them recover from their

injuries, that plan should not be dismissed out of hand simply because it

will take the employee temporarily away from home at the employer’s

expense.

       III. The Sixty Percent Disability Issue.

       The other issue is the percentage of disability.                The majority

kneads and rolls the facts of the case trying to mold some support for the

commissioner’s sixty percent total disability determination. 6              I believe

there is none. The essential undisputed facts are: (1) Neal can no longer

work at his most recent position as a flatbed truck driver; but (2) he can

work as an ordinary truck driver, and there are many such jobs

available. The majority refers to “countervailing evidence” but this is not

a situation where the evidence is in conflict.              Rather, what Neal is

capable of doing and what he is not capable of doing are essentially
undisputed. On this record, I cannot accept that Neal is sixty percent

disabled.

       The determination of industrial disability “rests on a comparison of

what the injured worker could earn before the injury as compared to

what the same person could earn after the injury.” Second Injury Fund of

       6One  example of this is the majority’s observation that “Neal’s absence from
work during the healing period is a factor that could affect employability.” The
commissioner did not cite this consideration in his ruling. In fact, Neal acknowledged
in his hearing testimony that many truck driving positions were available. Moreover, as
we have noted earlier, Neal was offered temporary light-duty work during the healing
period and declined to accept it.
                                    32

Iowa v. Nelson, 

544 N.W.2d 258, 266

 (Iowa 1995).            While I could

certainly affirm the deputy’s finding of fifteen percent disability had the

commissioner adopted it, there is no substantial evidence to support the

conclusion that Neal has suffered a sixty percent loss in earning capacity

because of his shoulder injury and reduced lifting capacity. See Swiss

Colony, Inc. v. Deutmeyer, 

789 N.W.2d 129

, 137–38 (Iowa 2010) (noting

that industrial disability is intended to measure an injured worker’s lost

earning capacity and finding substantial evidence to support a finding of

sixty percent disability when a worker had lost his foot and lower leg in

an industrial accident).

      As we have said:

             Nothing in the statute supports giving the hearing
      officer’s proposed decision elevated status when, as in the
      present case, the officer and the agency disagree. The
      statute gives the agency an unfettered right to find the facts
      in the first instance. It makes the hearing officer an adjunct
      of the agency rather than an independent decisionmaker.

            This does not mean a disagreement on the facts
      between the officer and the agency may not affect the
      substantiality of the evidence supporting the agency
      decision. When the agency decision is attacked on the
      substantial evidence ground in section 17A.19(8)(f) [now
      17A.19(10)(f)], the district court must examine the entire
      record.    This includes the hearing officer’s decision.
      § 17A.12(6)(e) and (f) [now 17A.12(5)(e) and (f)].

Iowa State Fairgrounds Sec. v. Iowa Civil Rights Comm’n, 

322 N.W.2d 293

, 294–95 (Iowa 1982).

      I would reverse both the district court and the commissioner on

the percentage of disability and would remand for further findings by the

commissioner on this subject.

      Cady, C.J., and Waterman, J., join this dissent.