Opinion
No. 2-145 / 01-0845.
Filed May 31, 2002.
Appeal from the Iowa District Court for Polk County, Eliza Ovrom, Judge.
An employer appeals from an award of workers' compensation benefits to an employee, contending the commissioner's decision was unsupported by substantial evidence. AFFIRMED.
Timothy Wegman and Joseph Barron, of Peddicord, Wharton, Spencer Hook, Des Moines, for appellant.
Phillip Vonderhaar, Des Moines, for appellee.
Heard by Vogel, P.J., and Miller and Vaitheswaran, JJ.
An employer seeks further review of the workers' compensation commissioner's award of compensation benefits to a claimant. The employer contends the commissioner's causation and industrial disability determinations are not supported by substantial evidence. We affirm.
I. Background Facts and Proceedings and Standard of Review
American National Can Company is in the business of making plastic shrink bags for packing houses. Wilma Jean Bacon began working for the company in 1980. Her primary duties included supplying machine operators with the materials they needed to make the bags, relieving them when necessary, and taking finished product to the warehouse.
In 1989, Bacon slipped on some ball bearing rollers and sustained an injury to her neck. Dr. Jones, a neurosurgeon, performed fusion surgery. Bacon returned to work but was restricted to eight hours a day. After about two years, this restriction was removed.
In 1996, Bacon was again injured at work when a 400 to 500 pound overhead door fell on her from a height of about twenty feet. She complained of neck and right shoulder pain, as well as hip and ankle pain. After determining her ankle was fractured, a physician instructed Bacon to rest, use ice, elevate her leg, and take pain medication as needed. Bacon returned to work approximately six weeks after this second injury. She continued to work for almost two years.
In May 1998, Bacon took a leave from work to undergo elective breast surgery. While off work for that surgery, she awoke one morning with a severe pain in her neck, radiating into her arm. Her treating physician, Dr. Winston, determined she had a herniated disc and recommended surgery as soon as possible. Bacon underwent neck surgery, began a rehabilitation program, and was prescribed pain medication.
Bacon sought workers compensation benefits. The deputy commissioner awarded healing period and permanent partial disability benefits and the workers' compensation commissioner affirmed the award, as did the district court on judicial review.
American Can seeks further judicial review. The employer contends (1) Bacon's 1998 treatments were not causally related to the 1996 door episode and (2) Bacon did not suffer a sixty percent loss of earning capacity as a result of her injury. We review the agency's determinations to determine whether there is substantial evidence "in the record made before the agency when that record is viewed as a whole." Iowa Code section 17A.19(8)(f); IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 632 (Iowa 2000).
II. Causation
We find substantial evidence to support the commissioner's determination that the 1998 surgery and treatment were causally related to the 1996 door episode. Two of Bacon's treating physicians opined that there was a causal connection. Dr. Winston tied the 1998 treatments to both the 1989 and 1996 work injuries, stating, "I would believe, in view of her prior surgery and this significant accident of 1996, that the condition for which we treated her surgically in 1998 is causally related. . . ." Additionally, when asked if the door incident and ensuing injury "played a significant part in bringing about the need for" the 1998 surgery and Bacon's present condition, Dr. Winston answered "[y]es." Similarly, Dr. Jones opined:
In so far as the patient has continued to have neck pain ever since the door episode in 1996, I believe that the door incident injured her neck and caused further deterioration of her disc at C7-T1 such that it finally did herniate.
I do not think that she is able to return to work because of her weak right hand grip and that this represents a permanent radiculopathy. The patient continues to have the symptoms as described in the first paragraph of this report.
His opinion is supported by medical progress notes from a visit approximately a year after the door episode in which he stated Bacon suffered from a "chronic lumbar strain" and a "chronic cervical strain" and opined it was "medically reasonable to say that this is causally related to the injury at work on 6/27/96."
The deputy commissioner accepted these opinions over those of two physicians retained by American Can who refused to find a causal connection. He was free to do so, as long as he explained why. See Al-Gharib, 604 N.W.2d at 631 (commissioner, as the fact finder, determines the weight to be given to any expert testimony). The deputy commissioner provided such an explanation. He noted the views of the treating physicians were more credible, as they were not retained solely for purposes of litigation and they had more clinical involvement with Bacon.
American Can nevertheless suggests we should accord little weight to this credibility determination, given Dr. Winston's equivocal final causation opinion and a contrary initial causation opinion. However, the fact that Dr. Winston did not opine that the door incident was the sole cause of Bacon's 1998 surgery does not undermine his opinion because, as Bacon points out, the incident need only be a "significant factor" in bringing about the injury. See Varied Enterprises v. Sumner, 353 N.W.2d 407, 410 (Iowa 1984). Additionally, Dr. Winston explained the discrepancies in his initial and final opinions by noting he had only reviewed one set of records prior to rendering his first opinion. For these reasons, we believe the commissioner was free to adopt his opinion over those of the employer's physicians. Id. Dr. Winston's opinion, together with Dr. Jones's opinion and Bacon's testimony concerning her pain provided substantial evidentiary support for the commissioner's causation determination.
III. Earning Capacity
The commissioner determined Bacon sustained a sixty percent loss of earning capacity. American Can contends this determination is not supported by substantial evidence.
Loss of earning capacity is the measure for compensation of unscheduled injuries such as the ones at issue here. St. Luke's Hosp. v. Gray, 604 N.W.2d 646, 653 (Iowa 2000). It requires consideration of all factors bearing on a claimant's employability. Id. These factors include the claimant's age, qualifications, motivation, education and functional impairment. See Thilges v. Snap-On Tools Corp., 528 N.W.2d 614, 616 (Iowa 1995).
The deputy commissioner found:
Wilma has been financially devastated by this work injury and her inability to return to American Can. Wilma is essentially unable to return to light manufacturing work, the work that is best suited to her given her work history and lack of education. Wilma is 54 years of age. She has only a tenth grade formal education and no GED. Her only work experience outside of American Can has been as a custodian and mail clerk. Her job at American Can paid very well compared to unskilled, light work that she is only capable of performing today. Such work must be at or slightly above minimum wage.
These findings are supported by the agency record. Bacon earned more than eighteen dollars per hour when she last worked at American Can. Both Dr. Winston and Dr. Jones opined she could not return to her job there. Given these opinions, together with her relatively advanced age and limited educational and work history, we affirm the commissioner's determination of a sixty percent loss of earning capacity.
AFFIRMED.