Opinion
No. 5-640 / 04-1645
Filed November 23, 2005
Appeal from the Iowa District Court for Des Moines County, William L. Dowell, Judge.
Larry Holland appeals the district court's ruling affirming the workers' compensation commissioner's decision denying him workers' compensation benefits. REVERSED AND REMANDED WITH DIRECTIONS.
Nicholas Pothitakis, Burlington, for appellant.
Jean Feeney of Betty, Neuman, McMahon, L.L.P., Davenport, for appellee.
Heard by Mahan, P.J., Hecht, J., and Schechtman, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
Larry Holland appeals the district court's ruling affirming the workers' compensation commissioner's decision denying him workers' compensation benefits. Holland argues the agency both lacked substantial evidence and abused its discretion when it found (1) he was not injured at work; (2) he had back pain prior to his work-related injury; (3) his testimony was not credible; and (4) he was not permanently and totally disabled by his work-related injury. Further, Holland argues that the district court erred when it failed to remand his case for a rehearing.
I. Background Facts and Proceedings
Larry Holland started working at Sheaffer Pen Corporation on April 15, 1968. He worked thirty-three years without filing a claim. Holland was moving filing cabinets from one floor to another on July 30, 2001, as part of his job as a maintenance helper. During one trip, the elevator Holland was using failed to stop plumb with the floor. The resulting gap between the building floor and the elevator floor was three to six inches. According to Holland, he tried to push or pull the two-handled cart containing the file cabinet onto the building floor. Holland argues he "felt a little strain or soreness in my hip — in my back part of my hip." Holland notified his supervisor that he needed help getting the cart off the elevator, then went on break. When he returned, the cart was off the elevator.
On August 1, 2001, Holland spoke to the nurse at Sheaffer about obtaining medical leave. Her notes from that day read:
Called in for leave papers — states he started having a lower back ache Tues. A.M. Has had this problem before. Might have been from moving files Mon., but not blaming that. Saw his Dr. this morning — will take 3 day medical leave.
Holland sought treatment from Dr. Robert Pogue on August 1, 2001. Dr. Pogue's note from that visit reads: "This gentleman developed low back pain since Monday [July 30, 2001]. He does do some lifting at work doesn't know if this caused it, but certainly aggravated the pain this wk." Holland saw Dr. Pogue again on August 8, 2001. Dr. Pogue's dictated note from that visit reads: "This [patient] is a frequent visitor and has persistent low back pain." Dr. Pogue referred Holland to Dr. Michael Hendricks.
On August 10, 2001, Holland went to the emergency room for his back pain. An x-ray taken at that time indicated only minimal degenerative change. No acute changes were noted.
On September 13, Holland saw Dr. Hendricks. Dr. Hendricks noted that Holland was moving a heavy file cabinet at work on July 30, 2001. Holland continued to see Dr. Hendricks for back pain. In a letter to Holland's attorney on February 20, 2003, Hendricks concluded that Holland had sustained a work-related injury. His opinion was based on Holland's claim that he had not experienced back pain prior to moving the file cabinet. Otherwise, he noted that most of the changes in Holland's back were "indicative of a long-standing degenerative process." Only one change was found to be acute. Hendricks assigned Holland a five-percent impairment to the body and recommended a five to ten pound lifting restriction. He suggested that a work-hardening program might increase Holland to a medium duty level of work.
At Holland's workers' compensation hearing, other Sheaffer employees testified that Holland frequently complained of hip pain prior to July 30, 2001. None had heard Holland complain of back pain until August 9, 2001.
Sheaffer's nurse testified that she had never heard Holland complain of back pain prior to August 1, 2001. When asked about the conversation she had with Holland and the note she took on August 1, she testified:
A. He said that his hip was hurting, his right hip. And I said, Is this something you have done here? And he said, Well, I don't think so. I might have done it moving filing cabinets but I don't know, I've had this trouble in the past. And he said, Usually like a hot bath will take care of it. I said, Okay, so I gave him leave papers at that time.
. . . .
Q. And can you read what the entry says? A. "On August 1st called in for leave papers. Stated he started having a lower back pain Tuesday a.m., has had that problem before, might have been from moving filing files Monday but not blaming that. Saw his doctor this morning, will take a three-day medical leave."
Q. And in that note, it talks about his back hurting, his lower back? A. That's what he said but he stood there and held his right hip.
Q. Okay. A. So —
Q. So do you recall whether he told you whether it was his lower back or his hip? A. If he said lower back, I probably put that down. I try and put down what they tell me.
Q. Okay. A. But I don't remember. I do remember that he rubbed his hip.
Q. Okay. And that's how you recall it may be? A. He might have said his hip but I put lower back.
Q. You would try to put down what he told you? A. Right.
Q. So in all likelihood he told you lower back? A. He might have, I don't know, I would say probably.
Q. There is no mention of his hip bothering him in that note? A. No, isn't.
Q. What are these notes kept for? A. For such things as this.
Q. So you try to be as accurate as possible? A. Right.
Q. So when someone tells you something, you try to put down as accurately as possible what they tell you? A. Yes, Sir.
One of Holland's co-workers testified Holland's knee or hip frequently gave out while they were working together. When asked about whether she'd heard Holland complain of back pain, she testified:
A. Off and on and when I would ask him if the job was too much for him or something, he would tell me no, if his knee would always give out or his hip would give out and that was causing his back problems. It was something that always happened to him.
Q. And tell me more about what he said about his hip or knee giving out on him. A. They'd always give out on him. Didn't matter what we was doing, he had a problem.
. . . .
Q. And what was bothering him? A. His knee or his hip or, you know, it was always — He never said anything about back. It was usually it's an old hip problem or knee problem.
Q. Did he ever complain of having back problems? A. Nope.
Q. So during the time you worked with him and performed the maintenance work, the days he was here, he never complained of having back problems? A. No.
Q. And he never complained that he couldn't do a job because his back hurt? A. No. Because I'd even make a point to ask him a lot of times, Do we need help? Are you sure you can do this, and he'd tell me Yes.
Q. He'd tell you — A. Yes, he could do it without help or it wasn't too heavy for him.
Q. He was able to do everything he was asked to do in the maintenance department before he left? A. Uh-huh [yes].
. . . .
Q. And at no time do you recall him complaining of not being able to do a certain aspect of a job or being able to do something because of back pain? A. No.
Q. From your observations of him, did, during that year, did he ever appear to have back pain or back problems? A. Nope.
. . . .
Q. Did he ever indicate to you that he shouldn't lift something because he thought it might hurt his back? A. No.
Q. From your observations and discussions with Mr. Holland, did you get the impression that he was not limited because of any back pain or discomfort or weakness? A. If he was, he never said anything to me.
Q. And you didn't observe him having problems in that sense? A. Nope.
The maintenance manager at Sheaffer also testified that he had never heard Holland complain of back problems. He testified:
A. He's always had complaints, either his back or his legs or — Larry is a complainer, yeah.
Q. Did he complain to you of back problems? A. No.
Q. In the past? A. No.
The deputy commissioner found Holland's testimony to be highly incredible. She wrote specifically,
Claimant's testimony and overall demeanor also suggest that claimant lacks emotional maturity and as a result is likely to reconstruct events in a manner that better serves his perceived self interests than more objective reviews of events would suggest. For this reason claimant's testimony is suspect.
She also discounted medical opinions because they relied on what she considered to be an unreliable medical history Holland provided. According to the deputy, Holland's symptoms of back pain were no different than the symptoms he described to his co-workers as hip pain. She found Dr. Pogue's note that Holland was a "frequent visitor" indicated he had been seen for similar pain before. She concluded that he had not sustained an injury at work. On appeal, the commissioner adopted the deputy's decision. He deleted the sentences describing Holland's emotional maturity for lack of evidence. Holland filed a petition to introduce additional evidence. He argued that his past medical records showed he never complained of back pain prior to August 1, 2001. The commissioner denied the petition. The district court affirmed the commissioner's final decision. Holland appeals.
II. Standard of Review
We review the district court decision by applying Iowa Code section 17A.19 (2003) to the agency action to determine whether our conclusions are the same as those reached by the district court. Univ. of Iowa Hosp. and Clinics v. Waters, 674 N.W.2d 92, 95 (Iowa 2004). We may affirm, remand, reverse, modify, or grant other appropriate relief if the agency action is in violation of any of the fourteen grounds listed in section 17A.19(10). Holland specifically claims the commissioner's decision is not supported by substantial evidence and is an abuse of discretion. See Iowa Code § 17A.19( f) and ( n); Waters, 674 N.W.2d at 95.
We are bound by the agency's findings if they are "supported by substantial evidence when the record is viewed as a whole." Simonson v. Snap-On Tools Corp., 588 N.W.2d 430, 434 (Iowa 1999). Evidence is substantial if a reasonable person would find it adequate to reach a conclusion. Id. Substantial evidence need not amount to a preponderance, but must be more than a scintilla. Elliot v. Iowa Dep't of Transp., 377 N.W.2d 250, 256 (Iowa Ct.App. 1985). Further, we are to give deference to the fact-finding of the agency as we would a jury verdict. IBP, Inc. v. Harpole, 621 N.W.2d 410, 414 (Iowa 2001). This deference includes the agency's credibility determinations. Clark v. Iowa Dep't of Revenue Fin., 644 N.W.2d 310, 315 (Iowa 2002). Our review of the record should be fairly intensive. Wal-Mart Stores, Inc. v. Caselman, 657 N.W.2d 493, 499 (Iowa 2003). We must consider all of the evidence; even that which detracts from the agency's findings is not insubstantial merely because it supports a contrary conclusion. Id. However, if there is enough evidence to support the findings, we must affirm the agency's decision even if we might have found otherwise. Harpole, 621 N.W.2d at 420.
An abuse of discretion occurs when the agency's exercise of discretion is based on untenable grounds or is clearly erroneous. IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 630 (Iowa 2000). Such abuse is "synonymous with unreasonableness," and is "clearly against reason and evidence." Dico, Inc. v. Iowa Employment Appeal Bd., 573 N.W.2d 352, 355 (Iowa 1998) ( quoting Stephenson v. Furnas Elec. Co., 522 N.W.2d 828, 831 (Iowa 1994)). "Arbitrary" or "capricious" means the agency acted without regard to the law or facts. Bernau v. Iowa Dep't of Transp., 580 N.W.2d 757, 764 (Iowa 1998). We therefore concentrate on whether the agency's decision is both rational and based in law and fact. Dico, 576 N.W.2d at 355.
III. Merits
It is required by statute, and we normally think it prudent, that we give great deference to the credibility determinations of the workers' compensation deputy commissioner. In this case, the deputy's unsupported credibility determinations tainted her, and ultimately the commissioner's, entire decision. The deputy's opinion that Holland's demeanor suggested he had a strongly held belief that his injuries occurred at work is a properly made observation. We would have even accepted her belief that Holland lacked emotional maturity as the manifestation of her consternation over what she claims was irksome testimony from Holland. What we cannot reconcile, however, is her comment that as a result of his immaturity, Holland "is likely to reconstruct events in a manner that better serves his perceived self interests than more objective reviews of events would suggest." No psychologist testified at the hearing. None of the medical reports entered into evidence contain psychological descriptions of Holland's condition. We are unaware of any evidence in the record that justifies the deputy's armchair diagnosis. We will give deference to credibility determinations, but we will not entertain amateur psychiatry.
What bothers us even more is that the deputy allowed her diagnosis of Holland to bias the rest of her opinion. She concluded that transporting file cabinets on a two-handled cart could not be characterized as "heavy lifting." Because Holland never "actually lifted" the cabinets (weighing in at 75 to 250 pounds) she determined no injury could have occurred. She also concluded, absent medical reports and contrary to other witnesses testimony, that Holland's back pain was the same as his hip pain. She discounted medical opinions stating the cause of Holland's injury was the result of his lifting on July 30, 2001 because the opinions relied on medical histories related by Holland.
In order to come to these conclusions, the deputy relied on a portion of the nurse's note from August 1 indicating that Holland had "had this problem before," a portion of Dr. Pogue's note from August 8 describing Holland as a "frequent visitor," and a portion of his co-worker's testimony that "his knees would give out or his hip would give out and that was causing his back problems." In squeezing these droplets of evidence from the record, she missed the portion of the nurse's note that indicated Holland said his pain "might have been from moving files Mon." She also missed his co-worker stating no less than nine times in three pages of transcript she had never heard Holland complain of back pain prior to August 1. Essentially, once the deputy commissioner decided Holland lacked emotional maturity, his case was over. We therefore conclude that the deputy's characterization of Holland, credibility determinations, and treatment of the evidence were unreasonable, arbitrary, capricious, and an abuse of discretion under section 17A.19(10)(n).
We are aware that the supreme court has recently said that final agency decisions are not reviewed under an "arbitrary, capricious, or an abuse of discretion" standard. See Keystone Nursing Care Ctr. v. Craddock, ___ N.W.2d ___, ___ n. 2 (Iowa 2005) (noting the court has previously held that an arbitrary, capricious, or an abuse of discretion standard does not apply to a final decision in a contested case); Finch v. Schneider Specialized Carriers, Inc., 700 N.W.2d 328, 331-33 (Iowa 2005) (interpreting § 17A.19(10)(h) and noting that "the commissioner's decision in this case is not reviewed for an abuse of discretion"); Terwilliger v. Snap-On Tools Corp., 529 N.W.2d 267, 273 (Iowa 1995) ("Section 17A.19(8)(g) [1993] is not the correct standard for review of an agency decision in a contested case"). Thus, we think it necessary to explain our application of § 17A.19(10)(n) here. It is within the discretion of the commissioner to accept or reject testimony and other types of evidence based on its credibility or reliability. Terwilliger, 529 N.W.2d at 273. We review such matters that are within the discretion of the agency for an abuse of discretion. Waters, 674 N.W.2d at 96. When we review the agency's fact determinations, we must employ a substantial-evidence standard. Id. See Iowa Code § 17A.19(10)(f). Therefore, we review this case pursuant to the legislature's mandate in § 17A.19: issues within the agency's discretion may be reviewed for unreasonableness, arbitrariness, capriciousness, and abuse of discretion, while fact determinations are reviewed for substantial evidence. Waters, 674 N.W.2d at 96. See Iowa Code § 17A.19(10).
From his co-workers' testimony, it also seems that Holland had quite a few aches and pains throughout his years at Scheaffer. However, if we disregard Holland's testimony and the opinions of his doctors as the commissioner would have us do, we are left with (1) an ambiguous doctor's note, (2) contradictory evidence and testimony from the company nurse, and (3) three co-workers who do not remember Holland complaining of back pain prior to July 30, 2001. We cannot conclude that this evidence supports the finding the deputy commissioner actually made. See Murillo v. Blackhawk Foundry, 571 N.W.2d 16, 17 (Iowa 1997). Nor can we find sufficient evidence to reverse the case in favor of Holland. There is simply not substantial evidence for a reasonable person to come to a conclusion about Holland's back pain. See Iowa Code § 17A.19(10)(f).
If our only problem was insufficiency of evidence, we could issue a limited remand pursuant to section 17A.19(7). See Des Moines Indep. Cmty. Sch. Dist. v. Dep't of Job Serv., 376 N.W.2d 605, 610-11 (Iowa 1985). If we ordered such a remand, we would have to determine that (1) the evidence missing was material and (2) there was a good reason the parties failed to enter it in the first place. See Humbolt Cmty. Sch. v. Fleming, 603 N.W.2d 759, 765 (Iowa 1999). Because the case might go back to the same deputy commissioner, however, such a remedy would be insufficient. Therefore, under 17A.19(10), we reverse the district court's ruling and remand the case to the workers' compensation commission to be heard anew. See City of Hampton v. Iowa Civil Rights Comm'n, 554 N.W.2d 532, 533 (Iowa 1996) (describing a general remand to an agency). In doing so, we strongly suggest that the commissioner assign a new deputy commissioner to the case. We also strongly suggest the the agency admit any further evidence necessary to make a reasoned determination as to when Holland's back pain began.