Opinion
No. 2-1013 / 02-0891
Filed January 15, 2003
Appeal from the Iowa District Court for Jackson County, Nancy S. Tabor, Judge.
The employer appeals a district court decision reversing the ruling of the workers' compensation commissioner that denied the employee's review-reopening petition. REVERSED.
Mark Woollums and Jean Dickson Feeney of Betty, Neuman McMahon, L.L.P., Davenport, for appellant.
Thomas Currie of Tom Riley Law Firm, P.L.C., Cedar Rapids, for appellee.
Considered by Huitink, P.J., and Mahan and Vaitheswaran, JJ.
The employer appeals a district court decision reversing the ruling of the workers' compensation commissioner that denied the employee's review-reopening petition. The employer claims the district court applied an incorrect standard of review and the commissioner's decision was supported by substantial evidence. We reverse the decision of the district court.
I. Background Facts Proceedings
Victor Brundage was employed by Archer Daniels Midland, Inc. (ADM), in the maintenance division. In 1993 Brundage fell from a ladder and injured his back. He had problems walking and was given medical restrictions. In workers' compensation proceedings, he was determined to have a fifteen-percent industrial disability. He continued to work at ADM.
In 1998 Brundage filed a review-reopening petition, alleging there had been a material change in his condition. In a review-reopening proceeding, a claimant must show, by a preponderance of the evidence, that subsequent to the date of the award under review, he or she suffered an impairment or lessening of earning capacity proximately caused by the original injury. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 350 (Iowa 1980). This showing may be made without proof of change in physical condition. U.S. West Communications, Inc. v. Overholser, 566 N.W.2d 873, 875 (Iowa 1997). Other factors that may be considered are age, education, experience, and inability, because of injury, to engage in employment for which the employee is fitted. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980).
Brundage testified he had increased back pain and weakness in his right leg. Dr. Michael Brown recommended Brundage use crutches if he found it helpful. ADM did not permit Brundage to use crutches at work, and he retired in 1998. At the administrative hearing, ADM presented the testimony of Dr. Richard Neiman, Dr. R. A. Klassen, and Dr. Marc Soriano to the effect that Brundage's subjective symptoms exceeded his physical problems. Dr. Soriano, in an independent medical evaluation, concluded Brundage was demonstrating symptom magnification. The deputy workers' compensation commissioner reviewed the medical evidence and concluded:
Claimant's testimony at hearing focused on the change of symptoms he experienced with additional numbness, tingling, and pain in the right leg that was not present at the arbitration hearing in June 1996. However, a review of the medical tests and reports reveal no objective change that supports claimant's subjective complaints of increased symptoms. Multiple physicians noted that after claimant's refusal or inability to perform various tests in the examining room, that claimant was noted outside of the examining room moving about in such a manner that would not have been possible had his complaints been accurate or supported upon objective physical examination.
ADM also presented a videotape showing Brundage engaged in yard work without the use of crutches. Concerning the videotape, the deputy noted it showed:
claimant for over one hour using a spring rake to rake leaves, scooping up leaves while bending over, pushing a wheelbarrow, and operating a leaf blower/vacuum without an assisting walking device. Nor did it appear that claimant utilized the rake for support. . . . [T]he claimant is viewed pushing a wheelbarrow, raking, and squatting without the use of a supportive device. Claimant was then observed dumping the material by throwing lengthy pieces of lumber and numerous branches. While involved in this activity, claimant was shown bending over on a repeated basis. Claimant was then shown throwing chunks of concrete of varying in approximate size from a softball to a concrete block. Claimant was twisting and tossing the pieces into a trailer while in a stooped position. [This] activity occurred over the course of an hour and a half. Claimant . . . is observed . . . pulling the concrete pieces out of the trailer at a dumping site and tugging at the tarp while stooped over. Shortly after emptying the trailer, claimant is pictured first lifting the rear end of the trailer and then pushing down on the front of the trailer.
The deputy denied Brundage's request for review-reopening. The deputy's decision was adopted as the final agency decision by the chief deputy workers' compensation commissioner.
On judicial review, the district court stated:
Consideration of the evidence as a whole and in light of the additional factors used by the Courts to determine a lessening in earning capacity, the Court finds that Victor has shown by a preponderance of the evidence that there was a lessening in his earning capacity when he was required to take retirement benefits in order to maintain his insurance benefits.
The court reversed the commissioner and remanded for a determination of the decrease in Brundage's earning capacity. ADM appeals.
II. Standard of Review
An appeal of a district court's ruling on judicial review of an agency's decision is limited to determining whether the district court correctly applied the law in exercising its judicial review function under Iowa Code section 17A.19(8) (1997). Herrera v. IBP, Inc., 633 N.W.2d 284, 287 (Iowa 2001). The district court, as well as this court, is bound by the commissioner's factual findings if they are supported by substantial evidence in the record. IBP, Inc. v. Harpole, 621 N.W.2d 410, 414 (Iowa 2001).
The district court properly set forth this standard of review. ADM claims the court did not apply it, but instead engaged in its own analysis of the evidence by finding that Brundage had shown, by a preponderance of the evidence, a decrease in earning capacity. We agree that the district court did not properly apply the correct standard of review in this case. The court should not make its own review of the evidence, but should solely consider whether the commissioner's decision was supported by substantial evidence. See Simonson v. Snap-On Tools Corp., 588 N.W.2d 430, 435 (Iowa 1999) (noting question on appeal was whether there was substantial evidence to support the agency's conclusion regarding whether the employee had shown a change in earning capacity); E.N.T. Assocs. v. Collentine, 525 N.W.2d 827, 829 (Iowa 1994) (same).
III. Sufficiency of the Evidence
We turn then to the question of whether there was substantial evidence in the record to support the commissioner's decision. Evidence is substantial when a reasonable mind would accept it as adequate to reach the commissioner's conclusions. Murillo v. Blackhawk Foundry, 571 N.W.2d 16, 17 (Iowa 1997). Evidence may be substantial even if it would support contrary findings. Myers v. F.C.A. Servs., Inc., 592 N.W.2d 354, 356 (Iowa 1999). It is within the province of the commissioner to determine the credibility of the witnesses. E.N.T., 525 N.W.2d at 830.
We find there is substantial evidence in the record to support the commissioner's decision. The commissioner concluded Brundage's claims regarding a change in symptoms were not credible. The commissioner noted medical tests did not support Brundage's claims, and that outside the examining rooms Brundage's movements were not as restricted as the symptoms he presented to physicians. The court also noted that in the videotape Brundage appeared to be performing yard work without problem.
We reverse the decision of the district court and reinstate the decision of the workers' compensation commissioner.