Opinion
No. 3-418 / 02-1747.
Filed July 23, 2003.
Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge.
An employer and employee both appeal a district court decision which revised a decision of the Workers' Compensation Commissioner. AFFIRMED.
Glenn Goodwin of Finley, Alt, Smith, Scharnberg, Craig, Hilmes Gaffney, P.C., Des Moines, for appellant.
Dennis Hanssen of Hopkins Huebner, P.C., Des Moines, for appellee.
Considered by Sackett, C.J., and Huitink and Vogel, JJ.
An employer and employee both appeal a district court decision which revised a decision of the Workers' Compensation Commissioner. The employer claims the district court erred by revising the commissioner's determination of healing period benefits. The employee claims: (1) she was entitled to penalty benefits; (2) surgery in 1998 was causally related to her injury in 1986; and (3) she was entitled to benefits under the odd-lot doctrine. We affirm.
I. Background Facts Proceedings
Eve Copeland Clark was previously employed by Mercy Hospital Medical Center as a medical transcriptionist. In November 1986 she picked up a box of paper and injured her back. Clark was diagnosed with acute lumbar disk syndrome. In June 1988 Dr. William Boulden performed a fusion of the L2-3 and L3-4. Clark had some improvement but continued to have pain while sitting. This continued until May 1995, when Dr. James Ogilvie performed a surgical fusion of the L5-S1. Clark's condition was greatly improved after the May 1995 surgery. She substantially recovered from surgery by November 1995.
Clark obtained part-time employment as a church music director. In February 1997 she was in a car accident, which caused her symptoms to worsen. A test revealed a tear of the disk at L4-5, which represented a change from tests performed in 1994. In October 1998 Clark had a surgical fusion of the L4-5. Clark's symptoms have improved, but she testified she was still unable to work full-time.
Clark filed a claim for workers' compensation benefits. The Workers' Compensation Commissioner determined Clark was entitled to healing period benefits only from November 26, 1986, to March 4, 1988; June 17, 1988, to February 21, 1989; and May 15, 1995, to November 15, 1995, and that she was not in a continuous healing period from November 1986 to November 1995. The commissioner found the surgery in May 1995 was causally related to her 1986 injury, but the 1998 surgery was not work-related. The commissioner determined the 1998 surgery was caused by the motor vehicle accident in 1997. The commissioner found Clark had failed to show she was entitled to benefits under the odd-lot doctrine. The commissioner also found the employer reasonably quit paying benefits in May 1994, and Clark was not entitled to penalty benefits.
On judicial review, the district court concluded the commissioner's findings on the issue of healing period benefits were not supported by substantial evidence. The court determined Clark was entitled to healing period benefits from the date of injury through November 15, 1995. The court affirmed the commissioner on all other issues. The employer appealed, and Clark cross-appealed.
II. Standard of Review
Our review under Iowa Code chapter 17A (2001) is for the correction of errors at law, not de novo. Wal-Mart Stores, Inc. v. Caselman, 657 N.W.2d 493, 498 (Iowa 2003). Our review is guided by Iowa Code section 17A.19(10). The district court, as well as this court, is bound by the commissioner's factual findings if they are supported by substantial evidence. IBP, Inc. v. Harpole, 621 N.W.2d 410, 414 (Iowa 2001). We consider all of the evidence in the record. Dawson v. Iowa Bd. of Med. Exam'rs, 654 N.W.2d 514, 518 (Iowa 2002). Evidence is not insubstantial merely because it would have supported contrary inferences. Wal-Mart Stores, 657 N.W.2d at 499.
The deputy workers' compensation commissioner's decision was entered on April 30, 2001, and the final agency action was entered on February 12, 2002, which was after the effective date of section 17A.19(10), July 1, 1999. Under Wal-Mart Stores, 657 N.W.2d at 498, we determine section 17A.19(10) applies.
III. Healing Period Benefits
The employer claims the district court erred in revising the commissioner's decision and to award healing period benefits during the entire period from November 1986 to November 1995. It asserts there was substantial evidence to support the commissioner's finding that there were multiple, or intermittent, healing periods.
A similar argument was addressed in Ellingson v. Fleetguard, Inc., 599 N.W.2d 440, 446-47 (Iowa 1999), where the supreme court stated:
Ellingson also contends that the commissioner erred by terminating all temporary disability payments at the time that she attained maximum medical improvement. She argues that a healing period may commence and end, only to have another healing period commence when there is a retrogression in a workers' disability. Section 85.34(1) provides that the employer shall pay the employee compensation for a healing period beginning on the date of the injury and continuing until the employee has returned to work or it is medically indicated that significant improvement from the injury is not anticipated or until the employee is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of the injury. This statute obviously recognizes different situations that will result in a termination of healing-period benefits.
Ellingson's argument concerning a recommencement of the healing period based on a retrogression in a worker's disability has application, if at all, to situations where healing-period benefits have been terminated based on the employee's return to work prior to attaining maximum improvement of the injury. In contrast, once it has been established through a decision of the commissioner or a reviewing court that further significant improvement is not anticipated, all temporary disability benefits from a single injury are finally terminated to be followed by any permanent partial disability payments that are established by the commissioner's order.
See also Pitzer v. Rowley Interstate, 507 N.W.2d 389, 391 (Iowa 1993) (noting that when a claimant had not returned to work and was not able to return to substantially similar employment, the healing period extended until significant improvement was not anticipated).
The evidence in the present case did not show Clark's healing-period benefits were terminated based on her return to work prior to attaining maximum improvement on her injury, because Clark had not returned to full-time employment even at the time of the hearing. Under the statute, Clark's healing period continued until significant improvement from her injury was not anticipated, which was November 15, 1995. We conclude the district court correctly determined the evidence does not support a finding of multiple healing periods in this case.
IV. Penalty Benefits
Clark contends she should have been awarded penalty benefits because the employer stopped paying her weekly benefits in May 1994. Under Iowa Code section 86.13 (1993), if an employer delays or terminates weekly benefits "without reasonable or probable cause or excuse," the employer may be responsible to pay penalty benefits of up to fifty percent of the benefits that were unreasonably delayed or denied.
The key to determining whether penalty benefits should be awarded is whether the employer's actions were reasonable. Wal-Mart Stores, 657 N.W.2d at 501-02. When an employee's claim for benefits is fairly debatable based on a good faith dispute over the employee's factual or legal entitlement to benefits, an award of penalty benefits is not appropriate under the statute. Gilbert v. USF Holland, Inc., 637 N.W.2d 194, 199 (Iowa 2001).
The commissioner found it was fairly debatable whether the May 1995 surgery was causally connected to Clark's work injury, and determined Clark was not entitled to penalty benefits. Physicians initially thought Clark's problems were at the L2-3 and L3-4 level, and it was not until Clark saw Dr. Ogilvie that he determined her pain was caused by problems at the L5-S1 level. Previous tests had not shown a problem at that level, and the employer disputed whether the problems were caused by the work injury. We determine the commissioner's findings are supported by substantial evidence, and affirm.
V. Causal Connection
Clark asserts her 1998 surgery was causally connected to her 1986 work-related injury. She disputes the commissioner's finding that the surgery was caused by the 1997 automobile accident. She states that because of her previous surgeries the L4-5 disc was more vulnerable and susceptible to injury.
A claimant must prove by a preponderance of the evidence that the injury is a proximate cause of the claimed disability. Grundmeyer v. Weyerhaeuser Co., 649 N.W.2d 744, 752 (Iowa 2002). Expert testimony is ordinarily necessary to establish a causal connection between the injury and the disability for which benefits are sought. Id. The weight to be given the expert's testimony is for the finder of fact. St. Luke's Hosp. v. Gray, 604 N.W.2d 646, 652 (Iowa 2000).
The commissioner found:
Claimant was involved in a nonwork-related motor vehicle accident in 1997 prior to the surgery 1998. Dr. Ogilvie's opinion was that the motor vehicle accident was what caused the need for the 1998 surgery. His opinion is corroborated by both Jacqueline Stoken, D.O., and Karin Ravitz, D.O. Claimant has not proved that there is a causal connection between the original injury in 1986 and the surgery performed in 1998.
(Citation omitted.)
The commissioner weighed the expert testimony in this case and determined there was no causal connection between the 1986 injury and the 1998 surgery. We determine the commissioner's decision is supported by the evidence.
VI. Odd-Lot Doctrine
Clark claims she was entitled to benefits under the odd-lot doctrine. The doctrine applies when a worker is incapable of obtaining employment in any well-known branch of the labor market. Guyton v. Irving Jensen Co., 373 N.W.2d 101, 105 (Iowa 1985). An odd-lot worker is considered totally disabled if the only services the worker can perform are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist. Id. Also to be considered are the claimant's physical impairment, intelligence, education, training, ability to be retrained, and age. Second Injury Fund v. Nelson, 544 N.W.2d 258, 268 (Iowa 1995). Once a worker establishes a prima facie case under the odd-lot doctrine, the burden shift to the employer to produce evidence of suitable employment. Weishaar v. Snap-On Tools Corp., 506 N.W.2d 786, 790 (Iowa Ct.App. 1993).
The commissioner found Clark had not made a prima facie showing that she was an odd-lot employee. The evidence showed Clark had two bachelor's degrees. She was qualified to teach in Iowa and also had experience performing music. Clark was capable of obtaining employment in a well-known branch of the labor market. Substantial evidence supports the commissioner's findings that Clark was not an odd-lot employee.
We affirm the decision of the district court on the appeal and the cross-appeal. Costs of this action are assessed one-half to each party.