Opinion
No. 1-1025 / 01-0301.
Filed April 24, 2002.
Appeal from the Iowa District Court for Polk County, GEORGE W. BERGESON, Judge.
Employer and its insurance carrier appeal from a ruling on judicial review affirming the decision of the Workers' Compensation Commissioner awarding benefits to Roland Van Hoolandt. AFFIRMED.
Aaron T. Oliver and William D. Scherle of Hansen, McClintock Riley, Des Moines, for appellants.
Laura Pattermann of Gallner Patterman, P.C., Council Bluffs, for appellee.
Considered by SACKETT, C.J., and MAHAN and HECHT, JJ.
The Iowa Workers' Compensation Commissioner ruled that Roland Van Hoolandt sustained an injury in the course and scope of his employment with Continental Fire Sprinkler Company. The district court affirmed the agency decision. We affirm.
I. Background Facts and Proceedings . Van Hoolandt was a sprinkler system installer for Continental Fire Sprinkler (Continental). He claimed he injured his back on June 5, 1996 while unloading a machine from Continental's truck. There were no witnesses to the incident. Van Hoolandt filed a workers' compensation petition against Continental and its insurance carrier, Travelers Insurance Company (Travelers).
While being deposed by opposing counsel, Van Hoolandt testified he had not worked since the incident and that the pain and discomfort associated with the injury had prevented him from returning to work in any capacity. He further testified he routinely spent his days lying down and that the injury prevented him from doing any type of work. This testimony was false. In fact, Van Hoolandt had been working full-time as a sales representative with Midwest Industrial Tools for six months before the deposition. As a result of this false deposition testimony, the State filed criminal charges against Van Hoolandt. He later pled guilty to third-degree fraudulent practices and paid a $1,000 fine.
Following a hearing on the workers' compensation matter, Deputy Commissioner Teresa Hillary filed an arbitration decision acknowledging Van Hoolandt's criminal conviction, but holding he nonetheless sustained a compensable work injury on June 5, 1996. The deputy commissioner found Van Hoolandt was entitled to healing period benefits from June 7, 1996, through September 23, 1996, and again from October 29, 1997, through February 22, 1998. She also concluded Van Hoolandt was entitled to permanent partial disability benefits commencing February 23, 1998, for a period of 300 weeks at the rate of $488.38 per week. The agency affirmed the Arbitration Decision on intra-agency appeal. The district court affirmed the final agency action on judicial review. Continental and Travelers appeal.
II. Standard of Review . We review decisions of the worker's compensation commissioner under Iowa Code Chapter 17A. Our review is for correction of errors at law. Kostelac v. Feldman's, Inc., 497 N.W.2d 853, 856 (Iowa 1993). The agency's findings have the effect of a jury verdict. Id. We review the agency's decision to determine whether it is supported by substantial evidence in the record. Id. Evidence is substantial if a reasonable mind would accept it as adequate to reach a conclusion. John Deere Dubuque Works v. Weyant, 442 N.W.2d 101, 105 (Iowa 1989).
III. Credibility . Continental and Travelers first contend Van Hoolandt's total lack of credibility warrants a reversal of the award of benefits. They contend no credible evidence supports the award which is based solely upon the unreliable and uncorroborated testimony of Van Hoolandt.
We acknowledge Van Hoolandt's admitted perjury concerning his work status following his injury. However, assessment of the credibility of witnesses is a role peculiarly within the realm of the fact finder. See Kostelac, 497 N.W.2d at 858. We give deference to credibility determinations made by the agency. See Dunlavey v. Economy Fire Cas. Co., 526 N.W.2d 845, 853 (Iowa 1995). On judicial review, we are bound by all factual conclusions supported by substantial evidence in the record. Kostelac, 497 N.W.2d at 858.
Clearly Van Hoolandt lied about his employment subsequent to the claimed injury. However, we cannot say his testimony about all other aspects of this case was so incredible as to nullify it as a matter of law. Although the deputy commissioner was fully aware of Van Hoolandt's false testimony, she frequently characterized Van Hoolandt's testimony as "credible" regarding other matters in the Arbitration Decision. She obviously found his testimony as to the nature and circumstances of the injury, when considered with other corroborating evidence, credible enough to support his claim that the injury arose out of and in the course of his employment. The agency affirmed the deputy's findings. Although we certainly do not condone Van Hoolandt's dishonesty, our standard of review requires us to give appropriate deference to the agency's credibility determinations. We do not find Van Hoolandt's testimony so completely lacking in credibility that we should substitute our own credibility determination for that of the agency.
IV. Causation . Continental and Travelers assert Van Hoolandt did not prove by a preponderance of the evidence that his back condition was causally related to any work activities. The claimant has the burden of proving by a preponderance of the evidence the disability on which he now bases his claim is causally related to injuries arising out of and in the course of his employment. Lithcote Co. v. Ballenger, 471 N.W.2d 64, 66 (Iowa Ct. App. 1991). A possibility of causation is not sufficient; a probability is necessary. See Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 297 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. Lithcote Co., 471 N.W.2d at 66. However, the weight to be given the expert opinion is for the agency as fact finder. Expert opinion testimony, even if uncontroverted, may be accepted or rejected in whole or in part by the trier of fact. Id.
We conclude substantial evidence supports the agency's finding of a causal connection between the June 1996 incident and Van Hoolandt's back condition. Van Hoolandt testified that while lifting a machine out of the back of his work truck, he felt a "twinge or tweak" in his back. Jim Wischmann, a coworker, testified that although he did not witness the alleged injury, he remembered Van Hoolandt saying he had hurt his back on that day. Dr. Bernard Kratochvil opined that the lifting incident caused a back strain. Dr. Jeffrey Meyers, a chiropractor, testified that Van Hoolandt's symptoms were consistent with the incident alleged by the claimant; and that a disc problem like Van Hoolandt's could have been caused by a "single injury" such as the June 5 lifting incident. Dr. Randall Woodward, Van Hoolandt's long-time treating physician, reported Van Hoolandt was "doing well" until the June 1996 lifting incident and opined the incident caused "an aggravation of a pre-existing condition that resulted in significant symptoms requiring surgical stabilization" of the patient's spine.
We conclude the foregoing evidence constitutes substantial evidence supporting the agency's finding of a causal connection between Van Hoolandt's back condition and his work activities. We therefore affirm the agency's determination on this issue.
V. Industrial disability benefits . Finally, Continental and Travelers contend the sixty percent industrial disability award is not supported by substantial evidence in the record. Industrial disability measures an injured worker's lost earning capacity. Quaker Oats Co. v. Ciha, 552 N.W.2d 143, 157 (Iowa 1996). Factors that should be considered include the employee's functional disability, age, education, qualifications, experience, and ability to engage in employment for which he is fitted. Second Injury Fund of Iowa v. Shank, 516 N.W.2d 808, 813 (Iowa 1994). "Thus, the focus is not solely on what the worker can and cannot do; the focus is on the ability of the worker to be gainfully employed." Second Injury Fund of Iowa v. Nelson, 544 N.W.2d 258, 266 (Iowa 1995).
The agency considered a number of factors in arriving at its sixty percent industrial disability determination. At the time of the arbitration hearing, Van Hoolandt was forty-two years old. He had achieved a G.E.D. and had a work history primarily consisting of manual labor. Van Hoolandt had been unsuccessful in previous attempts at non-manual labor. A reasonable fact-finder could conclude from this record that Van Hoolandt's physical restrictions preclude him from doing overhead work, engaging in repetitive lifting of any kind, and working in some positions for which he is qualified, such as sprinkler fitting.
Based on a consideration of these factors, we find substantial evidence in the record supporting the commissioner's decision that Van Hoolandt has a sixty-percent industrial disability. Accordingly, we affirm on this issue.
AFFIRMED.