Opinion
No. 4-520 / 03-2105
Filed January 13, 2005
Appeal from the Iowa District Court for Polk County, Carla T. Schemmel, Judge.
An employer appeals following a district court ruling on its petition for judicial review, which upheld an agency decision awarding an employee permanent partial disability benefits. AFFIRMED.
Timothy Wegman and Joseph Barron of Peddicord, Wharton, Spencer Hook, L.L.P., Des Moines, for appellant.
Donna Miller of Grefe Sidney, P.L.C., Des Moines, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
Delavan Corporation Colt, Ind. (Delavan) appeals following a district court ruling on its petition for judicial review, which upheld a decision of the workers' compensation commissioner. The agency concluded Delavan's employee, Ronald Barry, had sustained a thirty-percent industrial disability, and awarded Barry permanent partial disability benefits. For the reasons that follow, we affirm the district court.
I. Background Facts and Proceedings.
Ronald Barry, who had worked the past twenty years as a qualified production machinist, developed occupational asthma. Beginning in 1997 Barry attempted to obtain a position within Delavan that did not expose him to irritants which aggravated his asthma. He was not successful, and resigned in 1999.
In February 2000 a deputy workers' compensation commissioner determined Barry had sustained a work-related injury resulting in a five-percent industrial disability, and awarded Barry permanent partial disability benefits and medical expenses. Barry appealed to the commissioner, who affirmed the proposed decision. Barry filed a petition for judicial review claiming, in relevant part, that there was not substantial evidence to support an industrial disability award of only five percent. The district court remanded "the issue of industrial disability" to the agency for "rehearing," "to the extent expressed" in its discussion of Barry's substantial evidence claim:
In the present case Deputy Hillary relied upon [Barry's] medical condition . . ., his ability to bid on other positions with [Delavan], his current educational status and standing, and others not specifically discussed. . . . .
. . . [T]he record in this case does not contain sufficient evidence with respect to [Barry's] discernible earning capacity. . . . [T]he only evidence as to what [Barry] may be able to earn had to be measured on positions offered by [Delavan]. This may very well be an accommodation.
While determination of discernible earning capacity by using an accommodation offered by an employer may be appropriate, it cannot be done unless there is a showing that the accommodation offered would be available in the general labor market. In the present case the only dollar figure available to Deputy Hillary was $14.90 per hour for work as a receptionist with [Delavan]. It is not this court's place to comment as to whether this figure is appropriate for [Barry]. But without any information in the record as to whether this is an amount that a person with [Barry's] knowledge, skills, and present abilities can compete for in the competitive labor market still needs to be determined [sic].
(Citations omitted).
Upon remand the agency noted the court's ruling was not entirely clear, but concluded, "[I]t appears the remand was for the purpose of taking additional evidence regarding how much [Barry] could earn in jobs with employers other than [Delavan]." Delavan moved for reconsideration of the agency's order, asserting the district court's ruling only directed the agency to review the existing record as it pertained to the issues of accommodation and industrial disability. The agency denied Delavan's motion, and the deputy commissioner took further evidence, including evidence of Barry's work activities and educational advancements that had occurred subsequent to the initial arbitration hearing. In her remand decision the deputy reaffirmed the agency's earlier determination that Barry had suffered only a five percent industrial disability. Barry appealed, and the workers' compensation commissioner concluded Barry had in fact sustained a thirty-percent industrial disability.
Delavan then filed a second petition for judicial review, asserting the agency had misinterpreted the district court's remand ruling as allowing or directing an evidentiary hearing, that even if the remand ruling did allow further evidence the agency erroneously allowed evidence that was beyond the scope of the ruling, and that the thirty-percent industrial disability award was not supported by substantial evidence. The district court upheld the agency decision. Delavan appeals, reasserting the arguments it made before the district court.
II. Scope and Standard of Review.
Review of agency action is limited to correcting errors of law. Iowa R. App. P. 6.4; IBP, Inc. v. Harpole, 621 N.W.2d 410, 414 (Iowa 2001). In reviewing the district court's ruling, we apply the standards of Iowa Code chapter 17A (2001). Grundmeyer v. Weyerhaeuser Co., 649 N.W.2d 744, 748 (Iowa 2002). The party challenging agency action bears the burden of demonstrating the action's invalidity and resulting prejudice. Iowa Code § 17A.19(8)(a). This can be shown in a number of ways, including proof the action was ultra vires; legally erroneous; unsupported by substantial evidence in the record, when that record is viewed as a whole; or otherwise unreasonable, arbitrary, capricious, or an abuse of discretion. See id. § 17A.19(10).
III. Scope of the District Court's Initial Remand Ruling.
Delavan first asserts that the district court's initial remand ruling only directed the agency to reconsider the industrial disability issue based on the existing record. Upon reviewing the language of the initial remand ruling, particularly the references to the insufficiency of the evidence on the issue of Barry's earning capacity, we conclude the court did direct the agency to take additional evidence. While we believe this was error by the district court, neither party appealed from the initial remand ruling. As such that ruling, even though erroneous, became final and binding. See P.D.S.I. v. Peterson, 685 N.W.2d 627, 632 (Iowa 2004) ("When it exercises its judicial review power, the district court acts in an appellate capacity."); Feller v. Scott County Civil Service Comm'n, 482 N.W.2d 154, 158 (Iowa 1992) (noting final appellate decision becomes law of the case and, as to the issue decided, is controlling in further proceedings on remand and in any subsequent appeal).
In the second judicial review ruling, the district court concluded that Iowa Code section 17A.19(10) had authorized the court to order a remand for the taking of additional evidence. We cannot agree. In light of the structure and language of Iowa Code section 17A.19, and prevailing case law, a court's ability to order the agency to reopen the record and take additional evidence is governed, not by section 17A.19(10), but by section 17A.19(7). See Iowa Code § 17A.19(7), (10); Cripps v. Iowa Dep't of Transp., 613 N.W.2d 210, 213 (Iowa 2000); Murillo v. Blackhawk Foundry, 571 N.W.2d 16, 19 (Iowa 1997). Further, under the facts shown by the record in this case, section 17A.19(7) would not authorize a remand for the taking of additional evidence regarding Barry's earning capacity. While such evidence would have been material to the question of industrial disability, there was no claim or showing of any reasons, much less good reasons, why the evidence had not been presented in the original proceedings. See Iowa Code § 17A.19(7) (requiring both materiality and "good reasons for failure to present [the evidence] in the contested case proceeding before the agency").
Delavan next asserts that, even if the district court's initial remand ruling directed the agency to accept additional evidence, the agency erroneously allowed evidence that went beyond the scope of the ruling. Delavan's assertion on this point appears to be two-fold. Delevan contends (1) that the remand ruling was limited to the issue of whether the $14.90-per-hour receptionist position with Delavan was an accommodation, and thus the evidence on remand should have been limited to that narrow issue, and (2) that the agency should have admitted only evidence which was available at the time of the original workers' compensation proceeding.
In reviewing the district court's initial remand ruling, we cannot agree that it was limited to the narrow issue of accommodation. The district court found the matter "should be remanded for a rehearing" as "the record in this case does not contain sufficient evidence with respect to [Barry's] discernible earning capacity." The court explained this conclusion by noting that "the only evidence as to what [Barry] may be able to earn had to be measured on positions offered by [Delavan]," and raised a concern that this particular evidence might be evidence of an accommodation by Delavan. The court then concluded that, given the lack of "information in the record as to whether this [$14.90] figure is an amount that a person with [Barry's] knowledge, skills, and present abilities can compete for in the competitive labor market still needs to be determined [sic]." This language indicates, as the agency concluded, that the purpose of the remand order was the taking of additional evidence regarding Barry's ability to earn in the competitive marketplace. All of the evidence admitted by the agency was relevant to this issue.
However, there is some substantive merit to Delavan's second contention — that the agency erred in taking evidence relating to Barry's earning capacity, such as his work activities and educational advancements, where those activities and advancements occurred subsequent to the original hearing. The Iowa Code provision that authorizes remand for the taking of additional evidence contemplates evidence that was in existence at the time of the original contested case proceeding, but which for "good reason" was not presented in that proceeding. See Iowa Code § 17A.19(7). However, as asserted by Barry, Delevan has waived error on this issue.
Accord Iowa Admin. r. 876-4.28 ("The commissioner shall decide an appeal upon the record submitted to the deputy workers' compensation commissioner unless the commissioner is satisfied that there exists additional material evidence, newly discovered, which could not with reasonable diligence be discovered and produced at the hearing.").
After the agency determined that the remand hearing should include the taking of additional evidence, Barry filed a motion in limine seeking to exclude evidence relating to the reasons he left his employment with Delavan, and to limit the evidence at hearing to his "earning capacity since the time he left Delevan." In its resistance to the motion, Delavan stated that "evidence regarding [Barry's] reasons for leaving employment and subsequent employment searches and subsequent education and employment are relevant to the issues of industrial disability." (Emphasis added). During the remand hearing, Delavan offered and had admitted evidence of Barry's work and educational history which had occurred subsequent to the original arbitration hearing, and did not object when similar evidence was offered by Barry. Given the foregoing, Delavan not only acquiesced to, but participated in, any error by the agency. "[I]t is elementary a litigant cannot complain of error which he was invited or to which he has assented." Knudsen v. Merle Hay Plaza, Inc., 160 N.W.2d 279, 285 (Iowa 1968) (quoting Hackman v. Beckwith, 245 Iowa 791, 800, 64 N.W.2d 275, 281 (Iowa 1954)). We therefore turn to the final issue raised by Delavan, and consider whether the agency's award of a thirty-percent industrial disability was supported by substantial evidence.
Delavan asserts it has preserved error on this issue because, after the agency determined that it would take additional evidence on the issue of Barry's earning capacity, Delavan filed a motion to reconsider. Delavan contends that when its motion was denied by the agency, it had no choice but to submit evidence of Barry's subsequent work and educational history. However, neither the agency's orders, nor Delavan's motion, addressed the admissibility of evidence occurring subsequent to the original agency proceedings. As the agency had not ruled on the issue of admitting subsequently-occurring evidence, Delavan was free to, and to preserve error was required to, object to its admission.
IV. Industrial Disability.
This workers' compensation case is a contested case in which the agency is vested by Iowa Code chapter 85 with the responsibility of determining an employee's right to benefits. Mycogen Seeds v. Sands, 686 N.W.2d 457, 465 (Iowa 2004). The agency must necessarily make factual findings to determine that right. Id. Such determinations are therefore "clearly vested by a provision of law in the discretion of the agency." Iowa Code § 17A.19(10)(f). We are accordingly bound by the agency's findings of fact if they are "supported by substantial evidence in the record before the court when that record is viewed as a whole." Id.; P.D.S.I., 685 N.W.2d at 633. This requires that the entirety of the record — detracting as well as supporting relevant evidence — be sufficient to allow a neutral, detached, and reasonable person to make the same finding as the agency. See id. We willbroadly and liberally apply the agency's findings to uphold rather than to defeat its decision. IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 632 (Iowa 2000).
Because we have already rejected Delavan's assertions regarding the scope of evidence to be admitted during the remand hearing, we review the agency's decision in light of all the evidence presented before the agency. When we do so, we conclude the decision was supported by substantial evidence.
Upon remand the agency determined the $14.90-per-hour receptionist position with Delavan was an accommodation. This finding was supported by evidence that $14.90 per hour was significantly higher than both the wages paid to other receptionists at Delavan and the mean and median income for secretaries in Iowa, as well as the lack of evidence that Barry was qualified or experienced as a receptionist or secretary. The agency then looked to Barry's current wage of $10.90 per hour, and concluded it was a "reasonably reliable indicator of his current earning capacity because the job is one that he obtained in a competitive setting and it appears to be consistent with his skills and knowledge." This conclusion was supported by evidence that Barry had made an effort to obtain the education and skills that would enable him to work in a clean environment, that by doing so Barry had in fact increased his earning capacity beyond that which he had at the time he resigned from Delavan, and that despite diligent efforts to obtain employment in a setting that would not aggravate his asthma, Barry was unable to obtain a higher-paying position. The district court then concluded Barry had suffered a thirty percent industrial disability, which was consistent with the fact that Barry's current wage of $10.90 per hour was approximately thirty percent lower than the pay he had earned as a production machinist at Delavan.
V. Conclusion.
As the agency concluded, the purpose of the remand order was the taking of additional evidence regarding Barry's ability to earn in the competitive marketplace. When the totality of this evidence is considered, it provides substantial support for the agency's industrial disability award.