Opinion
No. 5-955 / 05-0245
Filed January 19, 2006
Appeal from the Iowa District Court for Cerro Gordo County, Jon Stuart Scoles, Judge.
Petitioner-appellant, Darlene Duclos, appeals the district court's order affirming the Workers' Compensation Commissioner's decision denying her permanency benefits. AFFIRMED.
Steven M. Nadel of Ahlers Cooney, P.C., Des Monies, for appellee.
Peter J. Thill of Betty, Neuman McMahon, P.L.C., Davenport, for appellee.
Mindi M. Vervaecke of Fitzsimmons Vervaecke Law Firm, P.L.C., Mason City, for appellant.
Considered by Sackett, C.J., and Vogel and Eisenhauer, JJ.
Petitioner-appellant, Darlene Duclos, appeals the district court's affirmance of the Iowa Workers' Compensation Commissioner's decision denying her permanency benefits as a result of an August 17, 2000 injury that occurred while Duclos was employed by respondent-appellee Opportunity Village, which at the time was insured by respondent-appellee Virginia Surety Company, Inc. Duclos contends the district court erred in affirming the commissioner because (1) the district court applied the wrong burden of proof, (2) the commissioner failed to provide sufficient reasons for rejecting certain evidence and did not provide a detailed path to his decision, and (3) there was not substantial evidence to support the agency's findings. We affirm.
Duclos sustained a back injury on August 17, 2000 while working for Opportunity Village as a personal assistant for physically and mentally handicapped residents of Opportunity Village. A deputy found the injury was only a temporary aggravation and Duclos was not entitled to permanency benefits as a result of this injury. Earlier, on September 13, 1999, Duclos sustained a herniated L4-5 disk, also while working for Opportunity Village, who at that time was insured by respondent-appellee Philadelphia Insurance. She subsequently underwent a laminectomy and discectomy to her L4-5 disk by Dr. David W. Beck, who told her she could return to her regular work on December 1, 1999, which she did. She continued to work without losing any time as a result of problems with her back until January 3, 2001, over four months after the date of the August injury. She did tell her employer she wanted medical treatment for her back on November 13, 2000, and an appointment was scheduled with Duclos's prior surgeon, Dr. Beck, on November 20, 2000. Beck testified there were not objective verifiable findings in that examination and Duclos was released on a come-back-if-she-needs-to basis. This meant there was not a specific reason to have her come back for follow-up.
On January 3, 2001 Duclos returned to Beck. He noted medically significant changes from the November examination. He was concerned she may have again ruptured the disk that had been corrected earlier, and this was something he would not have suspected in November of 2000.
An MRI revealed a recurrent disk extrusion at L4-5, the same level as the problem corrected in 1999. Surgery was performed to correct the problem on January 23, 2001.
Duclos subsequently filed two petitions in arbitration seeking workers' compensation benefits. She sought benefits from Opportunity Village and Philadelphia Insurance Company based on the September 13, 1999 injury. She sought benefits from Opportunity Village and Virginia Surety Company as a result of an alleged August 17, 2000 injury. The matters were consolidated and a hearing was held before a deputy. Claimant and others testified, and medical evidence came from Dr. Beck by deposition, and Dr. Pollack and Dr. Kenneth McMain by way of reports.
This was the employer's insurer at the time of the first incident.
This was the employer's insurer at the time of the second incident.
Dr. Beck testified:
Well, it's possible that she [Duclos] could have injured her disk in August. There is often a time lapse between the actual herniation and the injury to the disk itself. And it could very well be that the pain she was feeling the couple months before the actual herniation was related to that lifting incident in August.
He also testified while it was possible she injured the disk on August 17, 2000, it was also possible it was simply a muscle strain. He also said it was probable she injured the disk on August 17, 2000 although that is something different from herniating the disk, but it was more likely than not that she did something more than just pull a muscle.
The opinion of Dr. Kenneth L. Pollack of Des Moines Orthopedic Surgeons, P.C., was based on a review of Duclos's records. He wrote, "within a reasonable degree of medical certainty, that the herniated disk which required surgery in January of 2001 occurred some time between November 20, 2000 and January 3, 2001."
Dr. McMain, Medical Director of Allen Occupational Health Services, wrote "that there was no connection between the August low back strain and the presentation of an L5 nerve irritation on January 3, 2001." It was his opinion
that she had a new event between November 20, 2000 and January 3, 2001 because of the sudden appearance of a radiculopathy involving the left L5 nerve root that was not present prior to January 3, 2001. That this was an abrupt onset problem that was not present in August or November 2000.
The deputy found that as a result of the September 13, 1999 injury, Opportunity Village and Philadelphia Insurance were required to pay Duclos about six weeks in disability benefits, penalty benefits, interest, and the cost of the action. While Philadelphia Insurance has remained in the proceedings its participation appears to end here.
While Philadelphia Insurance appeared in district court and has filed a brief here, the issues raised in the district court did not involve any issues with reference to the September 1999 accident, nor are any issues raised in this appeal that deal with that accident.
The deputy rejected Duclos's theory that the August 17, 2000 injury caused the herniated disc. The deputy concluded Duclos did not sustain permanent disability as a result of the injury of August 17, 2000, and at most she sustained a temporary aggravation. The deputy determined Duclos was not entitled to permanent partial disability benefits, that her claim for penalty benefits was moot as it was premised on Duclos's claim she did not receive benefits based on her condition, and Virginia Surety should be credited for an overpayment as it paid in excess of what it was required to pay.
Duclos appealed to the Workers' Compensation Commissioner and Opportunity Village and Virginia Surety cross-appealed.
The commissioner's appeal decision corrected what had been perceived by Duclos as a mistake in the burden of proof applied by the deputy. The commissioner noted the deputy had little confidence in Duclos's credibility, and he gave deference to the deputy on this as he was present at the hearing and had the opportunity to assess her demeanor. That said, the commissioner affirmed the deputy's decision.
Duclos sought judicial review. The district court determined the issue raised was whether or not that part of the agency's decision denying Duclos recovery for the August 17, 2000 injury was supported by substantial evidence. The district court found, after reviewing the record as a whole, that there was substantial evidence and affirmed the agency.
I. SCOPE OF REVIEW
Iowa Code chapter 17A governs judicial review of decisions of the workers' compensation commissioner. Iowa Code § 86.26 (2003). In exercising its judicial review power, the district court acts in an appellate capacity. Clark v. Vicorp Restaurants, Inc., 696 N.W.2d 596, 603 (Iowa 2005). In reviewing the district court's decision, we apply the standards of chapter 17A to determine whether the conclusions we reach are the same as those of the district court. Id. If they are the same, we affirm; otherwise we reverse. Mycogen Seeds v. Sands, 686 N.W.2d 457, 463-64 (Iowa 2004). We are bound by the agency's findings of fact if supported by substantial evidence. Iowa Code § 17A.19(10)(f); Clark, 696 N.W.2d at 604; Mycogen Seeds, 686 N.W.2d at 464-65. Because factual determinations are within the discretion of the agency, so is its application of law to the facts. Clark, 696 N.W.2d at 604. We only reverse the agency's application of the law to the facts if we determine such an application was "irrational, illogical, or wholly unjustifiable." Iowa Code § 17A.19(10)(m); Finch v. Schneider Specialized Carriers, Inc., 700 N.W.2d 328, 331 (Iowa 2005); Clark, 696 N.W.2d at 604.
II. BURDEN OF PROOF AND REASONS FOR REJECTING EVIDENCE
Duclos argues the district court applied the wrong burden of proof and the agency did not give sufficient reasons for rejecting certain evidence. We have examined Duclos's arguments on these issues and find them to be without merit.
III. SUBSTANTIAL EVIDENCE
Duclos contends there is not substantial evidence to support the agency's finding that the August 17, 2000 incident caused only a temporary aggravation or that the deputy found Duclos lacked credibility. We disagree. Two doctors failed to connect Duclos's surgery to the August 17, 2000 incident. The third doctor, while testifying it was probable or possible it was connected, did not absolutely rule out other causes. We have considered other issues raised by Duclos and find them to be without merit. We affirm.