Opinion
No. 02-2004
Filed September 14, 2005
Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.
Normadge Dumire appeals from the district court ruling affirming the Iowa Workers' Compensation Commissioner's denial of her petition for Second Injury Fund (SIF) benefits. AFFIRMED.
Roger Carter, Columbia, Missouri, for appellant.
Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney General, for appellee.
Considered by Vogel, P.J., and Miller and Hecht, JJ.
Normadge Dumire appeals from the district court ruling affirming the Iowa Workers' Compensation Commissioner's denial of her petition for Second Injury Fund (SIF) benefits. She contends the court erred in affirming the agency because the commissioner applied incorrect legal standards and the opinion was affected by errors of law, was unreasonable, demonstrated an abuse of discretion, and was not supported by substantial evidence in the record as a whole. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
Dumire filed a petition for SIF benefits on October 23, 2000, and a hearing was held before a deputy workers' compensation commissioner on April 12, 2001. Dumire claimed a first loss to her knee from a July 22, 1999 work-related injury and a second loss to her right hand and arm sustained at her job on May 23, 2000. There is no dispute that Dumire has some degree of permanent loss of use or impairment from the injury to her right hand and her claim against that employer settled prior to the hearing on her SIF benefit petition. The first injury is what is in dispute in this case.
Dumire testified before the agency that the prior injury to her right knee occurred while she was working as a certified nurse's aide (CNA) for Cedar Falls Lutheran Home. While she was escorting a patient to the bathroom the patient fell on Dumire's right knee causing a "pop" and immediate pain. Dumire received treatment from an occupational medicine physician, Dr. Kirkle, on two occasions. Dr. Kirkle diagnosed Dumire with a "right knee patellar contusion." Her treatment consisted of medication, restricted duty, and a couple of visits to physical therapy. Treatment of her right knee ended after the minimal physical therapy and she has not sought medical treatment for her knee since.
Despite not seeking further treatment, Dumire stated she continues to have persistent pain and swelling in her knee which she treats with ice packs. She testified that her knee was better at the time of the hearing than it was when she hurt it in July of 1999 but also claimed she cannot return to work as a CNA due to her knee problems.
At the direction of her attorney, Dumire went to see Dr. Justin Ban, a board certified disability examiner. In a written report dated September 6, 2000, Dr. Ban diagnosed Dumire as having right patellofemoral syndrome. Dr. Ban stated in his report that the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment defines "permanent impairment" as "one that has become static or stabilized during a period of time sufficient to allow tissue repair and one that is unlikely to change in spite of further medical or surgical therapy," and that according to those Guides "an impairment is considered permanent if unlikely to change substantially by more than 3% within the next year, with or without medical treatment." He opined that based on these criteria Dumire had not yet reached maximum medical improvement, her knee condition had not yet become stable, and it was entirely possible that with evaluation and treatment further improvement could occur. Dr. Ban recommended that Dumire be further evaluated by an orthopedic surgeon. He further stated that in the event Dumire refused treatment he could at that time on the basis of weakness in her right lower extremity assign her a functional impairment of twelve percent to her lower extremity and five percent to the whole person.
In a May 11, 2001 arbitration decision the deputy commissioner denied Dumire's claim for SIF benefits. He concluded the claim should be denied because Dumire failed to show a permanent prior loss of use or impairment under the schedules. The deputy dismissed Dumire's petition with prejudice.
Dumire appealed to the workers' compensation commissioner. The commissioner agreed with the arbitration decision and concluded Dumire had failed to show a permanent prior loss of use or impairment as required for SIF liability. Thus, in a December 6, 2001 appeal decision the commissioner affirmed the denial of Dumire's claim for benefits and the dismissal of her petition.
Dumire then filed a petition for judicial review with the district court contending the commissioner's decision was affected by errors of law, unsupported by substantial evidence in the record, and was unreasonable, arbitrary, and capricious. She argued the commissioner erred as a matter of law in concluding she was not entitled to benefits because she had not yet reached maximum medical improvement. In an order filed November 14, 2002, the district court summarily affirmed the agency decision and dismissed Dumire's petition. Dumire appealed. Noting the district court did not have the benefit of the required agency record when it made its decision, our supreme court remanded the case to the district court for the limited purpose of "reconsidering its ruling . . . in light of the entire agency record."
The district court reconsidered Dumire's petition in light of the full agency record and filed a written ruling on June 10, 2004. The court stated that the only issue presented for judicial review was whether the commissioner acted correctly in determining Dumire did not establish a qualifying first loss under the requirements of the SIF. The court specifically held that the issue of whether the commissioner was justified in dismissing Dumire's petition with prejudice was not preserved for review because the issue was not addressed in the intra-agency appeal and it was being raised for the first time before the district court. After considering the full agency record the district court again affirmed the agency's decision to deny Dumire's petition for SIF benefits. The court concluded the commissioner was free to give more weight to Dr. Ban's opinion than to Dumire's opinion regarding permanency of the first injury and thus find Dumire failed to prove a permanent first injury.
Dumire appeals the district court's order affirming the agency's denial of her petition for SIF benefits. She contends the court erred in affirming the agency because the commissioner applied incorrect legal standards and the decision was affected by errors of law, was unreasonable, demonstrated an abuse of discretion, and was not supported by substantial evidence in the record as a whole.
II. SCOPE AND STANDARDS OF REVIEW.
Our review of a final decision of the workers' compensation commissioner, like that of the district court, is limited to correcting legal error. Second Injury Fund v. Shank, 516 N.W.2d 808, 812 (Iowa 1994). In determining whether the district court erred in exercising its power of judicial review, we apply the standards of Iowa Code chapter 17A (2001) to determine whether our conclusions are the same as those of the district court. Marovec v. PMX Indus., 693 N.W.2d 779, 782 (Iowa 2005). The agency's findings are akin to a jury verdict, and we broadly apply them to uphold the agency decision. Shank, 516 N.W.2d at 812.
We may reverse, modify, or remand to the commissioner for further proceedings if the agency's action was affected by an error of law, or if it is not supported by substantial evidence when the record is viewed as a whole. Quaker Oats Co. v. Ciha, 552 N.W.2d 143, 150 (Iowa 1996). Evidence is substantial if reasonable minds would find it adequate to reach the same findings. Murillo v. Blackhawk Foundry, 571 N.W.2d 16, 17 (Iowa 1997). The commissioner's conclusions do not lack substantial evidential supportmerely because inconsistent conclusions could be drawn from the same evidence. Id. The ultimate question is not whether the evidence supports a different finding, but whether it supports the finding the commissioner actually made. Id. III. ERROR PRESERVATION.
Here, as in the district court, Dumire raises the issue of whether the commissioner was justified in dismissing her petition with prejudice.
In actions pursuant to Iowa Code chapter 17A for judicial review of agency action, the district court functions solely in an appellate capacity to correct errors of law on the part of the agency. Garcia v. Naylor Concrete Co., 650 N.W.2d 87, 89 (Iowa 2002). Courts undertake review of action by administrative agencies only after full completion of any challenge available at the administrative level. Portz v. Iowa Bd. of Med. Exam'rs, 563 N.W.2d 592, 593 (Iowa 1997). Courts cannot be asked to review an administrative matter until the point has been fully pursued and lost before the agency. Id. The exhaustion requirement seeks to ensure an intra-agency review so the agency will have a chance to correct its own errors. Id.
In contested cases our review is limited to those questions considered by the administrative agency. General Tel. Co. v. Iowa State Commerce Comm'n, 275 N.W.2d 364, 367 (Iowa 1979).
An appellate court will consider only such questions as were raised and reserved in the lower court. The same principle . . . applies on review by courts of determinations of administrative agencies so as to preclude from consideration questions or issues which were not properly raised in the proceedings before the agency.
Id. (quoting 2 Am. Jur. 2d Administrative Law § 724, at 624 (1962) with footnotes deleted).
A party is precluded from raising issues in the district court that were not raised and litigated before the agency. Interstate Power Co. v. Iowa State Commerce Comm'n, 463 N.W.2d 699, 701 (Iowa 1990). Even constitutional issues must be raised at the agency level to be preserved for judicial review. Garwick v. Iowa Dep't of Transp., 611 N.W.2d 286, 288-89 (Iowa 2000).
Iowa Code sections 86.3 and 86.26 contemplate an intra-agency review by the workers' compensation commissioner as a required step in exhaustion of administrative remedies prior to seeking judicial review. See Continental Tel. Co. v. Colton, 348 N.W.2d 623, 627 (Iowa 1984) (applying 1983 Iowa Code). Here the deputy commissioner ordered that Dumire's original notice and petition be dismissed "with prejudice." Dumire raised no issue concerning the propriety of such a dismissal in her notice of appeal to the commissioner, in her intra-agency appeal brief, or in her intra-agency reply brief, and thus no such issue was presented to, litigated before, or passed upon by the agency in Dumire's intra-agency appeal. The district court held that because the issue of dismissal with prejudice was being raised for the first time before the district court it had not been preserved. We agree that because the issue was not presented to or passed upon by the agency and was raised for the first time in the district court judicial review proceeding it was not properly preserved to be reviewed by the district court or by this court.
Dumire sets forth several additional claims of error in the "Statement of Issues" portion of her brief. However, some of the issues she now attempts to raise on appeal were not raised before the district court or were not decided by the district court and thus are not preserved for our review. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) ("It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal."). Furthermore, although Dumire lists several issues in her argument headings, the only substantive argument she makes with any specificity in her brief is that she proved she had sustained a permanent loss or loss of use of her right knee and that the agency's determination she had not proved such a loss is not supported by substantial evidence in the record as a whole. Accordingly, we conclude any other issues are waived on appeal and confine our discussion to this one issue. See Iowa R. App. P. 6.14(1)( c) ("Failure in the brief to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue"). We now turn to the one issue properly before us on appeal, whether we agree with the district court that there is substantial evidence in the record to support the agency's finding that Dumire did not prove the previous, permanent disability she claimed, and the agency's resulting denial of SIF benefits.
IV. MERITS.
Iowa Code section 85.64 governs liability for SIF benefits. It provides in relevant part:
If an employee who has previously lost, or lost the use of, one hand, one arm, one foot, one leg, or one eye, becomes permanently disabled by a compensable injury which has resulted in the loss of or loss of use of another such member or organ, the employer shall be liable only for the degree of disability which would have resulted from the latter injury if there had been no pre-existing disability. In addition to such compensation, and after the expiration of the full period provided by law for the payments thereof by the employer, the employee shall be paid out of the " Second Injury Fund" created by this division the remainder of such compensation as would be payable for the degree of permanent disability involved after first deducting from such remainder the compensable value of the previously lost member or organ.
Pursuant to this section, the SIF is responsible for the difference between the disability caused by the current employer and the total amount of disability. Shank, 516 N.W.2d at 812.
To trigger the application of section 85.64, the employee must establish that (1) the employee has either lost, or lost the use of a hand, arm, foot, leg, or eye; (2) the employee sustained the loss, or loss of use of another such member or organ through a work related — that is, compensable — injury; and (3) there must be some permanent disability from the injuries. Id.; Anderson v. Second Injury Fund, 262 N.W.2d 789, 790 (Iowa 1978). The prior loss or loss of use need not be total. Shank, 516 N.W.2d at 813. It is the claimant's burden to prove some permanent disability resulting from both the initial injury and the injury of a second scheduled member. See Second Injury Fund v. Bergeson, 526 N.W.2d 543, 547-48 (Iowa 1995).
The agency had before it Dr. Ban's report as well as Dumire's testimony. As discussed above, Dr. Ban set forth the AMA Guides' definition of "permanent impairment" in his report and then opined that according to the criteria in the Guides Dumire had not yet reached maximum medical improvement. He stated that her right knee condition was not stable, that with treatment further improvement could occur, and he recommended an assessment by an orthopedic surgeon. The commissioner determined that Dr. Ban's report contained the best evidence on the issue of permanent disability because it relied on the AMA Guides. Based in whole or in large part on Dr. Ban's opinions the commissioner found that Dumire had not proved a permanent prior loss of use of or impairment to her right knee, and concluded she therefore had not met her burden to establish the prior permanent loss or impairment necessary to qualify for SIF benefits.
Dumire argues that although Dr. Ban's opinion stated further improvement could occur, it can and should be read as finding Dumire does in fact have a permanent disability to her right knee. She asserts that Dr. Ban's assessment in fact gave her a functional impairment of twelve percent of her lower extremity and five percent of her body as a whole. Based on this expert opinion and her own testimony Dumire argues she has sufficiently proven that she has a prior permanent loss or loss of use for purposes of section 85.64.
The expert medical evidence before the agency was subject to differing interpretations. However, it is well settled that the agency is free to accept or reject, in whole or in part, an expert's medical opinion. Lithcote Co. v. Ballenger, 471 N.W.2d 64, 66 (Iowa Ct.App. 1991). It is also the purview of the agency to accept or reject the claimant's opinion testimony. See Ritchey v. Iowa Employment Sec. Comm'n, 216 N.W.2d 580, 583 (Iowa 1974) (holding agency's determination of claimant's credibility has effect of jury verdict and the court is bound by such findings). Such judgment calls are clearly within the province of the agency and should be left for the agency to make. IBP, Inc. v. Harpole, 621 N.W.2d 410, 420 (Iowa 2001); Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824, 829 (Iowa 1992). As set forth above, "the question is not whether the evidence might support a different finding, but whether it supports the findings actually made." St. Luke's Hosp. v. Gray, 604 N.W.2d 646, 649 (Iowa 2000). We "should broadly and liberally apply those findings to uphold, rather than defeat, the [worker's compensation] commissioner's decision." Id. The commissioner, and not the court, weighs the evidence. Kiesecker v. Webster City Custom Meats, Inc., 528 N.W.2d 109, 111 (Iowa 1995).
Appling these standards to the case at hand, we conclude it was reasonable for the commissioner, in her discretion, to construe Dr. Ban's report as concluding Dr. Ban could not give Dumire a permanency rating because Dumire had not reached maximum medical improvement, and thus reasonable for the commissioner to determine that Dumire had not proved a prior permanent loss or loss of use. Accordingly we, like the district court, conclude substantial evidence supports the commissioner's determination that Dumire did not meet her burden to prove a prior permanent loss or loss of use from her earlier injury. We therefore affirm the district court order upholding the commissioner's denial of Dumire's petition for SIF benefits.