Opinion
No. 3-936 / 03-0171
May 14, 2004.
Appeal from the Iowa District Court for Polk County, Ronald H. Schechtman, Judge.
An employee appeals from a district court judicial review ruling that reversed an agency award of workers' compensation benefits. AFFIRMED.
Joseph Walsh of Hedberg, Owens, Hedberg Walsh, Des Moines, for appellant.
Tina Eick of Hopkins Huebner, P.C., Des Moines, for appellee.
Heard by Zimmer, P.J., and Miller and Hecht, JJ.
Dallas Clark appeals from a district court judicial review ruling that reversed an award of workers' compensation benefits. We affirm.
Background Facts and Proceedings.
Dallas Clark began working at Fisher Controls (Fisher) in 1972. In 1996 he was assigned to electrical construction work, which required heavy overhead lifting and sustained periods of neck posturing. Clark developed numbness in his left hand in April 1998. Although Clark continued to experience symptoms over the next few months, at no time did his symptoms require him to miss work.
On July 27, 1998 Clark was diagnosed by neurosurgeon Dr. John Mawk with moderate cervical osteoarthritis and probable cervical disc herniation. Dr. Mawk recommended that Clark return to work at full duty, with a permanent restriction on work at or above shoulder height. Clark questioned whether the restriction was intended to be permanent, and requested that Fisher clarify the nature of the restriction. There was no evidence in the record that Fisher did in fact do so. There was evidence, however, that Dr. Mawk did intend the restriction to be permanent.
Fisher presents us with a notation from its medical records that indicates on July 28, 1998 Dr. Milt VanGundy, a company physician, did "talk with Dr. Mawk about his evaluation and recommendation." However, that notation was not made a part of the record before the agency.
On July 29, Dr. Lloyd Thurston, a company physician, reviewed Clark's job as a construction electrician and concluded it could not reasonably accommodate Clark's restriction. Clark was instructed to bid on jobs that fit his restriction. He was placed in a machine operator position, which paid less than an electrician position. Clark filed a grievance over the change in job status, which was denied. Clark continued to question his restriction, and was eventually able to schedule a follow-up visit with Dr. Mawk. On August 24, 1998, after an MRI revealed cervical osteophytes significantly encroaching on the cervical nerve root, but no frank disc herniation, Dr. Mawk acceded to Clark's request to be returned to work without restriction.
The letter from Dr. Mawk stated, in part:
The patient now wants to return to work without restrictions, and he says that once I made him aware that extension [of his neck] will narrow the canal and `jam' his nerve roots, that is really all the information he needed and he will simply modify his neck posture while at work.
Under the union contract Clark was not allowed to "bump" back into his old job, but had to wait for an opening. Accordingly, he bid into a machine mechanic's job, which had the same pay scale as an electrician position, and was just as physically demanding. However, according to Clark, the mechanic position provided much less overtime than had his electrician position.
Clark remained in the mechanic's position until February 2000, when he was able to transfer back into an electrician position. Approximately two months later Clark filed a claim for workers' compensation benefits, alleging a cumulative injury commencing in April 1998. By the time of the July 2, 2001 arbitration hearing, Clark had been working in the new electrician position for about one and one-half years. He was at the top of the pay scale for electricians, and receiving the type of overtime he had received in his former electrician position.
Deputy Workers' Compensation Commissioner Michael Trier found that Clark's employment neither caused his arthritic condition, nor worsened the condition, and that Clark did not suffer from any permanent impairment. The deputy concluded, however, that because Clark's employment caused his condition to become symptomatic, Clark sustained a cumulative traumatic injury "in the nature of an aggravation of the preexisting arthritic condition," with a stipulated injury date of April 9, 1998.
Deputy Trier further concluded that Clark had suffered a five percent permanent partial industrial disability. While the deputy acknowledged the absence of an injury-related permanent impairment would normally preclude an award of benefits, he concluded an exception is made when an employer takes actions that adversely affect the employee's earnings. The deputy concluded this had occurred when Fisher moved Clark to a lower-paying position, which "caused [Clark] to lose several thousand dollars of income." He therefore awarded Clark twenty-five weeks of permanent partial disability benefits. Fisher appealed and Deputy Trier, now the interim commissioner, summarily affirmed his own opinion. Fisher sought judicial review of this decision.
Following hearing, the agency decision was reversed on judicial review. The district court determined Clark had not shown an industrial disability. Noting that by August 24, 1998 Clark was capable of doing any job within the plant or the general job market, and currently earned the same wages as other electricians, the court concluded he had not suffered a reduction in his present ability to earn in the competitive job market. Clark appeals.
Scope of Review.
Review of agency actions is limited to correcting errors at law. IBP, Inc. v. Harpole, 621 N.W.2d 410, 414 (Iowa 2001). The agency's decision will be upheld if supported by substantial evidence. Iowa Code § 17A.19(10)(f) (Supp. 1999). This requires that the entirety of the record, including supporting and detracting relevant evidence, as well as credibility assessments, be sufficient to allow a reasonable and neutral person to reach the same conclusion as the agency. Id.
Permanent Physical Impairment.
We first address Clark's argument that the agency erred when it determined his April 1998 injury did not result in any permanent physical impairment. Clark argues the evidence of impairment was "uncontroverted," and that the agency failed to give proper weight to the opinion of his expert, Dr. Robert Jones, and failed to view the testimony of Dr. Mawk "in the proper light." However, a review of the record indicates the agency was presented with conflicting evidence on the issue of physical impairment.
Although Clark did not appeal this finding to the agency, or raise it upon judicial review, Fisher concedes that, as the prevailing party, Clark was not required to take this step in order to preserve error. See Johnston Equip. Corp. of Iowa v. Industrial Indem., 489 N.W.2d 13, 16 (Iowa 1992).
Clark's expert, Dr. Robert Jones, opined Clark had sustained a permanent impairment as a result of a work-related injury that began in April 1998. Although Dr. Mawk agreed that Dr. Jones's diagnosis of Clark's physical condition was not "significantly different than [his] own findings," he rejected the suggestion that Clark's underlying arthritic condition was work-related, or that an incident of Clark's work worsened his underlying condition. Dr. Mawk opined only that Clark's job duties caused his underlying condition to become symptomatic, and that, given his underlying condition, Clark was likely to continue experiencing symptoms on a permanent basis, or become "progressively symptomatic." Although Dr. Mawk agreed Clark's "condition" resulted in permanent impairment, he did not tie that impairment to Clark's work or any work-related injury.
It seems clear from reading the totality of Dr. Mawk's deposition that he used "condition" to refer to Clark's underlying physical problems, rather than the symptomatic aggravation of those physical problems.
It is for the agency, and not this court on appeal, to determine the weight to be given to any medical opinion. See Sherman v. Pella Corp., 576 N.W.2d 312, 321 (Iowa 1998) (noting agency may accept or reject medical opinion in whole or in part, and determines weight to be afforded opinion, given surrounding circumstances). The evidence before the agency was sufficient to allow a reasonable, neutral, and detached person to conclude that Clark had not suffered a permanent, work-related, physical impairment. Accordingly, the agency's finding on physical impairment is supported by substantial evidence, and will not be disturbed on appeal. See Iowa Code § 17A.19(10)(f).
Industrial Disability.
The primary issue in this appeal is whether, in the absence of a work-related physical impairment, Clark nevertheless suffered an industrial disability that entitled him to the receipt of permanent partial disability benefits. In considering this question we accept the agency's finding that the transfer out of the electrician position caused Clark to lose "several thousand dollars of income." Substantial evidence in the record supports the conclusion that, at least between July 1998 and February 2000, Clark's actual earnings were reduced. We also look to the uncontroverted evidence that, as of the date of the arbitration hearing, Clark was once again performing his pre-transfer job, and earning at least pre-transfer wages. Unfortunately for the Clark, it is this last fact that we find controlling.
Neither party raises, as an issue on appeal, whether substantial evidence supported the agency's determination that Clark "sustained an injury in the nature of an aggravation of the preexisting arthritic condition in his neck."
Industrial disability is measured by the employee's loss of earning capacity. Mortimer v. Fruehauf Corp., 502 N.W.2d 12, 14 (Iowa 1993). The focus is on the employee's present ability to earn in the competitive market. Thilges v. Snap-On Tools Corp., 528 N.W.2d 614, 617 (Iowa 1995). "The question is whether [the] work-related injury has `wholly disable[d] [Clark] from performing work that [his] experience, training, intelligence, and physical capacities would otherwise permit [him] to perform.'" Wal-Mart Stores, Inc. v. Caselman, 657 N.W.2d 493, 501 (Iowa 2003) (quoting IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 633 (Iowa 2000)).
Here, the record overwhelmingly demonstrates that at the time of the arbitration hearing, any aggravation of Clark's preexisting condition was not interfering with his ability to perform his own job at Fisher, much less impacting his ability to earn in the competitive market. Clark was earning the same income and receiving the same amount of overtime in the same position he held before the April 1998 injury. Under the definition of industrial disability articulated in Caselman and numerous other cases, there was not substantial evidence that Clark suffered an industrial disability.
Although Clark testified he was still symptomatic, he further testified that he was able to control his symptoms by taking over-the-counter medications and limiting the position of his neck to avoid extension.
Clark contends that his award of benefits is nevertheless authorized by the reasoning of Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980) and McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Clark urges us to read Blacksmith and McSpadden as requiring an award of permanent partial disability benefits any time an injury results in an employer transferring the employee to a lower-paying position. We do not, however, read Blacksmith and McSpadden so broadly.
We agree Blacksmith and McSpadden stand for the proposition that a permanent partial disability award may be appropriate even in the absence of a physical impairment. Blacksmith, 290 N.W.2d at 354; McSpadden, 288 N.W.2d at 192. We agree they can be read as approving such an award in some cases where an employer, as a result of the employee's work-related injury, transfers the employee into a lower-paying position. Blacksmith, 290 N.W.2d at 354; McSpadden, 288 N.W.2d at 192. Those cases did not, however, dispense with the requirement that there be a demonstrable impact on the employee's present earning capacity.
In Blacksmith, the employer had wholly disqualified the employee from his higher-paying job:
This is the case of an employee who has no apparent functional impairment and who wants to work at the job he had before but is precluded from doing so because his employer believes the past injury disqualifies him, resulting in a palpable reduction in earning capacity.
Blacksmith, 290 N.W.2d at 354 (emphasis added). Thus, at the time of hearing, the employer's actions were having a negative impact on the employee's earning ability. Similarly, the court in McSpadden indicated an award would be justified if an employer refused to provide an employee work, or if an employee could not find "other suitable work after making bona fide efforts." McSpadden, 288 N.W.2d at 192. However, the key to determining disability was still articulated as the employee's "capacity to perform his work or to earn equal wages in other suitable employment." Id.
Clark would have us defer to the agency's experience in such matters, and adopt the interpretation of Blacksmith and McSpadden found in the agency case of Parr v. Nash Finch Co., 1 Industrial Commissioner Report 256 (App. Oct. 31, 1980):
[I]f a worker is placed in a position by his employer after an injury to the body as a whole and . . . that injury . . . results in actual reduction in earnings, it would appear this would justify an award of industrial disability. This would appear to be so even if the worker's "capacity" to earn has not been diminished.
However, even in Parr, the agency was presented with a situation where the employee had been terminated by the employer because he had been "injured too many times on the work, and . . . the work was too heavy," the employer did not offer the employee another job, the work-related injury reduced the number of areas in which the employee was able to find employment, and bona fide attempts at finding substitute employment had been unsuccessful. Parr, 1 Indus. Comm'n Report at 260-62.
Clark's case is clearly distinguishable from that of the employees in Parr and Blacksmith. As previously noted, at the time of the arbitration hearing, Clark had not only bid out of the lower-paying position, but was earning as much money as he would have earned had the April 1998 injury never occurred. Clark no longer suffered a negative impact on his present ability to earn in the competitive market. Under the circumstances, we agree with the district court's determination that Clark did not establish an industrial disability that entitled him to permanent partial disability benefits. Accordingly, we affirm the decision of the district court. AFFIRMED.
Clark also contends that, if he was not entitled to permanent partial disability benefits, then upon remand the agency should be instructed to consider an award of temporary partial disability benefits as compensation for his temporary reduction in earning capacity. However, Clark never raised a claim for temporary benefits before the agency. As such, we do not address this claim on appeal. See Cargill, Inc. v. Conley, 620 N.W.2d 496, 500 (Iowa 2000) ("It has long been the law in Iowa that claims not raised before the industrial commissioner will not be considered by the courts on judicial review.").
Miller, J., concurring; Hecht, J., dissenting.
I respectfully dissent. The agency found "Clark sustained an injury in the nature of an aggravation of the preexisting arthritic condition in his neck." The agency further found that although Clark failed to prove the cumulative trauma cervical injury caused permanent physical impairment, he did prove a five percent permanent partial disability. The district court reversed, concluding that the claim must fail because Clark failed to prove: 1) "the injury caused some permanent physical [bodily] alteration . . ."; and 2) a permanent loss of earning capacity as a consequence of a temporary demotion. I believe both of these conclusions by the district court are affected by errors of law.
First, I note that my dissent in this case is guided by two important notions overlooked by the district court. Our task, as a reviewing court, is to "broadly and liberally apply [the agency's] findings to uphold rather than to defeat the agency's decision." IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 632 (Iowa 2000). Also, "we interpret the workers' compensation statute liberally, keeping in mind that the law was enacted `for the benefit of the working person.'" Stone Container Corp. v. Castle, 657 N.W.2d 485, 489 (Iowa 2003) (quoting Mortimer v. Fruehauf Corp., 502 N.W.2d 12, 14 (Iowa 1993)).
I believe the district court erred in concluding Clark's award of permanent partial disability benefits must be supported by a finding of permanent loss of bodily function. In Blacksmith v. All-American, Inc., 290 N.W.2d 348, 349 (Iowa 1980), the agency's arbitration decision awarded Blacksmith one and four-sevenths weeks of temporary disability compensation for work-related thrombophlebitis. Thereafter the employer disqualified Blacksmith from his position as a truck driver and transferred him to a less remunerative dock job because of a perceived risk that truck driving could cause a recurrence of phlebitis. Blocksmith, 290 N.W.2dat 350. Blacksmith filed a review-reopening claim in which he sought permanent partial disability benefits as a consequence of the job transfer and resulting loss of earnings. Id. The agency rejected that claim, however, on the ground that Blacksmith's phlebitis was related to a pre-existing condition that was not aggravated by employment with All-American. Id. at 352. Our supreme court reversed the agency's decision on the ground that All-American's liability for the injury had been established in the earlier arbitration proceeding. Id. at 353. Because that earlier proceeding had established Blacksmith's injury in the course and scope of employment, all that remained for determination in the review-reopening proceeding was the question of whether claimant could establish that his disability exceeded that which was awarded in the arbitration decision. On this question the court held "that Blacksmith did incur an increased industrial disability [after the agency's arbitration award] and [was] not barred from recovery by failure to prove an increased functional disability of his leg." Id. at 354. Notably, there is no suggestion the agency found Blacksmith had proved permanent physical impairment in the earlier arbitration proceeding in which the agency only awarded weekly benefits for temporary disability. Indeed, our supreme court noted that although Blacksmith "[had] no apparent functional impairment," he established a reduced earning capacity as a matter of law. Id. Thus, I would hold that the district court committed legal error when it concluded Clark's industrial disability claim must fail in the absence of proof of permanent "bodily alteration."
In Blacksmith our supreme court stated the well-established principle that "[t]he extent of [the claimant's] industrial disability is an issue of fact for the commissioner to resolve." Id. In the case now before the court, the agency found Clark sustained a five percent industrial disability as a consequence of Fisher's decision to transfer him to a lower paying job. My review of the record and the factors the agency routinely considers in assessing industrial disability causes me to conclude that the agency's finding is supported by substantial evidence. Accordingly, I conclude the district court erred in substituting its judgment for that of the agency.
The majority excuses the district court's fact-finding by agreeing with the district court's other conclusion that Clark's industrial disability claim must fail as a matter of law because after eighteen months Clark regained his former job and rate of pay. Although the record does clearly establish that he regained his job and rate of pay before the arbitration hearing, the determination of whether Clark nonetheless sustained a loss of earning capacity is a question of fact for the agency.
The record contains substantial evidence supporting a finding that Fisher transferred Clark to a lower paying job after a medical report suggested Clark should permanently avoid overhead work above the level of his shoulders. Although the physician who authored that report subsequently withdrew this work restriction at Clark's request, Fisher had already filled Clark's position. Despite his best efforts, Clark was unable to promptly reclaim his former position. After working approximately eighteen months in a lower paying job to which Fisher transferred him, Clark was able to "bid back" into the job he held at the time of the injury. The agency found as a consequence of the job transfer Clark lost "several thousand dollars of income" before he was able to resume his former position. In my view, the agency could and did find on these facts that Clark permanently lost those earnings as a consequence of the work-related aggravation of a pre-existing condition and Fisher's reaction to it. Moreover, it was for the agency to determine whether these work-related circumstances beyond Clark's control resulted in a modest loss of earning capacity for which he should be compensated under Chapter 85.