Opinion
No. 5-645 / 04-1912
Filed October 26, 2005
Appeal from the Iowa District Court for Polk County, Artis Reis, Judge.
Mid-Seven Transportation Company and Charles Coffey appeal after the district court affirmed the agency decision that Coffey was entitled to workers' compensation benefits. AFFIRMED.
Stephen W. Spencer and Joseph M. Barron of Peddicord, Wharton, Spencer Hook, LLP, Des Moines, for petitioners-appellants.
Charles E. Cutler and Jack H. Pennington of Cutler Law Firm, P.C., West Des Moines, for respondent-appellee.
Heard by Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ.
Both Charles Coffey and Mid-Seven Transportation Company (Mid-Seven) sought judicial review of the agency decision that Coffey was entitled to workers' compensation benefits at the rate of $472.18 based on a seventy-five percent impairment rating. The district court affirmed the agency. On appeal to our court Mid-Seven argues (1) the agency erred in finding Coffey suffered from post-polio syndrome, (2) if Coffey does in fact suffer from post-polio syndrome, the agency erred in finding a causal connection to the work injury, and (3) the agency erred in its calculation of Coffey's weekly benefit rate by excluding certain weeks as "short" weeks. On cross-appeal Coffey claims the agency erred by not finding that Coffey was permanently and totally disabled pursuant to the "odd lot" doctrine. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
Charles Coffey was employed as a driver for Mid-Seven when he sustained a work injury that arose out of and in the course of his employment on February 8, 1994. There is no dispute that on February 8, 1994 Coffey's left leg was run over by an eighteen-wheel tractor-trailer. Coffey sustained multiple injuries from the accident. Coffey received substantial treatment over an extended period of time for his injury, including several surgeries and physical therapy.
Coffey filed a petition on January 29, 1998 for workers' compensation benefits. He claimed injury to his back, leg, and head. Coffey also claimed the accident caused post-polio syndrome. Coffey claimed he was permanently disabled by the work injury.
When Coffey was a child he was infected with polio. The polio virus caused injury to Coffey's right foot and leg. From 1955 until the present, Coffey has worn a brace on his right foot.
During Coffey's rehabilitation from the work injury he was diagnosed with post-polio syndrome. Medical opinions in the record indicate Coffey's post-polio syndrome was caused by the February 8, 1994 work accident. The symptoms of post-polio syndrome reported by Coffey include: whole body fatigue; muscle weakness; pain and cramping in both of his legs, his pelvis, and his lower back; and difficulty breathing and swallowing. Citing the extensive medical evidence presented by Coffey, the agency found Coffey's post-polio syndrome was causally related to his work injury. Additionally, the agency found the post-polio syndrome impaired Coffey's entire body, not just his extremities.
The deputy workers' compensation commissioner believed Coffey was motivated to rehabilitate himself and return work; however, he was unable to return to work on a regular, full-time basis due to the lingering effects of the work injury. The agency determined Coffey was entitled to workers' compensation benefits. Coffey was awarded temporary total disability benefits from the date of injury through August 15, 1994, the date on which it was determined that Coffey had reached maximum medical improvement. Coffey was further awarded permanent partial disability benefits based upon a seventy-five percent impairment rating. Based on the determination that Coffey's gross weekly wage prior to the injury was $769.19, Coffey was awarded a weekly benefit of $472.18 for a period of 375 weeks.
Both Coffey and Mid-Seven sought judicial review of the agency decision. The district court affirmed the agency. On appeal to our court Mid-Seven argues (1) the agency erred in finding Coffey suffered from post-polio syndrome, (2) if Coffey does in fact suffer from post-polio syndrome, the agency erred in finding a causal connection to the work injury, and (3) the agency erred in its calculation of Coffey's weekly rate of benefit. On cross-appeal Coffey claims the agency erred by not finding that he was permanently and totally disabled.
II. SCOPE OF REVIEW.
Our scope of review is governed by the judicial review provisions of Iowa Code chapter 17A.19(10) (2001). Wal-Mart Stores, Inc. v. Caselman , 657 N.W.2d 493, 498 (Iowa 2003). Our review under Iowa Code chapter 17A is for correction of errors at law, not de novo. Id.
Section 17A.19(10) "reaffirms the notion that courts must not `simply rubber stamp the agency fact finding without engaging in a fairly intensive review of the record to ensure that the fact finding is itself reasonable.'" Caselman, 657 N.W.2d at 499 (quoting Arthur E. Bonfield, Amendments to Iowa Administrative Procedure Act at 68 (1998)). An agency's fact findings are binding on us if supported by substantial evidence in the record before the court when that record is viewed as a whole. Iowa Code § 17A.19(10)(f). Substantial evidence is "the quantity and quality of evidence that would be deemed sufficient by a neutral, detached, and reasonable person, to establish the fact at issue when the consequences resulting from the establishment of that fact are understood to be serious and of great importance." Iowa Code § 17A.19(10)(f)(1); Univ. of Iowa Hosps. and Clinics v. Waters , 674 N.W.2d 92, 95 (Iowa 2004).
III. ANALYSIS
Diagnosis of Post-Polio Syndrome.
Mid-Seven claims Coffey did not provide substantial evidence that he suffered from post-polio syndrome. We disagree. There is substantial evidence in the record to support the agency decision.
Dr. Lauro Halstead, who was described by the deputy commissioner as having impeccable credentials, as "an international leader in the post-polio field," as an original member of the Post Polio Task Force, and as someone who has written significant materials about post-polio syndrome, concluded Coffey had post-polio syndrome. Dr. Halstead examined Coffey and reviewed his medical records. In his deposition testimony, Dr Halstead was asked what diagnosis he arrived at after examining Coffey. Dr. Halstead responded, "He was diagnosed with post-polio syndrome." More particularly, we note that Dr. Halstead testified in his deposition that he found that Coffey suffered from the primary symptoms of post-polio syndrome. Those symptoms included decreased muscle strength, whole-body fatigue, and muscle pain.
Dr. Gwendolyn Ford, a neurologist with a subspecialty in neuromuscular disease who examined Coffey when she worked at the University of Iowa Hospitals and Clinics, also reached the conclusion Coffey suffered from post-polio syndrome. In deposition testimony, Dr. Ford stated it was her opinion to a reasonable degree of medical certainty that Coffey suffered from post-polio syndrome. Additionally, Dr. Ford noted in her reports that Coffey complained of a "slow progression of weakness," severe pain in his legs and back, and whole-body fatigue, which were identified as the primary symptoms of post-polio syndrome.
In addition, Coffey's family physician, Dr. Laurence Rasmussen, asserted in deposition testimony that he believed Coffey suffered from post-polio syndrome.
We conclude there is substantial evidence in the record to support the agency finding that Coffey suffered from post-polio syndrome.
Work Injury as the Cause of Coffey's Post-Polio Syndrome.
Mid-Seven claims Coffey did not produce substantial evidence that his post-polio syndrome was caused by the work injury. We disagree. There is substantial evidence in the record to support the agency decision.
Dr. Halstead concluded, in a letter to Coffey's attorney, that "[t]here is a reasonable possibility that Mr. Coffey's diagnosis of Post-Polio Syndrome would be related to the work-related injury on February 8, 1994." Additionally, the following exchange is found in the deposition testimony of Dr. Halstead: "Q. Do you think [Coffey's] polio syndrome was caused by or the result of the February 8, 1994 accident. A. Yes, I do."
Dr. Ford indicated that "the clear onset of the post-polio syndrome began as a result of the motor vehicle accident." In reaching this conclusion, Dr. Ford relied on her review of Coffey's medical records which indicated to her that Coffey had not complained of post-polio syndrome symptoms prior to the work injury and maintained an active life prior to the work injury. Additionally, in her deposition testimony Dr. Ford gave numerous reasons as to why she believed that thyroid problems and vascular problems were not the cause of Coffey's symptoms, as Mid-Seven argues.
Additionally, Dr. Rasmussen asserted that it was his belief to a reasonable degree of medical certainty that Coffey's post-polio syndrome was in some way related to the work injury.
We conclude that there is substantial evidence in the record to support the agency finding that Coffey's post-polio syndrome was caused by the work injury.
Weekly Benefit Rate.
The district court concluded Coffey was entitled to benefits at the rate of $472.18 per week. Iowa Code section 85.36 provides that for employees paid on an hourly or daily basis, a thirteen-week average should be used to calculate the rate, using the thirteen weeks immediately preceding the injury. The Code also provides that "[a] week which does not fairly reflect the employee's customary earnings shall be replaced by the closest previous week with earnings that fairly represent the employee's customary earnings." Iowa Code § 85.36(6). The issue in determining the customary earnings is "whether the hours of work in any particular workweek are representative of the hours typically or customarily worked by an employee during a typical or customary full week of work." Griffin Pipe Prods. Co. v. Guarino , 663 N.W.2d 862, 866 (Iowa 2003). Additionally, we note that "[w]ith respect to the workers' compensation statute in particular, we keep in mind that the primary purpose of chapter 85 is to benefit the worker and so we interpret this law liberally in favor of the employee." Id. at 865 (citing Stone Container Corp. v. Castle, 657 N.W.2d 485, 489 (Iowa 2003)).
The calculation of Coffey's benefit rate excluded three weeks as "short" weeks, which were weeks that the deputy determined did not fairly represent Coffey's customary earnings. A representative for Mid-Seven testified that the weeks where Coffey earned substantially less than $500 were likely weeks that Coffey did not work a full week. Additionally, two weeks that included holidays (Christmas and New Year's Day) were determined to be unrepresentative of Coffey's customary earnings and were excluded.
We conclude there is substantial evidence in the record to support the agency's conclusion that particular workweeks were not representative of the hours typically or customarily worked by an employee during a typical or customary full week of work and we affirm the agency calculation.
Total Permanent Disability.
On cross-appeal Coffey argues the agency erred in not finding that he was totally and permanently disabled. Coffey argues that the "odd lot" doctrine should apply to his case because the services that he can perform due to his disability are limited in quality, dependability, and quantity, such that a reasonable and stable market does not exist for his services. Guyton v. Irving Jenson, Co., 373 N.W.2d 101, 105 (Iowa 1995). An employee is considered totally disabled when he cannot perform regular work duties on a regular eight hour per day basis. See Acuity Ins. Co. v. Foreman, 684 N.W.2d 212, 219 (Iowa 2004).
The employee has the prima facie burden of production to show that suitable work is not regularly and continuously available. Guyton, 373 N.W.2d at 105.
Mid-Seven argues the following evidence demonstrates the Coffey did not satisfy his prima facie burden: (1) the only objective analysis of Coffey's functional abilities was done in 1994 and indicated Coffey could work at medium level; (2) other health problems of Coffey could explain his work restrictions; (3) Coffey has been active in his personal life, as he reported to his physicians in 2001 that he was fairly active, he plays golf, and can exercise; (4) a vocational counselor indicated Coffey had good employment potential but that his demands as to pay were somewhat unreasonable; and (5) surveillance video shows Coffey as being physically active at a fundraising event over a period of four days.
We conclude that there is substantial evidence in the record to support the agency conclusion that Coffey was not totally disabled.