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Milbourne v. Second Injury Fund

Court of Appeals of Iowa
Feb 28, 2003
662 N.W.2d 374 (Iowa Ct. App. 2003)

Opinion

No. 2-905 / 02-0441.

Filed February 28, 2003.

Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.

The petitioner appeals a district court ruling affirming agency action concluding she was not entitled to compensation from the Second Injury Fund. AFFIRMED.

Ruth Carter of Carter Law Firm, P.C., Sioux City, for appellant.

Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney General, for appellee.

Considered by Sackett, C.J., and Miller and Eisenhauer, JJ.


The petitioner appeals a district court ruling affirming the decision of the Deputy Workers' Compensation Commissioner that petitioner was not entitled to benefits from the Second Injury Fund since her injuries were a consequence of her original work-related injury, not a separate injury. Petitioner contends (1) the agency applied an incorrect standard in determining whether her injury was a sequela of her first injury, and (2) the agency's decision was not supported by substantial evidence. We affirm.

I. Background Facts and Proceedings. On December 21, 1996, Cathy Milbourne broke her left ankle while working at K-Mart in Urbandale. Milbourne recovered slowly, but ultimately was cleared to return to work with no restrictions. K-Mart's corporate physician determined that Milbourne suffered a seven percent permanent loss of her left leg.

In May 1998, Milbourne sought treatment from Dr. Timothy Smith for pain in her right foot. Dr. Smith concluded that Milbourne suffered from heel bone spurs that caused plantar fasciitis and right heel pain. Milbourne subsequently commenced this action with the Second Injury Fund to recover for her industrial disability. Her petition states the injury was caused by "[s]tress from favoring left foot leg".

Dr. Justin Ban also examined Milbourne. He found her new injury resulted from her shifting her weight to her right foot to favor her injured left ankle. He concluded Milbourne's new injury was a "worsening, hastening, or deterioration of a preexisting condition." Following a hearing, the Deputy Commissioner concluded:

This agency is frequently presented with similar issues, and has generally found a second injury of this nature a "sequela" of the original injury and compensated on that basis. The classic example is a leg or foot injury resulting in an altered gait that eventually causes injury to the hip or back. This fact pattern routinely results in a finding that the hip or back was part and parcel of the original insult. This is significant because the entire loss is then compensated industrially — that is, a loss of earning capacity — rather than according to the statutory schedule that would otherwise apply.

The record in this case clearly convinces that Milbourne sustained but one compensable injury: originally to the left leg, but resulting in the aggravation of a preexisting condition in the right foot. As such, the requirement of a "second" injury requisite to fund liability is not met. The Fund accordingly prevails.

Milbourne filed a petition for judicial review of the agency's decision. The district court concluded the agency's decision was supported by substantial evidence and affirmed. The court specifically noted Milbourne failed to introduce evidence indicating that the preexisting problem in her right foot qualified as a first loss. Milbourne has appealed.

II. Scope of Review. On judicial review of agency action, the district court functions in an appellate capacity, applying the standards of Iowa Code section 17A.19 (2001). Section 17A.19(10)(f) provides that, in a contested case, the court shall grant relief from an agency decision if substantial rights of a person have been prejudiced because agency action is unsupported by substantial evidence in the record made before the agency when the record is viewed as a whole. We give only limited deference to the agency's interpretation of law. Gaffney v. Iowa Dep't of Employment Servs., 540 N.W.2d 430, 433 (Iowa 1995). Our review is limited to determining whether the district court correctly applied the law in exercising its section 17A.19(8) judicial review function. Herrera v. IBP, Inc., 633 N.W.2d 284, 287 (Iowa 2001). We apply the standards of section 17A.19 to the agency action and determine whether our conclusions are consistent with those of the district court. Brown v. Quik Trip Corp., 641 N.W.2d 725, 727 (Iowa 2002).

III. Second Injury Fund. The Iowa Second Injury Fund compensates an injured worker for a permanent industrial disability resulting from the combined effect of two separate injuries to a scheduled member. Iowa Code §§ 85.63-85.69 (Iowa 2001). Under this statute, three requirements must be met to invoke Second Injury Fund liability, (1) permanent loss of use of a scheduled member, (2) permanent loss of use of another member through a compensable subsequent injury, and (3) permanent industrial disability to the body as a whole arising from both the first and second injuries, which is greater in terms of relative weeks of compensation than the sum of the scheduled allowances for those injuries. Second Injury Fund v. Shank, 516 N.W.2d 808, 812 (Iowa 1994). It is the cumulative effect of the scheduled injuries resulting in industrial disability to the body as a whole, rather than the injuries considered in isolation, that triggers the Fund's proportional liability. Second Injury Fund v. Braden, 459 N.W.2d 467, 470 (Iowa 1990).

Based on the record as a whole, we conclude the district court correctly affirmed the agency's ruling that Milbourne's second injury arose from an aggravation of a preexisting condition exacerbated by the original injury and therefore was not entitled to recover from the Fund. Dr. Ban, the only expert to testify at trial, stated in his analysis of Milbourne's right heel:

The physical examination and a review of the medical records indicates [sic] that the examinee developed a plantar fasciitis of the right lower extremity following the injury to her left lower extremity. On x-ray the examinee was found to have a calcaneal spur on the plantar aspect of the foot which would predispose her to the development of a plantar fasciitis. Following the injury to her left lower extremity more weight bearing and therefore greater stress was transferred to the uninjured or normal right lower extremity. As a result the examinee's plantar fasciitis was permanently aggravated; that is, there was a worsening, hastening, or deterioration of a preexisting condition. (emphasis added).

We find no evidence there was a preexisting problem with her right foot that qualified as a first loss. Milbourne testified at the agency hearing she believed her complaints regarding her pain in her right foot were the result of putting extra weight on her right foot to compensate for her left ankle injury. Dr. Ban's analysis clearly stated the condition in her right heel was aggravated by her previous left ankle injury, and that the plantar fasciitis was permanently aggravated by the previous injury. Dr. Ban was the only expert who testified at the hearing. Whether an injury has a direct causal connection with the employment or arose independently thereof is essentially within the domain of expert testimony. Dunlavey v. Economy. Fire Cas. Co., 526 N.W.2d 845, 853 (Iowa 1995).

The question of whether Milbourne's injury to her right foot was a new and separate injury or one aggravated by the previous injury is a judgment call. Judgment calls are to be left to the agency. IBP, Inc. v. Harpole, 621 N.W.2d 410, 418 (Iowa 2001). An agency's decision does not lack substantial evidence because inconsistent conclusions may be drawn from the same evidence. Id. A reasonable person could conclude from the evidence Milbourne's injury to her right foot was aggravated when she placed more weight on her right foot to favor her injured left ankle. The agency applied the correct standards to determine whether Milbourne's injury was a sequela of the first injury. The agency's decision was supported by substantial evidence, and the district court correctly affirmed the agency's decision on judicial review.

AFFIRMED.


Summaries of

Milbourne v. Second Injury Fund

Court of Appeals of Iowa
Feb 28, 2003
662 N.W.2d 374 (Iowa Ct. App. 2003)
Case details for

Milbourne v. Second Injury Fund

Case Details

Full title:CATHY MILBOURNE, Plaintiff-Appellant, v. SECOND INJURY FUND OF IOWA…

Court:Court of Appeals of Iowa

Date published: Feb 28, 2003

Citations

662 N.W.2d 374 (Iowa Ct. App. 2003)