Opinion
No. 1-775 / 00-1603.
Filed December 11, 2002.
Appeal from the Iowa District Court for Kossuth County, DAVID A. LESTER, Judge.
The petitioner appeals from the district court's ruling on judicial review of the chief deputy workers' compensation commissioner's decision on her worker's compensation claims. AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH INSTRUCTIONS.
Mark S. Soldat, Algona, for appellant.
Joseph M. Barron of Peddicord, Wharton, Spencer Hook, P.C., Des Moines, for appellee Snap-On Tools Corp.
Timothy A. Clausen of Klass, Stoik, Mugan, Villone, Phillips, Orzechowski, Clausen Lapierre, L.L.P., Sioux City, for appellee Royal Insurance Co.
Heard by VOGEL, P.J., and MILLER and VAITHESWARAN, JJ.
Theresa Pesicka appeals from the district court's ruling on judicial review of the chief deputy workers' compensation commissioner's decision on her workers' compensation claims. She contends that the district court erred (1) in failing to award her additional temporary disability benefits under Iowa Code section 85.33(2) (1995) when she did not work overtime for several months following her elbow injury, (2) in failing to award her certain penalty benefits, (3) in determining that there was substantial evidence to affirm an award based on a two percent medical impairment rating for her elbow injury, (4) in determining that substantial evidence supported the finding that she did not suffer a cumulative injury, (5) in determining that substantial evidence supported the finding that she sustained a zero percent loss of earning capacity, and (6) in concluding that no review-reopening relief was warranted. We affirm in part, reverse in part and remand with instructions.
I. BACKGROUND FACTS AND PROCEEDINGS.
Theresa Pesicka commenced employment with Snap-On Tools Corporation in 1984. Royal Insurance Company provided workers' compensation coverage for Snap-On at the time Pesicka suffered her initial work injury. Subsequently, Snap-On became self-insured. Pesicka worked in various jobs for Snap-On, including as a press brake operator, and most recently as a painter.
In 1984, Pesicka began reporting pain in her shoulders. On August 31, 1987, she was diagnosed with a condition caused by repetitive muscle activity. She continued to complain of pain to her shoulder and neck and numbness and tingling in her left arm and hand. Doctors recommended against jobs involving repetitive motion.
In 1990, Pesicka filed her first workers' compensation claim, alleging she suffered a cumulative work injury to both of her upper extremities and her back, including her neck and shoulder. In July 1994, the chief deputy compensation commissioner (commissioner) concluded Pesicka did not sustain any permanent disability as a result of the cumulative injury.
In July 1994, Pesicka filed a claim seeking review-reopening relief for her August 1987 injury. She also filed a claim alleging a new cumulative injury to her upper extremities and her back, including her neck and shoulder. On August 7, 1995, Pesicka suffered a left elbow injury. She had surgery on November 13, 1995. In 1996, she filed a claim alleging a cumulative injury to her left upper extremity caused by her elbow injury.
The commissioner determined that (1) Pesicka did not prove a change in her condition since the original award for her August 1987 injury to warrant review-reopening relief, (2) Pesicka did not establish an aggravation of the preexisting condition in her upper extremities, back, neck, and shoulder, and (3) Pesicka was not entitled to additional permanent partial disability benefits for her left elbow injury. The commissioner also awarded some penalty benefits, but not for a delay in awarding temporary benefits for one work shift just prior to Pesicka's elbow surgery for which she had requested vacation time. The commissioner refused to award temporary disability benefits for a period after her elbow surgery during which she did not work overtime.
Pesicka sought judicial review of the commissioner's decision. The district court affirmed in part, reversed in part, and remanded to the commissioner for the calculation of certain penalty benefits. The district court determined that there was substantial evidence supporting the agency's determination that (1) Pesicka was not entitled to temporary partial disability benefits for a period of time she did not work overtime after her elbow surgery, (2) Pesicka suffered a two percent impairment to her elbow, (3) there was no separate cumulative injury after June 8, 1992, which included the injury to her left elbow, (4) Pesicka did not sustain an industrial disability, and (5) review-reopening relief should be denied. The court also determined (1) a penalty was not appropriate for the delay in paying benefits for the shift Pesicka took off just prior to her elbow surgery, and (2) the commissioner did not err in failing to consider the application of the United States rule regarding late payments to the appropriate penalty. Pesicka appeals.
II. SCOPE AND STANDARD OF REVIEW.
The standard by which we review decisions of administrative agencies is well-settled. We review an agency's decision for errors of law and do not exercise a de novo review. Kostelac v. Feldman's, Inc., 497 N.W.2d 853, 856 (Iowa 1993). When we review findings of the workers' compensation commissioner, those findings carry the effect of a jury verdict. Id. We will reverse an agency's findings only if, after reviewing the record as a whole, we determine that substantial evidence does not support them. Terwilliger v. Snap-On Tools Corp., 529 N.W.2d 267, 271 (Iowa 1995). Evidence is substantial if a reasonable mind would accept it as adequate to reach the conclusion at issue. Kostelac, 497 N.W.2d at 856. The mere fact that we could draw inconsistent conclusions from the same evidence does not mean that substantial evidence does not support the commissioner's determination. Id. The ultimate question is not whether the evidence supports a different finding but whether it supports the findings the commissioner actually made. Terwilliger, 529 N.W.2d at 271.
III. OVERTIME FOLLOWING PESICKA'S ELBOW SURGERY.
Pesicka argues that the district court erred in failing to award Pesicka additional temporary partial benefits for the overtime following her elbow surgery that she did not work. She contends that because she worked overtime in the three and a half months prior to her elbow injury on August 7, 1995, her compensation award following the surgery should have been based on overtime. She maintains that she did not return to employment that was substantially similar to the employment that she was engaged in at the time of her injury, because prior to her injury she worked overtime.
Iowa Code section 85.33(2) provides that a worker who is temporarily partially disabled is entitled to temporary partial benefits when
it is medically indicated that the employee is not capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, but is able to perform other work consistent with the employee's disability.
Prior to Pesicka's elbow injury on August 7, 1995, she worked some overtime. Pesicka had surgery on her elbow on November 13, 1995. She returned to work on December 12, 1995. However, she was not permitted to work overtime until March 10, 1996 by Snap-On due to Dr. Crane temporarily restricting her activities. Pesicka testified that overtime was available to her during the several months at issue, although she did not specify the hours available. Lee Gunderson, the human resources manager at Snap-On, testified that plant production was slower during the time at issue and they had actually laid people off. He testified that there likely was no overtime available to Pesicka during that time.
We conclude there is substantial evidence in the record to support the agency decision that Pesicka was not entitled to compensation based on overtime after her surgery. We affirm the trial court on this issue.
IV. PENALTY BENEFITS.
Pesicka contends that she should have been awarded certain penalty benefits.
A. Law governing penalty benefits. An employee is entitled to penalty benefits under certain circumstances:
If a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award benefits in addition to those benefits payable under this chapter, or chapter 85, 85A, or 85B, up to fifty percent of the amount of benefits that were unreasonably delayed or denied.
Iowa Code § 86.13. If the employer has a reason for the delay and conveys that reason to the employee contemporaneously with the beginning of the delay, no penalty will be imposed if the reason is of such character that a reasonable fact finder could conclude that it is a "reasonable or probable cause or excuse" under section 86.13. Meyers v. Holiday Express Corp., 557 N.W.2d 502, 504 (Iowa 1997). If no reason is given for the delay or if the "reason" is not one that a reasonable fact finder could accept, we will hold that no such cause or excuse exists and remand to the commissioner for the sole purpose of assessing penalties under section 86.13. Id. at 505. Reasonable causes or excuses include a delay for the employer to investigate the claim, or the employer had a reasonable basis to contest the claim — the "fairly debatable" basis for delay. Id. For the purpose of applying section 86.13, the benefits that are under paid as well as late-paid benefits are subject to penalties, unless the employer establishes reasonable and probable cause or excuse. Id. An employer's bare assertion that a claim is "fairly debatable" does not make it so. Id. The employer must assert facts upon which the commissioner could reasonably find that the claim was "fairly debatable." Id. B. Elbow surgery. Pesicka requests penalty benefits for the shift she did not work prior to her elbow surgery. She argues that Snap-On failed to present evidence that it investigated and evaluated any potential compensation claims and to convey to her contemporaneously with the beginning of the delay any reason for not paying such a claim or to make payment. Snap-On does not dispute whether temporary disability benefits for the date at issue were owed. Instead, it contends the commissioner correctly found that liability for that date was fairly debatable.
We conclude substantial evidence supports the commissioner's finding that liability for the shift from 11 p.m. to 7 a.m. on November 12-13 was fairly debatable. The shift was prior to her surgery. She took the shift off as a vacation day and without discussing it with anyone at Snap-On. She did not request Snap-On pay for the shift as a compensable benefit at the time. Additionally, when she requested family medical leave for her surgery, she requested benefits beginning November 14, the day following her surgery. We affirm on this issue.
C. Application of the United States rule. Pesicka argues that the trial court erred in failing to require a penalty be imposed against Snap-On for the compensation payment delay resulting from application of the United States rule, which provides that payments be applied first to interest and then to principal. She contends the agency neglected to consider this delay or impose a penalty for it and the trial court erred by not remanding for the agency to do so.
Pesicka requests penalty benefits for underpayments based on the application of the United States rule to payments made for the pay periods September 24, 1992 through October 11, 1992 and November 13, 1995 through December 11, 1995. The agency awarded penalty benefits for the late payments and underpayments made for the pay periods noted above, except for those pay periods ending December 4 and 11, 1995. It awarded penalties of fifteen percent for late payments and fifty percent for underpayments. On judicial review, the district court reversed in part and ordered "penalties in the amount of fifty (50) percent . . . against Snap-On and Royal for any and all delays in payment which occurred in these cases. . . ." The district court also reversed the part of the agency decision that denied penalty benefits for the November 27, 1995 through December 11, 1995 pay periods and ordered penalty benefits for those periods, concluding the agency erred in finding Pesicka had not proved payments of benefits for those pay periods were made late. The district court declined, however, to order additional penalty benefits resulting from application of the United States rule.
When payments to which Pesicka was entitled were delayed Pesicka became entitled to interest on the delayed payments. But when Snap-On or its insurer ultimately made the payments application of the United States rule resulted in the payments being applied first to interest, then to outstanding principal, rather than being applied only to principal. This left a portion of the principal unpaid. As a result Pesicka became entitled to a penalty benefit on the amount of principal that remained outstanding. See Meyers, 557 N.W.2d at 507 (remanding to the commissioner to determine "what underpayments resulted from the application of the United States rule" and to assess "interest under Iowa Code section 85.30 and penalties under section 86.13."). Accordingly, we reverse the district court on this issue and remand to the commissioner for application of the United States rule to the payments in question and for reassessment of penalty benefits in light of that rule.
V. IMPAIRMENT RATING.
Pesicka argues that the trial court erred by holding that the lack of objective proof of her subjective impairment constituted substantial evidence upon which to affirm an award based upon an impairment rating alone. She contends that Dr. Crane did not attempt to rate loss of pain-free function, or endurance, and thus his non-rating of this loss was not persuasive of anything, other than his inability to measure subjective loss. She asserts the agency's failure to quantify the subjective impairments to her elbow, including clicking, stiffness, weakness, numbness, tingling, and swelling, and the resulting pain reduction of function cannot be supported by substantial evidence because there was no objective or other evidence which was inconsistent with these subjective impairments and no other discrediting of Pesicka's evidence proving their existence.
The commissioner must consider all evidence, both medical and nonmedical, in determining an impairment rating. Christensen v. Snap-On Tools Corp., 554 N.W.2d 254, 257 (Iowa 1996). Where the commissioner has recognized and written about a claimant's condition and deficiencies, the evidence is sufficient to support a reasonable conclusion reached. Robbennolt v. Snap-On Tools Corp., 555 N.W.2d 229, 234 (Iowa 1996).
In a letter dated April 2, 1996, Dr. Crane opined that Pesicka had a two percent disability of the upper extremity due to the injury to her elbow. On October 11, 1996, Dr. Crane wrote that
[Pesicka] has had nearly full recovery. I do not see any function that has been permanently altered. . . . [U]nder the management systems, [she] has no permanent partial impairment. It is difficult to measure pain, and she has no evidence of any type of neurologic dysfunction.
In the agency decision, the commissioner noted that Pesicka claimed her symptoms were pretty bad, and had progressively worsened since the arbitration hearing in 1991. The commissioner noted that her complaints during the arbitration hearing were not insignificant, and the commissioner outlined those complaints. The commissioner considered the pain experienced by Pesicka in determining her impairment rating. We conclude Dr. Crane's most recent opinion of no functional impairment, together with Pesicka's subjective complaints, constitute substantial evidence to support the two percent impairment rating.
VI. CUMULATIVE INJURY.
Pesicka contends that the trial court erred by holding that it was logical to decide that subsequent cumulative traumata, identical to antecedent and contemporaneous cumulative traumata found to have caused work injury, did not cause work injury.
Under a cumulative injury analysis, a compensable injury occurs when pain prevents the employee from continuing to work. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985). The injury must arise out of and in the course of one's employment to be compensable. Iowa Code § 85.20.
Dr. Crane stated that Pesicka's current problems had not changed significantly since the 1980s, and are most likely stemming from her original injury of August 31, 1987. Pesicka testified that although doctors had previously wished to impose restrictions on her, she chose not to have them. She agreed during the 1997 hearing that all the evidence involving restrictions could have been presented at the 1991 hearing. Doctors have continually told her that she will continue to have pain and physical problems so long as she works at Snap-On. We conclude there is substantial evidence in the record supporting the agency decision that she has not suffered a new cumulative injury to her upper extremities and back, including neck and shoulders.
VII. LOSS OF EARNING CAPACITY.
Pesicka argues the trial court erred by holding that it was logical to decide that a permanently-restricted, accommodated manual laborer, who had undergone surgeries for her work-related overuse syndromes, had sustained a zero percent loss of earning capacity.
Industrial disability measures an injured worker's lost earning capacity. Quaker Oats Co. v. Ciha, 552 N.W.2d 143, 157 (Iowa 1996). Factors that should be considered include the employee's functional disability, age, education, qualifications, experience, and ability to engage in employment for which he is fitted. Second Injury Fund v. Shank, 516 N.W.2d 808, 813 (Iowa 1994). "Thus, the focus is not solely on what the worker can and cannot do; the focus is on the ability of the worker to be gainfully employed." Second Injury Fund v. Nelson, 544 N.W.2d 258, 266 (Iowa 1996).
Pesicka is able to be gainfully employed as a painter at Snap-On. She is working full-time and working overtime hours, and is earning more money than ever before. She does her job without accommodations by her employer. Dr. Crane opined she will continue to be able to work in her current job. We conclude the agency decision that she has not suffered any loss in her earning capacity is supported by substantial evidence.
VIII. REVIEW-REOPENING.
Pesicka contends the trial court erred by holding that review-reopening relief can be granted only for a change of condition not contemplated in the original decision and that no change occurred.
Review-reopening proceedings are governed by section 86.14(2), which states as follows:
In a proceeding to reopen an award for payments or agreement for settlement as provided by section 86.13, inquiry shall be into whether or not the condition of the employee warrants an end to, diminishment of, or increase of compensation so awarded or agreed upon.
Section 86.14(2) thus establishes a procedure for determining whether a change in the employee's employment condition warrants an increase in compensation benefits previously awarded. Simonson v. Snap-On Tools Corp., 588 N.W.2d 430, 434 (Iowa 1999). To justify an increase in compensation benefits,
[t]he claimant carries the burden of establishing by a preponderance of the evidence that, subsequent to the date of the award under review, he or she has suffered an impairment or lessening of earning capacity proximately caused by the original injury.E.N.T. Assocs. v. Collentine, 525 N.W.2d 827, 829 (Iowa 1994). A necessary showing in a review-reopening procedure, i.e., lessening of earning capacity, may be made without proof of change in physical condition. Simonson, 588 N.W.2d at 435. Compensation may be increased when an increase in industrial disability results from a failure of a diagnosed physical condition to improve to the extent anticipated. Id.
We conclude substantial evidence supports the agency's decision finding that no change in circumstances warrants review-reopening relief. Pesicka points to an increase in pain and restrictions imposed on her work. However, she regularly works overtime. She testified that she is earning more money than she ever has in the past. During the 1991 hearing, she testified that she expected to work seven to ten more years at the most. Dr. Crane believes that her current problems have not changed significantly from the 1980s. As noted previously, doctors for some time suggested placing restrictions on her work activities, but she has declined. She has been told by doctors that her choices are to quit her job at Snap-On, make modifications, or tolerate pain that may result from her work. We affirm on this issue.
IX. DISPOSITION.
We reverse the part of the district court's ruling that holds Pesicka is not entitled to additional penalty benefits based on application of the United States rule, and remand to the commissioner for application of the United States rule to the payments made for the periods of September 24, 1992 through October 11, 1992 and November 13, 1995 through December 11, 1995 and reassessment of penalty benefits in light of that rule. In all other respects we affirm the district court's ruling. Costs on appeal are assessed seventy-five percent to appellant Pesicka and twenty-five percent to appellees.