Opinion
No. 2-504 / 01-1928
Filed October 16, 2002
Appeal from the Iowa District Court for Polk County, Douglas Staskal, Judge.
Petitioner appeals from the district court's judicial review ruling which found claimant to be permanently and totally disabled. AFFIRMED.
Patrick Smith of Huber, Book, Cortese, Happe Brown, P.L.C., Des Moines, for appellant.
David Drake of Lawyer, Lawyer, Dutton Drake, L.L.P., West Des Moines, for appellee.
Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
Appellants Rathbun Regional Water Association and CNA Insurance (Rathbun) claim the district court erred in upholding the decision of the Iowa Workers' Compensation Commissioner to grant Jesse Hardin a permanent total disability award. After reviewing the record and considering the arguments presented, we affirm the district court.
I. Background Facts and Proceedings.
Claimant was a forty-seven-year-old high school graduate at the time of his arbitration hearing. He has completed some college including the Waste Water Treatment program at Kirkwood Community College. His employment history includes working as a dispatcher, truck driver, laborer, farmer, and operator of a nightclub.
In 1988, Rathbun hired Hardin as a plant operator. His primary duties included treating water and monitoring plant operations, which included a great deal of walking and stair climbing. Other duties included lab work, lifting bags of chemicals, shifting barrels of chemicals, and performing general maintenance and cleaning.
Hardin injured his back lifting a bag of dog food at home in 1994. Surgery resolved the issue successfully and he returned to work unrestricted five weeks later. On August 7, 1995, Hardin herniated a disc in his back while lifting a forty-eight pound box at work. Later that same month Hardin had surgery on his lower back to resolve the injury.
Hardin did not make a complete recovery following the August 1995 surgery. He has received continuous medical treatment for the condition since the work related injury. Virtually all of his physicians agree that he suffers from chronic pain and failed low back syndrome. He returned to work for short periods in the ensuing years and was accommodated by Rathbun during those stints. In June 1999, Hardin quit his job on the advice of Dr. Hines and Dr. Leth.
Hearing on Hardin's claim for benefits was held before a deputy workers' compensation commissioner in June 2000. The deputy granted Hardin a permanent total disability award. Rathbun appealed and Chief Deputy Workers' Compensation Commissioner Patricia Lantz affirmed the decision. Rathbun then petitioned for judicial review before the district court and the decision was upheld.
II. Scope of Review.
On appeal from judicial review of agency proceedings under Iowa Code chapter 17A (2001), our scope of review is for errors of law. Herrera v. IBP, Inc., 633 N.W.2d 284, 286-87 (Iowa 2001). We determine whether the district court correctly applied the law in exercising its section 17A.19(8) judicial review function. Gilbert v. USF Holland, Inc., 637 N.W.2d 194, 198 (Iowa 2001). Section 17A.19(10) provides the grounds for reversal of agency action. Importantly, an agency's decision must be supported by substantial evidence and unaffected by any error of law. See Iowa Code § 17A.19(10). Evidence is substantial if a reasonable mind would accept it as adequate to reach a conclusion. Dunlavey v. Economy Fire Cas. Co., 526 N.W.2d 845, 849 (Iowa 1995). We give deference to an agency's interpretation of statutes governing its area of expertise, however, its interpretations of law are not conclusive. Darrow v. Quaker Oats Co., 570 N.W.2d 649, 651 (Iowa 1997); Hanigan v. Hedstrom Concrete Prod., Inc., 524 N.W.2d 158, 160 (Iowa 1994).
III. Discussion.
Rathbun's argument on appeal is twofold. First, Rathbun contends the permanent total disability award cannot stand because claimant did not offer evidence of an unsuccessful job search or evidence that such a search would be futile. Rathbun also asserts that the opinion of Dr. Hines alone is insufficient evidence that Hardin cannot compete in the labor market. We find no merit in either argument. The record reveals substantial evidence that Hardin is permanently and totally disabled.
The purpose of awarding benefits for industrial disability is to replace the reduction in the claimant's earning capacity. Quaker Oats Co. v. Ciha, 552 N.W.2d 143, 157 (Iowa 1996). Our supreme court has defined and described the factors and circumstances giving rise to a permanent and total disability.
Industrial disability means reduced earning capacity. Bodily impairment is merely one factor in gauging industrial disability. Other factors include the worker's age, intelligence, education, qualifications, experience, and the effect of the injury on the worker's ability to obtain suitable work. When the combination of factors precludes the worker from obtaining regular employment to earn a living, the worker with only a partial functional disability has a total industrial disability.
. . . .
The question is more than . . . what the evidence shows [the employee] "can or cannot do." The question is the extent to which the injury reduced [the employee's] earning capacity. This inquiry cannot be answered merely by exploring the limitations on his ability to perform physical activity associated with employment. It requires consideration of all of the factors that bear on his actual employability.
Guyton v. Irving Jensen Co., 373 N.W.2d 101, 103, 104 (Iowa 1985) (citations omitted). A total disability is not a state of absolute helplessness. IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 633 (Iowa 2000). A permanent and total disability "occurs when the injury wholly disables the employee from performing work that the employee's experience, training, intelligence, and physical capacities would otherwise permit the employee to perform." Id. (citation omitted). A claimant's functional impairment is but one consideration in determining the industrial disability. Diederich v. Tri-City Ry. Co., 219 Iowa 587, 594, 258 N.W. 899, 902 (1935).
Rathbun contends the permanent and total disability award requires a showing that Hardin made a good faith but unsuccessful effort to obtain employment, or, in the alternative, that such a search would have been futile. Rathbun's reasoning follows our jurisdiction's line of cases where a claimant seeks a permanent and total disability under the odd-lot doctrine. See, e.g., Second Injury Fund v. Nelson, 544 N.W.2d 258, 267 (Iowa 1995); Guyton, 373 N.W.2d at 103. In Nelson, the court found that, under the odd-lot doctrine, proof of an unsuccessful job search is not an absolute prerequisite if the employee introduces other substantial evidence that he has no reasonable prospect of steady employment. Nelson, 544 N.W.2d at 267.
Review of the record reveals that Hardin has not sought other employment since he left his job at Rathbun. This fact does not defeat his claim because Hardin established with substantial evidence that such a search would be futile. The deputy commissioner found that, based on the pertinent factors, Hardin could not compete in the labor market. Dr. Hines, the treating physician, opined that Hardin could not engage in any type of competitive employment. Furthermore, Hardin's testimony substantiated Dr. Hines's uncontraverted medical opinion. The deputy commissioner specifically found Dr. Hines's opinion to be credible. The opinion of Dr. Hines and the corroborating testimony of Hardin establish with substantial evidence that he has no reasonable prospect of steady employment.
Rathbun contends the opinion of Dr. Hines alone is not sufficient evidence to establish Hardin is not capable of engaging in competitive employment. The problem with this assertion is that the commissioner did not rely solely on the opinion of Dr. Hines. The commissioner relied upon Hardin's testimony, his work experience, his limited education, his age, and the opinions of Dr. Hines and Dr. Nelson. Dr. Nelson evaluated Hardin and determined that he had a functional impairment of fifteen percent compared to the nineteen percent impairment rating of Dr. Hines. The evaluation further revealed Hardin could only occasionally lift twenty pounds. A neurologist's diagnosis of sustained chronic pain syndrome further supports the industrial disability determination. Review of the record indicates there was a plethora of evidence for the commissioner to rely upon.
Despite the existence of evidence supporting a finding of permanent and total disability, Rathbun maintains the evidence is simply not sufficient. Rathbun argues that because Hardin participates in flea markets twice monthly, he is capable of employment. Rathbun attempts to further its argument with the reports of a psychologist and physical therapist. The physical therapist suggests Hardin has exaggerated his symptoms and given a minimal effort towards recovery while the psychologist opines that Hardin is motivated by psychological and personality factors unrelated to the injury.
Rathbun overlooks that even if the record could support a different conclusion, given the limited nature of judicial review, we must affirm the agency's decision if it is supported by substantial evidence. Second Injury Fund v. Klebs, 539 N.W.2d 178, 179-80 (Iowa 1995). Evidence is substantial if a reasonable person would consider it sufficient to support the agency's conclusions. Id. Given the opinions of Dr. Hines and Dr. Nelson in conjunction with the age, functional impairment, work experience, and limited education of Hardin, a reasonable person could find that Hardin is permanently and totally disabled. Like the district court, we find substantial evidence in the record to support the commissioner's findings and affirm.