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Simmering v. Kirkwood Community College

Court of Appeals of Iowa
Oct 26, 2005
707 N.W.2d 337 (Iowa Ct. App. 2005)

Opinion

No. 5-646 / 04-2071

Filed October 26, 2005

Appeal from the Iowa District Court for Linn County, Denver D. Dillard, Judge.

A claimant appeals from a district court ruling that upheld a decision of the workers' compensation commissioner denying the claimant certain benefits and medical expenses. AFFIRMED.

Thomas M. Wertz and Matthew D. Dake of Wertz Law Firm, Cedar Rapids, for appellant.

Joseph A. Quinn of Nyemaster, Goode, West, Hansell O'Brien, P.C., Des Moines, for appellees.

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


Edward Simmering appeals from a district court ruling that upheld a decision by the workers' compensation commissioner denying Simmering certain benefits and medical expenses. Simmering challenges the agency's determination that a work-related injury did not aggravate his preexisting, degenerative condition. We affirm the district court.

I. Background Facts and Proceedings.

At the times relevant to this appeal, Simmering was employed by Kirkwood Community College (Kirkwood) as a Service Writer/Parts Person in the school's automotive technology department. Simmering suffered from degenerative osteoarthristis of the knees, a preexisting condition unrelated to his employment. Simmering's treating physician, Dr. Edward Durkee, recommended that Simmering undergo a tibial osteotomy on each leg. The goal of the surgeries was to shift the weight bearing on Simmering's knees from the inside to the outside of the knees, thereby reducing Simmering's pain and hopefully extending the time until total knee replacements would be required.

Simmering underwent a tibial osteotomy on his right leg in 1997. The surgery was successful. The osteotomy site filled with bone and Simmering had a successful recovery.

Simmering underwent a tibial osteotomy on his left leg in 1998. Although the left-side osteotomy site showed some minimal healing, it did not heal completely. The site began to fill in with fibrous scar tissue, and Simmering continued to use a cane to assist in ambulation. He was still using a cane on February 15, 2000, when he fell at work. Simmering was carrying a box while descending a flight of stairs, and misstepped with his left leg.

Simmering sought care at a local hospital later that day. X-rays taken after the fall were all read to be normal. However, Simmering's treating physician, Dr. Edward Durkee, believed the x-rays showed "what appears to be [a] fracture through what healing there was present" in the osteotomy site, and that it appeared there "is now going to be a nonunion" of the site. Dr. Durkee recommended a "take down" of the left-side osteotomy site, which involved surgical removal of the scar tissue and use of a bone graft to fill in the site. The take down surgery was performed in May 2000. The osteotomy site did not heal, and Simmering continued to suffer a nonunion of the site.

Simmering filed a claim for worker's compensation benefits. During the arbitration hearing the deputy workers' compensation commissioner was presented with the opinions of both Dr. Durkee and Kirkwood's medical expert, Dr. Joshua Kimelman. Dr. Durkee opined that the February 15 fall was "a substantial contributing factor and an aggravation to" Simmering's preexisting condition in his left knee. In contrast, Dr. Kimelman opined that Simmering had suffered a nonunion of the left-leg osteotomy site long before the February fall, and that nothing which occurred on February 15 contributed to the need for surgery or was the cause of any permanent impairment or disability.

The deputy workers' compensation commissioner determined Simmering had suffered a work-related injury on February 15, 2000, that arose out of and in the course of his employment with Kirkwood, and that the work-related injury aggravated the preexisting degenerative condition in Simmering's left knee. The deputy awarded Simmering healing period benefits, but denied his claim for permanent partial disability benefits and penalty benefits. The deputy further ordered Kirkwood to pay Simmering's medical expenses and any future medical expenses "necessitated by the work injury." Following rehearing the deputy ruled that such future medical expenses would include any total knee replacement on Simmering's left knee.

The arbitration and rehearing decisions contain other findings and conclusions that are not relevant to the issues on appeal.

Simmering appealed and Kirkwood cross-appealed from the deputy's decision. In his appeal decision the worker's compensation commissioner determined Simmering did suffer a work-related injury on February 15, but that Simmering failed to establish this injury "produced a substantial or material aggravation of his preexisting left knee condition." In reaching this determination the commissioner placed greater weight on the testimony of Dr. Kimelman than on that of Dr. Durkee. The agency accordingly awarded Simmering medical expenses related to his February 15 hospital visit, and denied all other claims for compensation.

Simmering filed a petition for judicial review with the district court. He challenged the agency's determination that the work-related injury had not aggravated his preexisting condition. He asserted the agency had applied an incorrect legal standard in making the determination, and further that the determination was unsupported by substantial evidence. The district court upheld the agency's decision. Simmering filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2), noting Kirkwood admitted that the February 15 fall had caused a fracture through Simmering's left-leg osteotomy site, and asserting that this was itself a material aggravation of the preexisting condition, and thus the agency's decision could not be supported by substantial evidence. The court denied the motion.

Simmering appeals. He again contends the agency applied an incorrect legal standard in assessing whether the work-related injury aggravated his preexisting condition. He also asserts the agency failed to properly consider Kirkwood's admission that the February 15 fall caused a fracture through the left-leg osteotomy site.

II. Scope and Standards of Review.

Iowa Code chapter 17A governs judicial review of decisions made by the workers' compensation commissioner. Iowa Code § 86.26 (2001). The district court acts in an appellate capacity to correct errors of law on the part of the agency. Grundmeyer v. Weyerhauser Co., 649 N.W.2d 744, 748 (Iowa 2002). On appeal we apply the standards of Iowa Code section 17A.19(10) to determine whether our conclusions are the same as those of the district court. P.D.S.I. v. Peterson, 685 N.W.2d 627, 632 (Iowa 2004). If they are the same, we affirm; if not, we reverse. Id.

A party challenging agency action bears the burden of demonstrating the action's invalidity and resulting prejudice. Iowa Code § 17A.19(8)(a). This can be shown in a number of ways, including proof the action was legally erroneous; unsupported by substantial evidence in the record when that record is viewed as a whole; or otherwise unreasonable, arbitrary, capricious, or an abuse of discretion. See id. § 17A.19(10).

We are bound by the agency's findings of fact if they are "supported by substantial evidence in the record before the court when that record is viewed as a whole." Iowa Code § 17A.19(10)(f); P.D.S.I., 685 N.W.2d at 633. This requires that the entirety of the record — detracting as well as supporting relevant evidence — be sufficient to allow a neutral, detached, and reasonable person to make the same finding as the agency. See id. We will broadly and liberally apply the agency's findings to uphold rather than to defeat its decision. IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 632 (Iowa 2000).

III. Discussion.

A. Legal Standard.

We turn first to Simmering's claim that the agency applied an incorrect legal standard in assessing whether his work injury aggravated his preexisting condition. Simmering contends the agency erroneously ignored the following language, found in Ziegler v. U.S. Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1961):

It is, of course, well settled that when an employee is hired, the employer takes him subject to any active or dormant health impairments incurred prior to this employment. If his condition is more than slightly aggravated, this resultant condition is considered a personal injury within the Iowa law.

(Emphasis added). We cannot agree.

Both before and after its decision in Ziegler, our supreme court has repeatedly held that "if plaintiff was diseased and his condition was aggravated, accelerated, worsened or `lighted up' by the injury so it resulted in the disability found to exist plaintiff was entitled to recover." Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 761 (1956). It has not repeated the "slightly aggravated" language of Ziegler, but has approved, at least implicitly, the standard of "material" aggravation or acceleration. See P.D.S.I., 685 N.W.2d at 630; Second Injury Fund of Iowa v. Nelson, 544 N.W.2d 258, 263 (Iowa 1995); Yeager v. Firestone Tire Rubber Co., 253 Iowa 369, 375, 112 N.W.2d 299, 302 (1961). This is the same standard applied by the agency.

To the extent Simmering contends the agency erroneously required a "substantial" aggravation or acceleration, we note the commissioner used the terms "substantial" and "material" interchangeably, apparently treating them as synonymous terms. This is consistent with the plain and ordinary meanings of the words. See Webster's New Collegiate Dictionary 702-03 (material), 1153 (substantial) (1980); Webster's Collegiate Thesaurus 511 (material), 796 (substantial) (1976). Moreover, we note that "slight" is defined, in relevant part, as "lacking in . . . substance" or "deficient in . . . importance." Id. at 1084. Thus, we perceive little difference between the "more than slightly" language used in Ziegler, and the "substantial or material" language employed by the agency. Like the district court, we find no legal error in the agency decision.

B. Substantial Evidence.

We therefore turn to Simmering's contention that the agency failed to properly consider the following admission by Kirkwood: "[T]he work injury of February 15, 2000, caused a fracture through the proximal tibial osteotomy site" of the left knee. Simmering asserts that proper consideration of this fact requires rejection of Dr. Kimelman's opinion because Dr. Kimelman stated, in part, that he saw no substantial difference in x-rays taken before and after the February 15 fall, and that while Simmering " may have hurt his knee and may have in some way torqued or twisted or contused the nonunion site causing increased pain, I don't believe it substantially had any effect in keeping that bone from healing. . . ." (Emphasis added). Simmering appears to assert that, once Dr. Kimelman's opinion is rejected, the record no longer contains substantial evidence in support of the agency's decision. Once again, we cannot agree with Simmering's contentions.

Simmering contends Dr. Kimelman's opinion should be rejected on the additional ground that the law does not require "a `substantial' difference in Simmering's pre-existing condition." However, as Kirkwood points out, the application of the correct legal standard is a matter for the agency, in light of the factual conclusions provided by the medical experts.

Kirkwood made a limited factual admission — that the work-related fall caused a fracture through the osteotomy site. The effect of the fracture on Simmering's preexisting condition was a matter to be determined by the agency in light of the entire record, including the medical opinions. The agency gave detailed reasons as to why it found Dr. Kimelman's opinion was entitled to more weight than that of Dr. Durkee. Those reasons are valid, despite the apparent conflict between a limited portion of Dr. Kimelman's opinion and Kirkwood's admission of the left-leg fracture.

The agency noted Dr. Kimelman's opinion was more consistent with "contemporaneous notations regarding [Simmering's] overall left knee condition prior to February 15, 2000, and the expected prognosis for the condition when healing is not completed within one year." The agency also expressed concerns about Dr. Durkee's failure to remember the details of Simmering's last pre-fall office visit, "especially in light of the fact that Dr. Durkee relies significantly on [Simmering's] clinical picture as expressed in [the] fall [of] 1999 in opining that but for the February 15, 2000, work incident [Simmering] would not have required the May 1, 2000, second left tibial osteotomy."

Significantly, the focus of the agency's determination was the fact that both Dr. Durkee and Dr. Kimelman had opined substantial healing of the osteotomy site was likely to occur, if at all, within one year of surgery, and the fact that Simmering's site had not substantially healed in the more than one year between his 1998 surgery and the 2000 fall. The agency's decision turned, not upon whether the February 15, 2000 fall had caused a fracture through the minimal healing of the left-knee osteotomy site, but upon a determination that the nonunion of the site predated the February 15, 2000 fall, and thus that the May 1, 2000 surgery would have been required even if Simmering had not fallen at work. There is ample evidence in the record, even in light of Kirkwood's admission, to support these findings. The record contains substantial evidence to support the agency's determination that Simmering's work-related injury did not aggravate his preexisting condition.

AFFIRMED.


Summaries of

Simmering v. Kirkwood Community College

Court of Appeals of Iowa
Oct 26, 2005
707 N.W.2d 337 (Iowa Ct. App. 2005)
Case details for

Simmering v. Kirkwood Community College

Case Details

Full title:EDWARD SIMMERING, Appellant, v. KIRKWOOD COMMUNITY COLLEGE and INSURANCE…

Court:Court of Appeals of Iowa

Date published: Oct 26, 2005

Citations

707 N.W.2d 337 (Iowa Ct. App. 2005)