Opinion
No. 1-1013 / 00-2040.
Filed July 31, 2002.
Appeal from the Iowa District Court for Marion County, JERROLD W. JORDAN, Judge.
The employer and its workers' compensation insurance carrier appeal from the district court's ruling on judicial review affirming the workers' compensation commissioner's decision awarding benefits to a former employee. Thomas Hartney cross-appeals. AFFIRMED ON APPEAL AND CROSS-APPEAL.
William D. Scherle and Aaron T. Oliver of Hansen, McClintock Riley, Des Moines, for appellants.
Joe Walsh and Arthur C. Hedberg, Jr., Des Moines, for appellee Thomas Hartney.
Thomas J. Miller, Attorney General, and Greg Knoploh, Assistant Attorney General, for appellee Second Injury Fund of Iowa.
Heard by MAHAN, P.J., and ZIMMER and EISENHAUER, JJ.
Vermeer Manufacturing and St. Paul Fire Marine Insurance Company (collectively "petitioners") appeal from the district court's ruling on judicial review affirming the workers' compensation commissioner's decision awarding benefits to Vermeer's former employee Thomas Hartney. The petitioners claim the record lacks substantial evidence supporting the commissioner's determination that Hartney's right and left arm injuries were simultaneous rather than successive injuries that would trigger Second Injury Fund liability. They contend the commissioner erred in awarding penalty benefits for the improper termination of healing period benefits and the failure to pay permanent partial disability benefits as required when other disability benefits were paid. Hartney cross-appeals, claiming the commissioner improperly allowed penalty benefits to be reduced by a credit for other disability benefits paid. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
Vermeer employed Hartney as a welder beginning in September 1993 until he was terminated. Hartney's job involved repetitive motions. While working for Vermeer, Hartney began experiencing pain in his left extremities, and he sought treatment in September 1995. His medical records note that he complained of "bilateral wrist pain, left greater than right," at his visit to Dr. Richard Posthuma on September 20, 1995. The doctor wrote, "He has positive Finkelstein's test bilaterally." He further noted "De quervain's tenosynovitis, left greater than right." Subsequent medical treatment notes also indicated problems bilaterally.
On June 28, 1996, Dr. Teri Formanek performed surgery on both of Hartney's wrists. This is the first date that Hartney missed work due to his injuries. Hartney was subsequently released to return to light duty work for Vermeer. His problems continued, and he has had additional surgeries. Dr. Formanek saw Hartney for a final follow-up on October 6, 1998, and he determined that Hartney reached maximum medical improvement from all the conditions in both of his upper extremities. Dr. Formanek assigned Hartney a fifteen-percent impairment for each upper extremity and an eighteen-percent whole person impairment.
Hartney filed claims for workers' compensation benefits regarding his injuries to his arms. The deputy workers' compensation commissioner concluded that Hartney suffered a bilateral, simultaneous injury to each wrist/upper extremity manifesting itself on June 28, 1996. The deputy commissioner also awarded Hartney penalty benefits for the petitioners' failure to pay healing period and permanent partial disability payments. The petitioners appealed, and the worker's compensation commissioner concluded that the right and left arm injuries were simultaneous and were not successive injuries for triggering Second Injury Fund liability. The commissioner found that Hartney's healing period benefits were improperly cut off and that only two weeks of 37.5 weeks of permanent partial disability benefits were paid. The commissioner determined the petitioners should pay penalty benefits of fifty percent based on the difference or underpayment between the benefits paid under Iowa Code section 85.38(2) (1997) less any tax deductions from those payments and the weekly benefit amount.
The petitioners filed a petition for judicial review challenging the commissioner's decision. They alleged the commissioner erred as a matter of law in awarding Hartney permanent total disability benefits under section 85.34(5). Hartney filed a separate petition for judicial review challenging the same decision. He filed a petition (1) to preserve his claim against the Second Injury Fund in the event the trial court determined the injuries were separate, and (2) requesting the trial court reverse and remand the agency's decision with respect to the credit for disability benefits against the penalty.
On November 17, 2000, the district court entered a ruling affirming the commissioner's decision. The district court concluded there was substantial evidence supporting the commissioner's determination that Hartney suffered simultaneous right and left arm injuries. It found the agency used the proper test in determining the manifestation date of Hartney's injury, and that substantial evidence supported the agency's calculation of that date. The court further upheld the commissioner's penalty award determining that a penalty could be awarded for the improper termination of benefits even though other disability benefits had been paid. The court concluded that the commissioner had the discretion to set the amount of the penalty. The petitioners appeal, and Hartney cross-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. SIMULTANEOUS INJURIES.
The petitioners contend that the agency erred in determining Hartney's injuries occurred simultaneously instead of separately and in evaluating the manifestation date of the cumulative trauma. They argue the agency failed to consider all relevant factors in determining the manifestation date of his injury. They also maintain the agency decision is not supported by substantial evidence.
Iowa Code section 85.64 apportions liability for an industrial disability caused by two successive injuries between the employer and the Second Injury Fund in certain situations. Second Injury Fund of Iowa v. Nelson, 544 N.W.2d 258, 269 (Iowa 1996). The Fund is responsible only for the difference between the compensation for which the current employer is liable and the total amount of industrial disability from which the employee suffers, reduced by the compensable value of the first injury. Id. Section 85.64 applies when
(1) the employee has either lost, or lost the use of a hand, arm, foot, leg, or eye; (2) the employee sustained the loss, or loss of use of another such member or organ through a work related-that is, compensable-injury; and (3) there must be some permanent disability from the injuries.
Second Injury Fund of Iowa v. Shank, 516 N.W.2d 808, 812 (Iowa 1994).
Our supreme court adopted the "cumulative injury rule" in McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). Pursuant to that rule, liability may exist for disability that gradually develops over a period of time. George A. Hormel Co. v. Jordan, 569 N.W.2d 148, 151 (Iowa 1997). In Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824 (Iowa 1992), our supreme court adopted the manifestation test, fixing the date of injury "as of the time at which the `disability manifests itself.'" Tasler, 483 N.W.2d at 829 (quotation omitted). The court held that an injury manifests itself when both the fact and causal relationship of the injury to employment would have become plainly apparent to a reasonable person. Id. A cumulative injury is manifested when the claimant, as a reasonable person, would be plainly aware (1) that he or she suffers from a condition or injury, and (2) that this condition or injury was caused by the claimant's employment. Herrera v. IBP, Inc., 633 N.W.2d 284, 288 (Iowa 2001). Upon the occurrence of these two circumstances, the injury is deemed to have occurred. Id.
We must determine, then, whether substantial evidence supports the agency finding that Hartney suffered one simultaneous injury and that the manifestation date of his cumulative injury was June 28, 1996. If it is determined that Hartney suffered two successive injuries, then the Second Injury Fund would be responsible for the injury to his left wrist, and the petitioners would only be responsible for the injury to his right wrist.
We conclude that substantial evidence supports the agency's finding that the injuries to Hartney's wrists were simultaneous. At Hartney's first visit to Dr. Posthuma on September 20, 1995, he complained of "bilateral wrist pain, left greater than right for quite some time." He was diagnosed with "de Quervain's tenosynovitis, left greater than right." The doctor treated his left wrist at that point, but not his right wrist. On April 29, 1996, Hartney complained of "medial epicondyle pain in both areas, numbness and tingling in the hands right worse than left." Dr. Posthuma diagnosed him with bilateral medial epicondylitis. On May 31, 1996, Hartney complained of problems with both upper extremities. On June 28, 1996, Hartney underwent surgery on both wrists. It was his first missed day of work for either the left or right wrist injuries. This constitutes substantial evidence that Hartney suffered a bilateral, simultaneous injury to each wrist/upper extremity.
The petitioners contend that Hartney satisfied his burden of proving that the left side injury manifested itself on September 20, 1995, but that the right side injury manifested itself later. Even if the left side injury was manifested on September 20, 1995, the right side injury also manifested itself on that date. Hartney complained of pain on both sides at that time, although only his left side was treated.
Next, we consider the petitioners' argument that the agency failed to consider all relevant factors from the Tasler manifestation test. "[T]he Commissioner is entitled to consider a multitude of factors [in determining the date of manifestation] such as absence from work because of inability to perform, the point at which medical care is received, or others, none of which is necessarily dispositive." Tasler, 483 N.W.2d at 830. "The Commissioner is entitled to a substantial amount of latitude in making a determination regarding the date of manifestation since this is an inherently fact-based determination." Id. at 829. In reviewing the agency decision, and giving the commissioner the appropriate deference, we conclude the agency considered proper factors under Tasler in determining the manifestation date.
We have considered all arguments raised by the petitioners as regards the date of simultaneous injury, and we find them without merit. We affirm the agency and trial court on this issue.
IV. PENALTY BENEFITS.
The petitioners contend the trial court erred in affirming the commissioner's award of penalty benefits. They argue it was improper to award penalty benefits. They maintain there was no unreasonable delay or denial of benefits. They note Hartney received continuous benefits from the time he began missing work until the hearing. These benefits included healing period, temporary partial disability, permanent partial disability, short-term disability, and long-term disability. They argue is it inconsistent with the intent of section 86.13 to require them to duplicate payments to Hartney by paying both workers' compensation and disability benefits at the same time.
Section 86.13 provides as follows:
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.
An employee is entitled to penalty benefits if payments have been delayed unless an employer proves a reasonable cause or excuse. Christensen v. Snap-On Tools Corp., 554 N.W.2d 254, 260 (Iowa 1996). A reasonable cause or excuse exists if (1) the delay was necessary for the insurer to investigate the claim, or (2) the employer had a reasonable basis to contest the employee's entitlement to benefits. Id.
There appears to be no dispute that certain benefits due Hartney were delayed. While it is true he received some benefits, the petitioners did not pay all benefits that they owed him in a timely manner. The commissioner noted that no evidence was presented showing that the delay was the result of an investigation of the claim or that there was any reasonable basis to contest Hartney's entitlement to benefits. It does not matter that Hartney was paid some benefits from short-term and long-term disability plans. The petitioners were to pay workers' compensation benefits in a timely manner. We affirm the agency and trial court on this issue.
V. CREDIT AGAINST PENALTY BENEFITS.
On cross-appeal, Hartney contends that the agency abused its discretion in ordering the petitioners to pay a penalty of fifty percent of the difference or underpayment between the benefits paid under section 85.38(2), less any tax deductions from these payments, and the weekly benefit amount of $323.66.
We conclude that the agency did not abuse its discretion in allowing the petitioners a credit for the difference between the benefits paid under section 85.38(2) and the weekly benefit amount. They should only pay a penalty pursuant to section 86.13 for the delayed payments they were required to make. They were only required to make payments on the difference between the weekly benefit amount and the benefits under section 85.38(2). Thus, they should only pay a penalty on that difference, and they should not be required to pay a penalty for amounts paid from another source pursuant to section 85.38(2). We affirm the agency and trial court on this issue.
VI. CONCLUSION.
We affirm the agency decision and the trial court's ruling affirming the agency decision.
AFFIRMED ON APPEAL AND CROSS-APPEAL.